WEBVTT - Biden's Latest Judicial Nominees 0:00:00.000 --> 0:00:02.560 When you may have Texas on a list, but that 0:00:02.680 --> 0:00:05.600 wasn't enough for the Supreme Court to list Texas on 0:00:05.640 --> 0:00:09.920 its docket. California bands government funded travel to Texas and 0:00:10.000 --> 0:00:14.600 eleven other states it sees is having anti LGBTQ policies. 0:00:15.200 --> 0:00:17.959 So the Lone Star state took its case against the 0:00:18.000 --> 0:00:21.520 Golden State straight to the Supreme Court, but the court 0:00:21.600 --> 0:00:25.200 turned Texas away. Joining me is Steve Sanders, a professor 0:00:25.239 --> 0:00:28.880 at Indiana University's Mars School of Law. So Steve tell 0:00:28.960 --> 0:00:34.479 us about this California law. So in TwixT California passed 0:00:34.479 --> 0:00:37.479 a law that basically said that the state would not 0:00:37.640 --> 0:00:41.080 pay for any state funded travel, in other words, traveled 0:00:41.120 --> 0:00:44.280 by its employees or anyone else who has the tab 0:00:44.360 --> 0:00:48.960 paid by the states taxpayers for travel to states which 0:00:49.240 --> 0:00:53.640 have decided either to repeal protections for sexual orientation and 0:00:53.880 --> 0:00:58.840 gender identity, or states that have carveouts. So, for example, 0:00:58.880 --> 0:01:01.760 a state by Texas does not have a state wide 0:01:01.840 --> 0:01:05.120 law that protects gay or lesbian or transgender people, but 0:01:05.160 --> 0:01:08.160 a lot of cities in Texas do. But nonetheless Texas 0:01:08.240 --> 0:01:11.319 law says even those cities have to have carve outs 0:01:11.360 --> 0:01:15.080 that if somebody is motivated by religious belief, they may 0:01:15.120 --> 0:01:20.080 continue to discriminate against LGBTQ people. For example, a social 0:01:20.120 --> 0:01:24.040 services provider that has a contract with a Texas city 0:01:24.160 --> 0:01:26.320 does not have to do business or does not have 0:01:26.400 --> 0:01:30.200 to allow lgbt people to be clients or eligible for 0:01:30.280 --> 0:01:33.600 its services. So California basically decided it was going to 0:01:34.160 --> 0:01:37.040 try to punish these states to try to have an 0:01:37.080 --> 0:01:41.640 impact on other states by depriving them of travel, business 0:01:41.640 --> 0:01:45.520 and travel dollars from California. And so here we are 0:01:45.600 --> 0:01:49.200 now a case where Texas wanted to sue California at 0:01:49.200 --> 0:01:53.040 the United States Supreme Court. Is it unusual? Is what 0:01:53.120 --> 0:01:57.480 California is doing unusual? Trying to evaluate what's happening in 0:01:57.520 --> 0:02:01.320 other states and punish those states. So I'm not aware 0:02:01.320 --> 0:02:03.440 of any other state that has tried to do this, 0:02:03.600 --> 0:02:07.200 at least to this extent. And arguably it it does 0:02:07.440 --> 0:02:10.600 violate some principles of federalism. You know, we think that 0:02:10.639 --> 0:02:13.880 if if we take the idea of federalism seriously that 0:02:14.040 --> 0:02:18.160 states should be laboratories of democracy, that what policies are 0:02:18.240 --> 0:02:22.720 right for California aren't necessarily right for Texas or South 0:02:22.720 --> 0:02:26.800 Carolina or Alabama, for example, This is California trying to 0:02:26.840 --> 0:02:29.960 push the issue a little bit, essentially saying, we think 0:02:30.120 --> 0:02:34.919 that rights for LGBTQ people are so important, and we 0:02:35.000 --> 0:02:38.360 believe that the sort of carve outs that some of 0:02:38.360 --> 0:02:42.640 these other states are providing from nondiscrimination laws are so 0:02:43.040 --> 0:02:46.560 unjustified that we're going to go further. We're going to say, 0:02:46.680 --> 0:02:48.960 not only if you're in California, do you have to 0:02:49.000 --> 0:02:51.760 abide by our policies. We're going to say, we don't 0:02:51.800 --> 0:02:55.960 want to even have our state taxpayer dollars associated with 0:02:56.000 --> 0:02:58.600 you if you don't have the kinds of policies that 0:02:58.680 --> 0:03:01.320 we believe you ought to have. And you can see 0:03:01.360 --> 0:03:03.560 that if states got into this business a lot, it 0:03:03.560 --> 0:03:06.240 would be hard to know what the stopping point is. 0:03:06.280 --> 0:03:08.280 So some of the states that are the target of 0:03:08.320 --> 0:03:12.360 California have past resolutions or done other things disapproving of 0:03:12.480 --> 0:03:16.720 California's immigration policies or its taxing policies, and so it's 0:03:16.760 --> 0:03:21.320 an interesting debate about what exactly federalism should mean. So 0:03:21.520 --> 0:03:25.760 tell us what Texas has claimed against California. Are here 0:03:25.800 --> 0:03:29.320 what its argument is. There are a couple of different 0:03:29.360 --> 0:03:34.040 provisions in the Constitution which deal with the relationship of 0:03:34.200 --> 0:03:37.120 states to each other. And so, for example, the Federal 0:03:37.160 --> 0:03:41.240 Constitution has something called the Commerce Clause, which is understood 0:03:41.280 --> 0:03:45.680 to put the authority to regulate interstate commerce broadly defined 0:03:45.720 --> 0:03:47.560 in the hands of the federal government. And so if 0:03:47.640 --> 0:03:53.360 states engage in activity that is protectionist or discriminatory against 0:03:53.440 --> 0:03:57.400 the business interests or the economic interests of other states, 0:03:58.000 --> 0:04:01.360 those kinds of laws can potentially be challenged by the 0:04:01.480 --> 0:04:04.480 states that feel burdened by them. It's a principle that 0:04:04.880 --> 0:04:07.360 we should have free movement of goods and people in 0:04:07.400 --> 0:04:10.800 this country, and states shouldn't do things that are overtly 0:04:10.920 --> 0:04:15.040 protectionist seeking to give an advantage to their own businesses 0:04:15.040 --> 0:04:17.800 and economic interest over those of other states. And so 0:04:18.120 --> 0:04:21.359 that was one theory that Texas brought. There's something in 0:04:21.360 --> 0:04:25.080 the Constitution, it's called the Article for Privileges and Immunities 0:04:25.160 --> 0:04:29.400 Clause that basically says one state can't treat the citizens 0:04:29.440 --> 0:04:33.800 of other states disadvantageously or in a way that's worse 0:04:33.839 --> 0:04:37.600 than they treat their own citizens. And finally, Texas brought 0:04:37.640 --> 0:04:41.360 out a claim under the Fourteenth Amendment Equal Protection Clause, 0:04:41.400 --> 0:04:45.880 which basically says that this is a violation of equal 0:04:45.920 --> 0:04:50.160 protection for the equal protection rights of Texas citizens who 0:04:50.200 --> 0:04:54.360 are being disadvantaged by California, that they're essentially their right 0:04:54.440 --> 0:04:58.039 to have their religious liberty protected by Texas is being 0:04:58.080 --> 0:05:02.200 infringed upon by californ What was California's response to this? 0:05:02.920 --> 0:05:08.080 So California is essentially saying that given the very limited 0:05:08.200 --> 0:05:11.400 scope that the Supreme Court has has given over the 0:05:11.480 --> 0:05:14.840 years to these kinds of suits by one state against 0:05:14.920 --> 0:05:19.240 another state, that essentially Texas itself as a state, as 0:05:19.279 --> 0:05:23.479 a sovereign, couldn't claim a sufficient sort of injury. Now 0:05:23.800 --> 0:05:26.919 Texas says it is suing essentially on behalf of the 0:05:27.000 --> 0:05:30.719 citizens and businesses in its own state. States have what's 0:05:31.240 --> 0:05:34.599 referred to as the parents patrii power, which is basically 0:05:34.640 --> 0:05:37.120 the sort of government power to look out for and 0:05:37.200 --> 0:05:40.760 protect welfare of its own citizens, its own subjects. But 0:05:41.040 --> 0:05:44.400 California is essentially saying, look, if there are businesses or 0:05:44.440 --> 0:05:48.880 economic interests in Texas that feel they are being disadvantaged, 0:05:49.120 --> 0:05:51.320 then they can file a lawsuit that is a common 0:05:51.440 --> 0:05:54.640 kind of suit under the Commerce Clause that is filed 0:05:54.680 --> 0:05:58.719 when one state's policies are said to burden the people 0:05:58.800 --> 0:06:02.200 in businesses and economic interests in another state. Typically it's 0:06:02.240 --> 0:06:04.719 not the target state that sues. It is the people 0:06:04.760 --> 0:06:08.120 who are most directly affected by the policy that say, hey, 0:06:08.160 --> 0:06:12.920 California is exceeding the bounds of proper behavior under the Constitution. 0:06:13.400 --> 0:06:17.000 So Steve Texas wanted to sue California directly at the 0:06:17.080 --> 0:06:21.000 Supreme Court under what's called its original jurisdiction. Tell us 0:06:21.000 --> 0:06:24.479 about that. Yeah, The vast majority of the cases that 0:06:24.560 --> 0:06:27.719 the Supreme Court here's our appeals. They are cases that 0:06:27.800 --> 0:06:30.960 come up from the federal circuit courts and the Supreme 0:06:31.000 --> 0:06:34.000 Court decides there's an important enough question that it needs 0:06:34.040 --> 0:06:37.120 to step in and resolve it, or sometimes cases that 0:06:37.200 --> 0:06:40.680 come from state supreme courts but which contain a question 0:06:40.720 --> 0:06:44.919 of federal law or Constitution law. But the Constitution's Article 0:06:45.000 --> 0:06:48.960 three does provide a very limited category of cases that 0:06:49.040 --> 0:06:52.400 the Supreme Court can hear under what's called its original jurisdiction. 0:06:52.440 --> 0:06:55.240 That is, you come directly to the Supreme Court to 0:06:55.480 --> 0:06:58.240 bio your case. You are not coming up through a 0:06:58.440 --> 0:07:00.560 lower court or a state court in which you have 0:07:00.760 --> 0:07:05.200 previously litigated. One of the very few categories of cases 0:07:05.240 --> 0:07:09.760 for original jurisdiction are suits by one state against another state. 0:07:10.080 --> 0:07:13.679 Presumably the framers thought those were so important and so 0:07:13.760 --> 0:07:17.440 sensitive that lower federal courts, which are located in one 0:07:17.520 --> 0:07:20.880 state or the other might have a bias, perhaps can't 0:07:20.880 --> 0:07:24.080 be trusted to be even handed, and so that is 0:07:24.080 --> 0:07:27.840 of such kind of cosmic significance potentially that only the 0:07:27.880 --> 0:07:31.800 Supreme Court should hear it. The consequence is that the 0:07:31.880 --> 0:07:36.240 Supreme Court turns down most of the cases where one 0:07:36.280 --> 0:07:38.760 state is seeking to sue an the other states simply 0:07:38.800 --> 0:07:41.720 declines to hear them. And the Supreme Court has not 0:07:41.880 --> 0:07:47.200 only original jurisdiction over these cases, it has exclusive jurisdiction. 0:07:47.280 --> 0:07:50.800 That means Texas can't go back to a federal district 0:07:50.840 --> 0:07:55.640 court and violets lawsuit against California. It's the Supreme Court 0:07:55.800 --> 0:07:58.640 or nothing for Texas soul. It turns out here the 0:07:58.640 --> 0:08:02.320 Court's jurisdiction is not only original but exclusive, but it 0:08:02.400 --> 0:08:05.240 may be exclusive that it's not mandatory. And so again 0:08:05.240 --> 0:08:09.120 the Court believes it has the right to essentially decline 0:08:09.160 --> 0:08:11.520 to hear a case like this if it wants to. 0:08:12.360 --> 0:08:15.000 Do we have any idea why the Supreme Court turned 0:08:15.000 --> 0:08:18.560 down this case, We can only speculate. And so when 0:08:18.600 --> 0:08:22.280 when a Court declines to allow the filing of a complaint, 0:08:22.280 --> 0:08:24.920 which is technically what this is called. In this instance, 0:08:25.200 --> 0:08:27.680 they don't explain themselves if they don't issue an opinion, 0:08:27.680 --> 0:08:31.000 They just issue online order that says Texas is request 0:08:31.080 --> 0:08:34.120 to file it if complaint is denied. What we did 0:08:34.160 --> 0:08:37.680 get though, was a fairly lengthy descent from Justice as 0:08:37.720 --> 0:08:41.240 Alito and Thomas, and they were really careful not to 0:08:41.400 --> 0:08:43.480 say that they have a side or they have a 0:08:43.520 --> 0:08:47.480 particular view of the merits of Texas position. Justice Alito 0:08:47.559 --> 0:08:50.680 and Justice Thomas are basically saying the Supreme Court doesn't 0:08:50.720 --> 0:08:54.640 have discretion over something like this. Their interpretation both of 0:08:55.160 --> 0:08:59.000 the Constitution and of the relevant federal statutes that govern 0:08:59.120 --> 0:09:02.560 the jurisdiction of the Supreme Court. Their interpretation is the 0:09:02.600 --> 0:09:05.840 Supreme Court doesn't have discretion, that this is the only 0:09:06.200 --> 0:09:09.480 forum the Texas has available, and everybody should have at 0:09:09.520 --> 0:09:12.400 least one chance to make their legal arguments. So unless 0:09:12.440 --> 0:09:15.600 Congress changes the law and allows a state to file 0:09:15.640 --> 0:09:18.520 a case like this in the lower court, their position 0:09:18.640 --> 0:09:21.560 is the Supreme Court doesn't have the discretion to decline 0:09:21.559 --> 0:09:24.960 to hear something like this, and that state sovereignty and 0:09:25.040 --> 0:09:28.920 state dignity are sufficient enough interests that the Court should 0:09:28.920 --> 0:09:31.480 take on this case. Now, the Court does here some 0:09:31.640 --> 0:09:36.480 original jurisdiction cases, they're relatively rare. They typically involve things 0:09:36.559 --> 0:09:40.440 like a boundary disputes or water rights or something like that. 0:09:40.520 --> 0:09:44.120 It's much more rare for a sort of policy difference 0:09:44.240 --> 0:09:47.640 like this to come to the Court under its original jurisdiction. 0:09:47.760 --> 0:09:51.080 One could speculate that, you know, some of the justices 0:09:51.120 --> 0:09:53.840 sort of just may have decided, you know, we're already 0:09:53.880 --> 0:09:57.400 involved in culture war issues as it is. We're already 0:09:57.440 --> 0:10:01.280 involved in enough issues related to LGBT key rights or 0:10:01.440 --> 0:10:05.000 religious liberty or both that we don't need this case. 0:10:05.080 --> 0:10:08.520 That perhaps this is just the Texas Attorney General, who 0:10:08.600 --> 0:10:11.600 is pretty well known as an arch conservative and a 0:10:11.640 --> 0:10:14.880 sort of national figure and conservative political circles. You know, 0:10:14.960 --> 0:10:17.240 that he just wants to keep the pot boiling on 0:10:17.320 --> 0:10:20.480 these religion and culture war issues, and you know, sort 0:10:20.480 --> 0:10:22.640 of we don't need to be spending our time there. 0:10:22.679 --> 0:10:26.040 If there is merit to this, other people in Texas 0:10:26.080 --> 0:10:28.640 can find a way to sue over the policy and 0:10:28.960 --> 0:10:32.000 come up through the courts through the normal process. It 0:10:32.080 --> 0:10:35.840 struck me that California put Texas on the list after 0:10:35.920 --> 0:10:39.480 it passed a law that lets foster care and adoption 0:10:39.600 --> 0:10:43.880 organizations refused to work with same sex couples on religious grounds, 0:10:43.960 --> 0:10:46.920 and gay adoptions are before the Court this term in 0:10:46.960 --> 0:10:51.280 a very controversial, high profile case. So could it be 0:10:51.559 --> 0:10:54.720 that the justices don't want to handle another case that 0:10:54.760 --> 0:10:59.800 pits religious rights against gay rights. I think that's probably correct. Again, 0:10:59.840 --> 0:11:02.400 I think that the Court has had regular encounters with 0:11:02.440 --> 0:11:04.680 that issue. It has a case that it's about to 0:11:05.040 --> 0:11:08.000 decide or issue an opinion on sometime in the next 0:11:08.040 --> 0:11:10.280 month or two related to that issue. It comes out 0:11:10.280 --> 0:11:13.840 of the City of Philadelphia and involves the Philadelphia Catholic 0:11:14.000 --> 0:11:17.439 Charities Organization and whether a religious organization like that can 0:11:17.520 --> 0:11:21.880 essentially take money from the government but then refused to 0:11:21.920 --> 0:11:25.520 serve everybody still reserve the right to discriminate on the 0:11:25.559 --> 0:11:28.880 basis of sexual orientation. Not too long ago, the Court 0:11:28.920 --> 0:11:32.880 had a similar encounter with lgbt Q rights and religion 0:11:32.920 --> 0:11:36.040 in the Masterpiece Cake Shop case. And so, um, you 0:11:36.040 --> 0:11:38.080 know again, I think the the instinct of the Court 0:11:38.160 --> 0:11:41.600 might be understandable to say, you know, there are times 0:11:41.800 --> 0:11:46.120 when the sovereign dignity of a state is truly an issue. 0:11:46.800 --> 0:11:50.640 This is more a policy spat a difference in opinion, 0:11:50.679 --> 0:11:53.880 the difference in views. Maybe California is being heavy handed 0:11:53.920 --> 0:11:57.679 here and essentially trying to not only govern its own citizens, 0:11:57.720 --> 0:12:00.600 but trying to force people in other eates to come 0:12:00.600 --> 0:12:04.120 around to California's point of view or suffer the potential 0:12:04.160 --> 0:12:06.640 loss of travel money and tax revenue and so forth. 0:12:07.080 --> 0:12:10.440 Maybe California is over reaching that the Court often takes 0:12:10.440 --> 0:12:14.200 the position on cases that, look, politics is a messy business, 0:12:14.640 --> 0:12:18.520 and there is a difference between issues of true constitutional 0:12:18.640 --> 0:12:24.520 rights or true constitutional principle versus the messiness of politics. 0:12:24.600 --> 0:12:27.440 And my guess is that a majority of the justices 0:12:27.480 --> 0:12:30.800 saw this case is fitting into that latter category. Thanks 0:12:30.800 --> 0:12:33.960 for being the Bloomberg Law shows, Steve. That's Steve Sanders, 0:12:33.960 --> 0:12:39.160 a professor at Indiana University's Morris School of Law. President 0:12:39.240 --> 0:12:42.360 Joe Biden has issued a second list of judicial nominees, 0:12:42.559 --> 0:12:45.280 with nominees to the district courts in the Western District 0:12:45.360 --> 0:12:49.640 of Washington and New Jersey. All three have backgrounds representing 0:12:49.720 --> 0:12:54.080 non corporate clients, answering a call to add experiential diversity 0:12:54.160 --> 0:12:57.120 to the bench. Joining me is professor Carl Tobias of 0:12:57.160 --> 0:13:00.839 the University of Richmond Law School. Carl, what struck you 0:13:01.000 --> 0:13:06.000 most about the latest list? Well, first, that the Biden 0:13:06.040 --> 0:13:12.520 administration is continuing to expedite and plan well, Uh, it's 0:13:12.640 --> 0:13:17.040 rollout of nominees uh. And continuing to do that after 0:13:17.080 --> 0:13:25.120 the first extremely qualified, mainstream and diverse group of eleven. Uh. 0:13:25.240 --> 0:13:31.040 These three, though, also show that the Biden administration is 0:13:31.080 --> 0:13:38.079 studying wise priorities in terms of the vacancies it is 0:13:38.120 --> 0:13:44.240 attempting to fill, because really the worst case scenario in 0:13:44.280 --> 0:13:48.520 the country is the Western District of Washington. There were 0:13:48.559 --> 0:13:54.080 two nominees for that court. The court has five vacancies 0:13:54.640 --> 0:13:59.800 out of seven active judge ships, and that puts the 0:14:00.040 --> 0:14:04.240 dream pressure on all of the other judges. And it 0:14:04.360 --> 0:14:08.360 has been in that condition for some time, and so 0:14:08.600 --> 0:14:13.320 all of those vacancies are emergencies and have been and 0:14:13.400 --> 0:14:16.520 so it's very important to fill those as soon as possible. 0:14:17.000 --> 0:14:21.880 And so the President sent forward to well qualified, mainstream, 0:14:21.920 --> 0:14:27.120 diverse nominees for that court, and that's valuable. The other 0:14:27.320 --> 0:14:31.840 nominee was the third nominee for six out of seventeen 0:14:31.920 --> 0:14:36.560 vacancies on the New Jersey District Court, which have been 0:14:37.480 --> 0:14:41.160 troubling the court for a long time. It UH is 0:14:42.600 --> 0:14:48.120 suffering under six out of seventeen active judges being vacant UH, 0:14:48.200 --> 0:14:52.480 and the pressure is enormous there too, And so it's 0:14:52.480 --> 0:14:58.160 great that the administration is setting priorities in these courts 0:14:58.160 --> 0:15:02.080 that are desperate to have their vacancy still. And so 0:15:02.200 --> 0:15:05.680 that's really the singular thing I see in the second group. 0:15:06.080 --> 0:15:11.400 Are these courts desperate because the Democratic senators in those 0:15:11.840 --> 0:15:14.520 didn't step up to the plate to either work with 0:15:14.560 --> 0:15:19.640 the White House under Trump or suggest nominees. Well, I 0:15:19.680 --> 0:15:24.040 think the Senators tried very hard to cooperate with the 0:15:24.040 --> 0:15:29.480 White House all four years, but they never could reach 0:15:29.520 --> 0:15:32.120 agreement with the White House. And in fact, I think 0:15:32.120 --> 0:15:35.360 it's the other way around. Trump and the White House 0:15:35.400 --> 0:15:38.480 and the Justice Department did not reach out or try 0:15:38.480 --> 0:15:43.640 to cooperate with the senators UM. But now it looks 0:15:43.640 --> 0:15:48.120 like the White House is very much coordinating with UH 0:15:48.200 --> 0:15:53.840 and seeking input from the Senators, and they have brought 0:15:53.920 --> 0:15:58.080 forth very highly qualified nominees. For example, in this hearing 0:15:58.160 --> 0:16:02.800 last week on Wednesday, of course too, UH nominees from 0:16:02.840 --> 0:16:09.560 New Jersey were there and testified. And so they'll move 0:16:09.640 --> 0:16:13.360 quickly through and provide some relief. And in the third nominee, 0:16:13.400 --> 0:16:20.000 Christino hearn for that same district, was nominated just last week, 0:16:20.040 --> 0:16:25.200 and I assume she'll move quickly as well. Progressives criticized 0:16:25.640 --> 0:16:30.080 the New Jersey nominee for her work representing management and 0:16:30.120 --> 0:16:32.640 said that the New Jersey Trial Court nominee is a 0:16:32.680 --> 0:16:36.400 former corporate lawyer and a former federal prosecutor didn't fit 0:16:37.040 --> 0:16:41.760 the professional diversity that the White House has asked for. Well, 0:16:42.440 --> 0:16:48.280 every nominee is not going to satisfy everybody, as I 0:16:48.360 --> 0:16:52.640 understand it. Oh, Hearne has several decades of valuable experience, 0:16:52.760 --> 0:16:58.960 especially employment litigation. Uh. And almost all of the nominees 0:16:59.080 --> 0:17:06.680 today have not been defended side civil attorneys but rather 0:17:07.600 --> 0:17:13.960 uh former federal public defenders and uh not prosecutors either. 0:17:14.520 --> 0:17:19.600 Uh and so uh it seems like the White House, 0:17:20.040 --> 0:17:24.400 with the vast majority of nominees to date, is focusing 0:17:25.119 --> 0:17:28.440 on experiential diversity. And if you look at the other two, 0:17:28.720 --> 0:17:31.640 Domini said the hearing last week from New Jersey, you 0:17:31.680 --> 0:17:36.280 can see that very clearly. Julian Niels, who was an 0:17:36.320 --> 0:17:43.480 Obama appointee, who's the GOP majority in tam refused to confirm, 0:17:43.880 --> 0:17:46.200 even though he came out of committee with a vote 0:17:46.920 --> 0:17:54.600 UM and a first for the country. A Zahid uh Jureshi, 0:17:55.000 --> 0:17:57.320 who is a magistrate judge in New Jersey, would be 0:17:57.400 --> 0:18:01.080 the first Muslim appointed to the federal Old Bench. And 0:18:01.160 --> 0:18:06.200 he has a wealth of experience in the military UH 0:18:06.200 --> 0:18:10.040 and in the courts. And they both were well received 0:18:10.080 --> 0:18:15.639 at the hearing by Democrats and Republicans. And so I 0:18:15.840 --> 0:18:19.359 think that the administration is keeping its commitments in terms 0:18:19.359 --> 0:18:26.080 of diversity in terms of ethnicity, gender, sexual orientation, and 0:18:26.760 --> 0:18:31.560 experiential diversity. UM. But that doesn't mean there won't be 0:18:31.640 --> 0:18:38.680 some well qualified mainstream UH nominees who UM have practiced 0:18:38.840 --> 0:18:42.439 on the side of corporations m and but there have 0:18:42.480 --> 0:18:45.560 been very few so far. Biden's first two Federal Appeals 0:18:45.600 --> 0:18:48.960 Court nominees came before the Senate Judiciary Committee last week 0:18:49.040 --> 0:18:53.040 for hearing. They described how their experience as public defenders 0:18:53.080 --> 0:18:56.399 would influence their approach on the circuit court bench. The 0:18:56.440 --> 0:18:59.960 spotlight was on Judge Katangi Brown Jackson, who currently says 0:19:00.000 --> 0:19:03.359 as a Washington d C. Federal Trial Court judge. She's 0:19:03.400 --> 0:19:06.439 nominated to the US Court of Appeals for the d C. Circuit, 0:19:06.720 --> 0:19:10.919 and it's considered a potential favorite for Supreme Court vacancy. 0:19:11.080 --> 0:19:13.520 I've been talking to Carl Tobias, a professor at the 0:19:13.600 --> 0:19:17.080 University of Richmond Law School. Carl, the hearing turned out 0:19:17.119 --> 0:19:21.320 to be pretty mild, even though before the hearing, conservative 0:19:21.359 --> 0:19:24.399 activists were pointing to decisions that Jackson has made as 0:19:24.400 --> 0:19:27.640 a federal trial court judge that were reversed on appeal, 0:19:28.000 --> 0:19:31.320 But Republicans didn't really press her on that, and in fact, 0:19:31.400 --> 0:19:34.440 it was a pretty mild hearing. Why do you think 0:19:34.480 --> 0:19:38.080 the Republicans chose not to press her on any controversial 0:19:38.080 --> 0:19:43.320 issues because she's such an excellent candidate. She has a 0:19:43.320 --> 0:19:47.600 wealth of experience, uh in a whole number of different contexts. 0:19:47.600 --> 0:19:50.920 She served on the Sentencing Commission. Republican senators praised her 0:19:50.960 --> 0:19:55.080 for her quality work there, and she's been a district 0:19:55.160 --> 0:19:59.000 judge in the District of DC in two thousand thirteen. 0:20:00.040 --> 0:20:02.360 And I think the reason they didn't bring up her 0:20:02.520 --> 0:20:05.520 reversals because there was such a tiny percentage. I think 0:20:05.600 --> 0:20:08.600 the figure I saw was something like two or one percent, 0:20:09.680 --> 0:20:16.800 and she's written some five hundred decisions, and so I 0:20:16.800 --> 0:20:22.320 think the reason why they didn't attack her was that 0:20:22.800 --> 0:20:26.720 she had answers for every question they asked. UM, and 0:20:26.880 --> 0:20:31.639 so it was an amazing I think, very high quality performance, 0:20:32.040 --> 0:20:36.840 straightforward and just saying she um is very independent as 0:20:36.840 --> 0:20:41.879 a judge. When accused of writing the McGann opinion in 0:20:41.920 --> 0:20:44.760 a way that would promote herselves, she just said, no, 0:20:45.160 --> 0:20:48.080 I decide the cases on the facts and the law, 0:20:48.480 --> 0:20:53.879 and um, I am completely independent of any administrations that 0:20:54.080 --> 0:21:00.480 she had reversed, both Trump administration decisions and Obama administration decisions. UM. 0:21:00.520 --> 0:21:05.200 And I just thought she was very persuas said, extremely articulate, clear, 0:21:06.119 --> 0:21:11.320 um and engaging. But let's face it, in those hearings, 0:21:11.359 --> 0:21:14.919 if you want to, you can always find something, some points, 0:21:15.080 --> 0:21:18.960 some case to challenge the candidate with or to criticize 0:21:18.960 --> 0:21:23.800 the candidate for. So might the Republican senators have been 0:21:23.840 --> 0:21:29.080 trying to present a different appearance from that of the 0:21:29.160 --> 0:21:34.760 Democratic senators during the hearings for Trump's circuit nominees. Well 0:21:34.920 --> 0:21:40.520 maybe that I was wondering, as you suggest, why they 0:21:40.560 --> 0:21:47.000 weren't more vigorous and rigorous in their questioning, But I 0:21:47.040 --> 0:21:50.680 think it's more due to the high quality of the 0:21:50.840 --> 0:21:55.040 nominees in that group, who were at the hearing, and 0:21:55.080 --> 0:21:59.520 if you listen to their responses, they were responsive, clear, 0:22:00.160 --> 0:22:06.280 and uh, what you would expect of an independent, excellent jurist. 0:22:06.640 --> 0:22:10.040 And so it's difficult to lay a glove on somebody 0:22:10.119 --> 0:22:14.480 who uh is so strong uh. And I think that 0:22:14.600 --> 0:22:16.840 was the case with Judge Jackson, and I think it 0:22:16.960 --> 0:22:20.159 was the case with the seventh Circuit nominee, and the 0:22:20.200 --> 0:22:24.720 same with the three district nominees. They are all very strong. Um, 0:22:24.880 --> 0:22:29.800 candid forthright, clear, um, exactly what I think you'd want 0:22:29.960 --> 0:22:32.840 in an article three. Judge, I know that some of 0:22:32.880 --> 0:22:36.960 the Republican Senators were critical of Demand Justice, and we're 0:22:37.000 --> 0:22:41.560 painting this picture that Demand Justice is behind Biden's lists? 0:22:42.640 --> 0:22:44.960 Is that the case? I mean, the Federalist Society was 0:22:45.040 --> 0:22:50.359 behind Trump's lists? Is Demand Justice behind these lists? Well? 0:22:50.400 --> 0:22:57.040 Demand Justice in American Constitution Society submitted suggested lists to 0:22:57.119 --> 0:23:01.920 the White House. But that, as Democrats pointed out on 0:23:01.960 --> 0:23:07.600 the committee, is strikingly in contrast to having someone like 0:23:07.760 --> 0:23:12.480 Leonard Leo, executive vice president of the Federalist Society run 0:23:13.000 --> 0:23:18.080 the circuit nominee operations for the Trump White House. That's 0:23:18.080 --> 0:23:23.440 why we have fifty four extremely conservative Trump appointees now 0:23:23.480 --> 0:23:27.720 sitting on the federal appeals courts, and that's different. That 0:23:27.920 --> 0:23:33.880 was essentially outsourced to the Federalist Society UM by Trump, 0:23:34.280 --> 0:23:38.359 and so I don't think Demand Justice has anything like 0:23:38.760 --> 0:23:43.280 that kind of influence in this administration. It's being run 0:23:43.280 --> 0:23:49.280 by Biden uh and his very qualified team of people 0:23:49.440 --> 0:23:52.560 in the White House, starting with Diana Remus, the White 0:23:52.600 --> 0:23:55.160 House Council, and of course the people of Justice Department 0:23:55.640 --> 0:23:58.640 like Marrick Garland, who are not going to add force 0:23:58.720 --> 0:24:04.000 to anybody. So UM. Turning to a different topic, Tomorrow 0:24:04.200 --> 0:24:07.240 is the last day of the Supreme Court term, and 0:24:07.480 --> 0:24:12.160 often when justice is retire they retire on the last 0:24:12.240 --> 0:24:16.399 day of oral arguments. Sometimes they retire after all the 0:24:16.440 --> 0:24:19.960 decisions are in. What are you hearing? What's the likelihood 0:24:20.160 --> 0:24:24.600 of justice? Briar retiring of Demand Justice is really trying 0:24:24.600 --> 0:24:27.840 to put the pressure on him. Well, I haven't heard 0:24:27.880 --> 0:24:30.639 anything that you haven't heard or that hasn't been in 0:24:30.680 --> 0:24:34.760 the public press. I do agree that a number of 0:24:35.480 --> 0:24:42.560 individuals and groups are the guessing that Justice prior stepped down. UM, 0:24:42.600 --> 0:24:47.200 But I think as Biden has himself has said, we're 0:24:47.200 --> 0:24:51.320 not doing that. That's justice Briar's decision, and I think 0:24:51.359 --> 0:24:58.080 that's the appropriate way to handle that. UM an important decision. Uh, 0:24:58.119 --> 0:25:05.600 he's then devoted public servant, a fine justice, and UM, 0:25:05.640 --> 0:25:07.880 I think he'll come to his own decision. I will 0:25:08.040 --> 0:25:10.840 guess I'd be surprised if he were to do it tomorrow. 0:25:11.800 --> 0:25:14.480 But there are other opportunities, as you suggest, and he 0:25:14.640 --> 0:25:19.440 may see those depending on how he thinks this truth. 0:25:20.119 --> 0:25:22.480 Thanks for being in the Bloomberg Laws Show, Carl. That's 0:25:22.480 --> 0:25:25.840 Professor Carl Tobias of the University of Richmond Law School. 0:25:26.240 --> 0:25:28.440 And that's it for this edition of the Bloomberg Law Show. 0:25:28.680 --> 0:25:31.040 I'm June Grosso and you're listening to Bloomberg