1 00:00:00,000 --> 00:00:02,960 Speaker 1: Bloomberg Law is brought to you by Commonwealth Financial Network. 2 00:00:03,200 --> 00:00:05,880 Speaker 1: When it's time to change the conversation, talk with a 3 00:00:05,920 --> 00:00:08,799 Speaker 1: broker dealer r I A that's ready to listen, Call 4 00:00:08,920 --> 00:00:12,280 Speaker 1: eight six six four six to three six three eight 5 00:00:12,680 --> 00:00:16,160 Speaker 1: or visit Commonwealth dot com to learn more. June Thanks 6 00:00:16,239 --> 00:00:20,319 Speaker 1: Michael Senate Republicans refusal to even hold hearings for a 7 00:00:20,400 --> 00:00:23,639 Speaker 1: justice to replace the late Antonin Scalia has been the 8 00:00:23,680 --> 00:00:28,120 Speaker 1: subject of much debate, concern, and criticism, particularly in light 9 00:00:28,160 --> 00:00:32,040 Speaker 1: of the favorable comments made about President Barack Obama's nominee, 10 00:00:32,120 --> 00:00:35,839 Speaker 1: Judge Merrick Garland. That's overshadowed the fact that there are 11 00:00:35,880 --> 00:00:39,640 Speaker 1: now ninety four openings for federal judges. No judge has 12 00:00:39,640 --> 00:00:43,920 Speaker 1: been confirmed since July six, although the Judiciary Committee has 13 00:00:43,960 --> 00:00:48,040 Speaker 1: approved twenty moderate district court nominees on a voice vote 14 00:00:48,159 --> 00:00:51,920 Speaker 1: without dissent. Professor Carl Tobias of the University of Richmond 15 00:00:51,960 --> 00:00:54,400 Speaker 1: Law School wrote an op ed in The Los Angeles 16 00:00:54,480 --> 00:00:58,280 Speaker 1: Times arguing the necessity to give these nominees a final 17 00:00:58,360 --> 00:01:02,400 Speaker 1: confirmation vote during the lame Duct session. Professor Tobias joins 18 00:01:02,480 --> 00:01:05,680 Speaker 1: US now, along with Professor Charles Gardner j of Indiana 19 00:01:05,800 --> 00:01:09,760 Speaker 1: University More School of Law, Carl, I can't remember the 20 00:01:09,840 --> 00:01:13,520 Speaker 1: last time there was not a high number of federal 21 00:01:13,680 --> 00:01:18,920 Speaker 1: judicial vacancies. Are these vacancies affecting the administration of justice 22 00:01:18,959 --> 00:01:22,880 Speaker 1: at this point? Just? They are. It just means more 23 00:01:22,920 --> 00:01:26,880 Speaker 1: pressure is placed on the other judges uh to carry 24 00:01:26,959 --> 00:01:32,320 Speaker 1: the substantial caseloads, and it means justice delayed as justice denied, 25 00:01:32,480 --> 00:01:36,120 Speaker 1: so that litigants can't have their day in court, especially 26 00:01:36,120 --> 00:01:42,160 Speaker 1: in civil cases. Charles, what is there any statement at 27 00:01:42,160 --> 00:01:44,720 Speaker 1: all from the Senate or the Republicans as to why 28 00:01:44,760 --> 00:01:49,240 Speaker 1: they're not moving forward with these vacancies. Well, I mean 29 00:01:49,280 --> 00:01:54,520 Speaker 1: there's a tradition here, uh for you know, for many years, uh, 30 00:01:54,880 --> 00:01:58,240 Speaker 1: confirmation slowed down in the latter portion of an administration 31 00:01:58,320 --> 00:02:00,920 Speaker 1: and and towards the very end. I think the the 32 00:02:01,000 --> 00:02:04,480 Speaker 1: idea is, we can we can stall these guys out, 33 00:02:04,640 --> 00:02:09,480 Speaker 1: and we can name uh the replacements with people whose 34 00:02:09,520 --> 00:02:12,400 Speaker 1: ideological inclinations are closer to our own. In other words, 35 00:02:12,400 --> 00:02:15,919 Speaker 1: we'll just wait for a Republican president to jump in 36 00:02:16,000 --> 00:02:18,519 Speaker 1: and and and take their place. It's it's it's it's 37 00:02:18,520 --> 00:02:21,080 Speaker 1: pretty clear that that's what's going on. If you're asking 38 00:02:21,120 --> 00:02:23,839 Speaker 1: for any sort of explanation. It's you know, you can 39 00:02:24,320 --> 00:02:28,120 Speaker 1: it tends to it heads you down the road of 40 00:02:28,120 --> 00:02:30,440 Speaker 1: of you know, claims of judicial activism and so forth 41 00:02:30,440 --> 00:02:32,560 Speaker 1: on the part of of Obama nominees. But but the 42 00:02:32,840 --> 00:02:36,079 Speaker 1: bottom line is that they're looking for to replace these 43 00:02:36,160 --> 00:02:41,359 Speaker 1: judges with people who are Republican appointees. Carl hasn't Obama 44 00:02:41,400 --> 00:02:46,440 Speaker 1: had a difficult time getting his federal judicial appointments through 45 00:02:46,880 --> 00:02:50,320 Speaker 1: even since the very beginning. Yes, and I think it's 46 00:02:50,320 --> 00:02:56,880 Speaker 1: substantially due to Republicans fair to cooperate work closely with 47 00:02:57,000 --> 00:03:01,359 Speaker 1: the administration, but it's been especially urgent and especially clear 48 00:03:01,880 --> 00:03:04,400 Speaker 1: the last two years when the Republicans had the majority, 49 00:03:04,520 --> 00:03:10,320 Speaker 1: and they've managed to confirm so few judges. So that 50 00:03:10,639 --> 00:03:13,400 Speaker 1: puts us where we are today, Charles, are all the 51 00:03:13,520 --> 00:03:17,320 Speaker 1: pending nominations the kind of judges that I mean, you know, 52 00:03:17,360 --> 00:03:20,120 Speaker 1: to the extent we can tell the kind of judges 53 00:03:20,200 --> 00:03:22,520 Speaker 1: that the Republicans would have a problem with, or is 54 00:03:22,520 --> 00:03:26,000 Speaker 1: it a mixed bag of nominees? Oh, you know, I 55 00:03:26,080 --> 00:03:28,480 Speaker 1: have no reason to believe that they would have intrinsic 56 00:03:28,560 --> 00:03:32,400 Speaker 1: problem with these folks. With Historically there there you know, 57 00:03:32,520 --> 00:03:35,120 Speaker 1: there's been a lot of issues with Supreme Court appointments 58 00:03:35,120 --> 00:03:38,200 Speaker 1: and Circuit court appointments less a little bit less. Uh, 59 00:03:38,600 --> 00:03:43,200 Speaker 1: District judges have have really fallen below the radar until 60 00:03:43,360 --> 00:03:47,640 Speaker 1: until recently. Everything is becoming political in this polarized environment, 61 00:03:47,720 --> 00:03:49,800 Speaker 1: and so you know, I think they want to name 62 00:03:50,160 --> 00:03:53,440 Speaker 1: Republican appointees. But that is not to say that if 63 00:03:53,440 --> 00:03:55,440 Speaker 1: they went ahead, rolled up their sleeves and looked at 64 00:03:55,480 --> 00:03:58,280 Speaker 1: these folks, that they would be able to have identifiable 65 00:03:58,320 --> 00:04:00,960 Speaker 1: problems with them. I don't think that's what's driving them 66 00:04:01,000 --> 00:04:05,800 Speaker 1: forward at this point, Carl. These are the these are 67 00:04:05,800 --> 00:04:08,800 Speaker 1: the district court judges who are basically the trial judges 68 00:04:08,840 --> 00:04:11,400 Speaker 1: in the federal system. So on the there on the 69 00:04:11,440 --> 00:04:17,640 Speaker 1: front lines, does does there? Does their political bent mean 70 00:04:17,720 --> 00:04:20,440 Speaker 1: as much as the political bent of let's say, in 71 00:04:20,520 --> 00:04:24,479 Speaker 1: a Peltic court judge. No, you're right there the workhorses 72 00:04:24,520 --> 00:04:28,800 Speaker 1: of the federal judiciary. They conducted trials, but principally they 73 00:04:28,839 --> 00:04:33,080 Speaker 1: manage the caseload and try to resolve cases at the 74 00:04:33,120 --> 00:04:37,680 Speaker 1: initial stage, and they tend to be much less ideological. 75 00:04:37,760 --> 00:04:43,800 Speaker 1: They're primarily appointed because of their competence rather than inability 76 00:04:43,839 --> 00:04:48,839 Speaker 1: to manage the cases, rather than their theological views. Just 77 00:04:48,920 --> 00:04:53,599 Speaker 1: to take a counter point done that Charles the you know, 78 00:04:53,640 --> 00:04:56,159 Speaker 1: there was that district court judge in Texas who stopped 79 00:04:56,200 --> 00:04:59,040 Speaker 1: the uh some of the immigration worked that the Obama 80 00:04:59,040 --> 00:05:02,039 Speaker 1: administration was doing. And and and there have been other examples 81 00:05:02,040 --> 00:05:04,680 Speaker 1: of this around the country with district court judges, at 82 00:05:04,760 --> 00:05:06,800 Speaker 1: least in the first instance, doing it all the you know, 83 00:05:06,839 --> 00:05:10,200 Speaker 1: doing things that were more inclined to what the Republicans 84 00:05:10,240 --> 00:05:13,160 Speaker 1: wanted than what the Democrats wanted. And of course it 85 00:05:13,200 --> 00:05:15,600 Speaker 1: does get reviewed by the appellate courts. But isn't there 86 00:05:15,600 --> 00:05:18,280 Speaker 1: an argument that from you know, from the Republican side, 87 00:05:18,279 --> 00:05:20,200 Speaker 1: that look, these folks have a lot of power at 88 00:05:20,200 --> 00:05:23,120 Speaker 1: the district court level, They hear more cases. They actually 89 00:05:23,160 --> 00:05:26,799 Speaker 1: have a lot of power over how things get decided 90 00:05:26,800 --> 00:05:29,400 Speaker 1: in the first instance, and we need to make sure 91 00:05:29,400 --> 00:05:32,599 Speaker 1: our people are in there. Sure, I mean, in defense 92 00:05:32,640 --> 00:05:36,520 Speaker 1: of Carl's point, the data show that that the ideological 93 00:05:36,560 --> 00:05:39,719 Speaker 1: influences are greatest at the Supreme Court, lesser in the 94 00:05:39,800 --> 00:05:42,839 Speaker 1: circuit courts, and lesser still at the trial court. That said, 95 00:05:42,960 --> 00:05:46,400 Speaker 1: you know, there's no question that conservative and liberal appointees 96 00:05:46,440 --> 00:05:49,200 Speaker 1: think differently about how to sentence a criminal defendant, whether 97 00:05:49,279 --> 00:05:52,159 Speaker 1: to certify a class action and then as you just suggested, 98 00:05:52,200 --> 00:05:55,040 Speaker 1: there may be special cases coming along, you know, having 99 00:05:55,040 --> 00:05:57,600 Speaker 1: to do with affordable care, or having to do with 100 00:05:57,600 --> 00:06:01,440 Speaker 1: with you know, immigration, or ideological charged issues where yeah, 101 00:06:01,520 --> 00:06:05,120 Speaker 1: let's let's concede that that there will be some influence here, 102 00:06:05,120 --> 00:06:09,240 Speaker 1: and so that that helps to explain why the Republicans 103 00:06:09,240 --> 00:06:11,600 Speaker 1: would have an interest. The point though, is that you're 104 00:06:11,600 --> 00:06:15,360 Speaker 1: balancing that you balance the interest in the occasional ideological 105 00:06:15,400 --> 00:06:18,039 Speaker 1: issue against the need to you know, to have the 106 00:06:18,040 --> 00:06:21,000 Speaker 1: system work. Uh. That that if you've got a capable, 107 00:06:21,080 --> 00:06:24,760 Speaker 1: qualified judge, Uh, you know, there is some concern about saying, well, 108 00:06:24,760 --> 00:06:27,080 Speaker 1: we're going to play politics to the extent of grinding 109 00:06:27,080 --> 00:06:29,480 Speaker 1: the system to a halt in order to accommodate our 110 00:06:29,640 --> 00:06:33,320 Speaker 1: our ideological preferences. And that's I think where we're at here, 111 00:06:33,400 --> 00:06:36,720 Speaker 1: where where I'm concerned, even though I do understand that, yeah, 112 00:06:36,760 --> 00:06:38,880 Speaker 1: I mean, there is a difference in the way they vote. 113 00:06:39,400 --> 00:06:42,240 Speaker 1: About a minute here, Carl, You're right that the election 114 00:06:42,320 --> 00:06:46,359 Speaker 1: results likely will prompt more judges to retire or assume 115 00:06:46,480 --> 00:06:51,279 Speaker 1: senior status. Why is that? Why should the election trigger that? Well, 116 00:06:52,000 --> 00:06:56,760 Speaker 1: there's a tradition, uh, especially the Supreme Court that um 117 00:06:56,960 --> 00:07:00,919 Speaker 1: justices resigned in the administration of a president of the 118 00:07:01,000 --> 00:07:03,919 Speaker 1: same party as they were appointed. That's much less true 119 00:07:03,920 --> 00:07:07,159 Speaker 1: at the appellate and district level. But there may be 120 00:07:07,480 --> 00:07:11,320 Speaker 1: some Republican appointees who are we're waiting to see if 121 00:07:11,320 --> 00:07:14,840 Speaker 1: a Republican might win, and now that that's happened, Uh, 122 00:07:14,880 --> 00:07:18,520 Speaker 1: they may go ahead and assume senior status or retire. 123 00:07:19,000 --> 00:07:20,440 Speaker 1: But I want to follow up on a point that 124 00:07:20,560 --> 00:07:25,640 Speaker 1: Charlie made, and that is, Uh, the coequal branch of 125 00:07:25,760 --> 00:07:29,880 Speaker 1: government is not being given the judicial resources that it 126 00:07:30,000 --> 00:07:35,840 Speaker 1: needs by the Senate, and that's a real problem. Carl 127 00:07:36,080 --> 00:07:39,800 Speaker 1: you urge in your up ed that the Senate during 128 00:07:39,840 --> 00:07:44,120 Speaker 1: the lame duck session at least appoint the twenty that 129 00:07:44,240 --> 00:07:47,800 Speaker 1: were given an upward down a unanimous vote in the 130 00:07:47,880 --> 00:07:54,080 Speaker 1: Judiciary Committee. How likely is that to happen with this Senate. Well, 131 00:07:54,240 --> 00:07:58,040 Speaker 1: it's maybe unlikely. I'm cautiously optimistic that some of those 132 00:07:58,040 --> 00:08:01,360 Speaker 1: twenty will be confirmed. And the reason for that is 133 00:08:01,400 --> 00:08:08,520 Speaker 1: a majority of those twenty were recommended by Republican Home 134 00:08:08,600 --> 00:08:12,600 Speaker 1: state senators to the President who nominated them, and they 135 00:08:12,800 --> 00:08:16,200 Speaker 1: the Republican senators then strongly supported them in hearings and 136 00:08:16,920 --> 00:08:20,920 Speaker 1: at the committee vote. And so that's the reason why 137 00:08:20,960 --> 00:08:22,760 Speaker 1: I think it will go forward. If they none of 138 00:08:22,760 --> 00:08:26,080 Speaker 1: them is confirmed, have to start all over and it's 139 00:08:26,080 --> 00:08:29,840 Speaker 1: a huge waste of resources. Well let's talk about that, Charles. 140 00:08:30,600 --> 00:08:33,240 Speaker 1: Let's say, you know, some small number of them go through, 141 00:08:33,559 --> 00:08:37,440 Speaker 1: but you still have upwards of seventy five vacancies on 142 00:08:37,440 --> 00:08:40,400 Speaker 1: the federal bench when the President elect Trump gets sworn 143 00:08:40,400 --> 00:08:42,959 Speaker 1: in on January. How long is it going to take 144 00:08:42,960 --> 00:08:45,640 Speaker 1: the Trump administration to ramp up and make nominations to 145 00:08:45,880 --> 00:08:49,400 Speaker 1: decrease the vacancy rate on the on the district court bench. 146 00:08:50,080 --> 00:08:51,800 Speaker 1: It will take a while. I mean, you've got to 147 00:08:51,840 --> 00:08:53,719 Speaker 1: get the staffing up and running it. They're going to 148 00:08:53,800 --> 00:08:56,840 Speaker 1: take a while to get the relevant staff to review 149 00:08:56,960 --> 00:09:01,160 Speaker 1: the files and make recommendations, and then you've got once 150 00:09:01,200 --> 00:09:03,680 Speaker 1: you've got them up and going, uh, they're going to 151 00:09:03,760 --> 00:09:06,480 Speaker 1: have to be communicating with their home state senators getting 152 00:09:06,480 --> 00:09:08,439 Speaker 1: new names, and then they'll have to vet them at 153 00:09:08,440 --> 00:09:10,880 Speaker 1: that level. At that point, the a DA will have 154 00:09:10,920 --> 00:09:12,640 Speaker 1: to vet them, the Senate will have to vet them. 155 00:09:12,679 --> 00:09:15,240 Speaker 1: So you know, we are looking at a period of 156 00:09:15,240 --> 00:09:17,920 Speaker 1: of months at a minimum. I think that it's with 157 00:09:17,920 --> 00:09:22,960 Speaker 1: with the unified Senate and White House we're looking at 158 00:09:23,720 --> 00:09:27,400 Speaker 1: less delay, I would guess than we would ordinarily see 159 00:09:27,440 --> 00:09:30,600 Speaker 1: and without the filibuster in in in place as a 160 00:09:30,600 --> 00:09:33,679 Speaker 1: as a threat for the Democrats with lower court appointments, 161 00:09:33,720 --> 00:09:36,720 Speaker 1: I'm guessing it will be a fairly efficient process. But 162 00:09:36,800 --> 00:09:40,000 Speaker 1: even a fairly efficient process will take some time. It'll 163 00:09:40,040 --> 00:09:42,640 Speaker 1: take it will take, uh will be well into the 164 00:09:42,640 --> 00:09:45,520 Speaker 1: new year before they'll start being able to nominate. A 165 00:09:45,640 --> 00:09:49,880 Speaker 1: point people I would expect, carl With the appointment process 166 00:09:49,920 --> 00:09:54,000 Speaker 1: being drawn out longer and longer, are a lot of 167 00:09:54,160 --> 00:09:59,959 Speaker 1: talented mainstream nominees deciding not to go into a judge 168 00:10:00,040 --> 00:10:04,200 Speaker 1: ship because frankly, they can make more in private law 169 00:10:04,280 --> 00:10:07,480 Speaker 1: firms and they don't have to put themselves through this. Yes, 170 00:10:07,559 --> 00:10:09,040 Speaker 1: but let me say one thing to follow on what 171 00:10:09,280 --> 00:10:12,439 Speaker 1: Charlie just said, and that is all of the processes 172 00:10:12,480 --> 00:10:16,320 Speaker 1: are going to be delayed until a Supreme Court justice 173 00:10:16,679 --> 00:10:19,480 Speaker 1: is nominated and confirmed, so that will push back even 174 00:10:19,559 --> 00:10:24,480 Speaker 1: further the lower court nominations and confirmations as late as late. 175 00:10:26,960 --> 00:10:31,920 Speaker 1: But yes, June, you're exactly right. Um. It is the 176 00:10:31,960 --> 00:10:37,680 Speaker 1: fact that many people, especially private practice may not even 177 00:10:37,720 --> 00:10:41,960 Speaker 1: want to be considered for a judge ship because it 178 00:10:42,040 --> 00:10:45,600 Speaker 1: takes so long, and then there in limbo, their clients 179 00:10:45,640 --> 00:10:48,760 Speaker 1: wonder what's going on, the people whom they practice with 180 00:10:49,640 --> 00:10:54,079 Speaker 1: want to know what's happening, and and so you discourage 181 00:10:54,760 --> 00:10:58,040 Speaker 1: many people who would be fine judges from even considering 182 00:10:58,080 --> 00:11:01,080 Speaker 1: that option. I want to thank you both for being 183 00:11:01,120 --> 00:11:04,720 Speaker 1: on Bloomberg Law today. That's Professor Carl Tobias of the 184 00:11:04,840 --> 00:11:08,360 Speaker 1: University of Richmond Law School and Professor Charles Gardner j 185 00:11:08,600 --> 00:11:11,400 Speaker 1: of Indiana University Morris School of Law.