WEBVTT - Senate Leaves 94 Judges Waiting for Confirmations (Audio) 0:00:00.000 --> 0:00:02.960 Bloomberg Law is brought to you by Commonwealth Financial Network. 0:00:03.200 --> 0:00:05.880 When it's time to change the conversation, talk with a 0:00:05.920 --> 0:00:08.799 broker dealer r I A that's ready to listen, Call 0:00:08.920 --> 0:00:12.280 eight six six four six to three six three eight 0:00:12.680 --> 0:00:16.160 or visit Commonwealth dot com to learn more. June Thanks 0:00:16.239 --> 0:00:20.319 Michael Senate Republicans refusal to even hold hearings for a 0:00:20.400 --> 0:00:23.639 justice to replace the late Antonin Scalia has been the 0:00:23.680 --> 0:00:28.120 subject of much debate, concern, and criticism, particularly in light 0:00:28.160 --> 0:00:32.040 of the favorable comments made about President Barack Obama's nominee, 0:00:32.120 --> 0:00:35.839 Judge Merrick Garland. That's overshadowed the fact that there are 0:00:35.880 --> 0:00:39.640 now ninety four openings for federal judges. No judge has 0:00:39.640 --> 0:00:43.920 been confirmed since July six, although the Judiciary Committee has 0:00:43.960 --> 0:00:48.040 approved twenty moderate district court nominees on a voice vote 0:00:48.159 --> 0:00:51.920 without dissent. Professor Carl Tobias of the University of Richmond 0:00:51.960 --> 0:00:54.400 Law School wrote an op ed in The Los Angeles 0:00:54.480 --> 0:00:58.280 Times arguing the necessity to give these nominees a final 0:00:58.360 --> 0:01:02.400 confirmation vote during the lame Duct session. Professor Tobias joins 0:01:02.480 --> 0:01:05.680 US now, along with Professor Charles Gardner j of Indiana 0:01:05.800 --> 0:01:09.760 University More School of Law, Carl, I can't remember the 0:01:09.840 --> 0:01:13.520 last time there was not a high number of federal 0:01:13.680 --> 0:01:18.920 judicial vacancies. Are these vacancies affecting the administration of justice 0:01:18.959 --> 0:01:22.880 at this point? Just? They are. It just means more 0:01:22.920 --> 0:01:26.880 pressure is placed on the other judges uh to carry 0:01:26.959 --> 0:01:32.320 the substantial caseloads, and it means justice delayed as justice denied, 0:01:32.480 --> 0:01:36.120 so that litigants can't have their day in court, especially 0:01:36.120 --> 0:01:42.160 in civil cases. Charles, what is there any statement at 0:01:42.160 --> 0:01:44.720 all from the Senate or the Republicans as to why 0:01:44.760 --> 0:01:49.240 they're not moving forward with these vacancies. Well, I mean 0:01:49.280 --> 0:01:54.520 there's a tradition here, uh for you know, for many years, uh, 0:01:54.880 --> 0:01:58.240 confirmation slowed down in the latter portion of an administration 0:01:58.320 --> 0:02:00.920 and and towards the very end. I think the the 0:02:01.000 --> 0:02:04.480 idea is, we can we can stall these guys out, 0:02:04.640 --> 0:02:09.480 and we can name uh the replacements with people whose 0:02:09.520 --> 0:02:12.400 ideological inclinations are closer to our own. In other words, 0:02:12.400 --> 0:02:15.919 we'll just wait for a Republican president to jump in 0:02:16.000 --> 0:02:18.519 and and and take their place. It's it's it's it's 0:02:18.520 --> 0:02:21.080 pretty clear that that's what's going on. If you're asking 0:02:21.120 --> 0:02:23.839 for any sort of explanation. It's you know, you can 0:02:24.320 --> 0:02:28.120 it tends to it heads you down the road of 0:02:28.120 --> 0:02:30.440 of you know, claims of judicial activism and so forth 0:02:30.440 --> 0:02:32.560 on the part of of Obama nominees. But but the 0:02:32.840 --> 0:02:36.079 bottom line is that they're looking for to replace these 0:02:36.160 --> 0:02:41.359 judges with people who are Republican appointees. Carl hasn't Obama 0:02:41.400 --> 0:02:46.440 had a difficult time getting his federal judicial appointments through 0:02:46.880 --> 0:02:50.320 even since the very beginning. Yes, and I think it's 0:02:50.320 --> 0:02:56.880 substantially due to Republicans fair to cooperate work closely with 0:02:57.000 --> 0:03:01.359 the administration, but it's been especially urgent and especially clear 0:03:01.880 --> 0:03:04.400 the last two years when the Republicans had the majority, 0:03:04.520 --> 0:03:10.320 and they've managed to confirm so few judges. So that 0:03:10.639 --> 0:03:13.400 puts us where we are today, Charles, are all the 0:03:13.520 --> 0:03:17.320 pending nominations the kind of judges that I mean, you know, 0:03:17.360 --> 0:03:20.120 to the extent we can tell the kind of judges 0:03:20.200 --> 0:03:22.520 that the Republicans would have a problem with, or is 0:03:22.520 --> 0:03:26.000 it a mixed bag of nominees? Oh, you know, I 0:03:26.080 --> 0:03:28.480 have no reason to believe that they would have intrinsic 0:03:28.560 --> 0:03:32.400 problem with these folks. With Historically there there you know, 0:03:32.520 --> 0:03:35.120 there's been a lot of issues with Supreme Court appointments 0:03:35.120 --> 0:03:38.200 and Circuit court appointments less a little bit less. Uh, 0:03:38.600 --> 0:03:43.200 District judges have have really fallen below the radar until 0:03:43.360 --> 0:03:47.640 until recently. Everything is becoming political in this polarized environment, 0:03:47.720 --> 0:03:49.800 and so you know, I think they want to name 0:03:50.160 --> 0:03:53.440 Republican appointees. But that is not to say that if 0:03:53.440 --> 0:03:55.440 they went ahead, rolled up their sleeves and looked at 0:03:55.480 --> 0:03:58.280 these folks, that they would be able to have identifiable 0:03:58.320 --> 0:04:00.960 problems with them. I don't think that's what's driving them 0:04:01.000 --> 0:04:05.800 forward at this point, Carl. These are the these are 0:04:05.800 --> 0:04:08.800 the district court judges who are basically the trial judges 0:04:08.840 --> 0:04:11.400 in the federal system. So on the there on the 0:04:11.440 --> 0:04:17.640 front lines, does does there? Does their political bent mean 0:04:17.720 --> 0:04:20.440 as much as the political bent of let's say, in 0:04:20.520 --> 0:04:24.479 a Peltic court judge. No, you're right there the workhorses 0:04:24.520 --> 0:04:28.800 of the federal judiciary. They conducted trials, but principally they 0:04:28.839 --> 0:04:33.080 manage the caseload and try to resolve cases at the 0:04:33.120 --> 0:04:37.680 initial stage, and they tend to be much less ideological. 0:04:37.760 --> 0:04:43.800 They're primarily appointed because of their competence rather than inability 0:04:43.839 --> 0:04:48.839 to manage the cases, rather than their theological views. Just 0:04:48.920 --> 0:04:53.599 to take a counter point done that Charles the you know, 0:04:53.640 --> 0:04:56.159 there was that district court judge in Texas who stopped 0:04:56.200 --> 0:04:59.040 the uh some of the immigration worked that the Obama 0:04:59.040 --> 0:05:02.039 administration was doing. And and and there have been other examples 0:05:02.040 --> 0:05:04.680 of this around the country with district court judges, at 0:05:04.760 --> 0:05:06.800 least in the first instance, doing it all the you know, 0:05:06.839 --> 0:05:10.200 doing things that were more inclined to what the Republicans 0:05:10.240 --> 0:05:13.160 wanted than what the Democrats wanted. And of course it 0:05:13.200 --> 0:05:15.600 does get reviewed by the appellate courts. But isn't there 0:05:15.600 --> 0:05:18.280 an argument that from you know, from the Republican side, 0:05:18.279 --> 0:05:20.200 that look, these folks have a lot of power at 0:05:20.200 --> 0:05:23.120 the district court level, They hear more cases. They actually 0:05:23.160 --> 0:05:26.799 have a lot of power over how things get decided 0:05:26.800 --> 0:05:29.400 in the first instance, and we need to make sure 0:05:29.400 --> 0:05:32.599 our people are in there. Sure, I mean, in defense 0:05:32.640 --> 0:05:36.520 of Carl's point, the data show that that the ideological 0:05:36.560 --> 0:05:39.719 influences are greatest at the Supreme Court, lesser in the 0:05:39.800 --> 0:05:42.839 circuit courts, and lesser still at the trial court. That said, 0:05:42.960 --> 0:05:46.400 you know, there's no question that conservative and liberal appointees 0:05:46.440 --> 0:05:49.200 think differently about how to sentence a criminal defendant, whether 0:05:49.279 --> 0:05:52.159 to certify a class action and then as you just suggested, 0:05:52.200 --> 0:05:55.040 there may be special cases coming along, you know, having 0:05:55.040 --> 0:05:57.600 to do with affordable care, or having to do with 0:05:57.600 --> 0:06:01.440 with you know, immigration, or ideological charged issues where yeah, 0:06:01.520 --> 0:06:05.120 let's let's concede that that there will be some influence here, 0:06:05.120 --> 0:06:09.240 and so that that helps to explain why the Republicans 0:06:09.240 --> 0:06:11.600 would have an interest. The point though, is that you're 0:06:11.600 --> 0:06:15.360 balancing that you balance the interest in the occasional ideological 0:06:15.400 --> 0:06:18.039 issue against the need to you know, to have the 0:06:18.040 --> 0:06:21.000 system work. Uh. That that if you've got a capable, 0:06:21.080 --> 0:06:24.760 qualified judge, Uh, you know, there is some concern about saying, well, 0:06:24.760 --> 0:06:27.080 we're going to play politics to the extent of grinding 0:06:27.080 --> 0:06:29.480 the system to a halt in order to accommodate our 0:06:29.640 --> 0:06:33.320 our ideological preferences. And that's I think where we're at here, 0:06:33.400 --> 0:06:36.720 where where I'm concerned, even though I do understand that, yeah, 0:06:36.760 --> 0:06:38.880 I mean, there is a difference in the way they vote. 0:06:39.400 --> 0:06:42.240 About a minute here, Carl, You're right that the election 0:06:42.320 --> 0:06:46.359 results likely will prompt more judges to retire or assume 0:06:46.480 --> 0:06:51.279 senior status. Why is that? Why should the election trigger that? Well, 0:06:52.000 --> 0:06:56.760 there's a tradition, uh, especially the Supreme Court that um 0:06:56.960 --> 0:07:00.919 justices resigned in the administration of a president of the 0:07:01.000 --> 0:07:03.919 same party as they were appointed. That's much less true 0:07:03.920 --> 0:07:07.159 at the appellate and district level. But there may be 0:07:07.480 --> 0:07:11.320 some Republican appointees who are we're waiting to see if 0:07:11.320 --> 0:07:14.840 a Republican might win, and now that that's happened, Uh, 0:07:14.880 --> 0:07:18.520 they may go ahead and assume senior status or retire. 0:07:19.000 --> 0:07:20.440 But I want to follow up on a point that 0:07:20.560 --> 0:07:25.640 Charlie made, and that is, Uh, the coequal branch of 0:07:25.760 --> 0:07:29.880 government is not being given the judicial resources that it 0:07:30.000 --> 0:07:35.840 needs by the Senate, and that's a real problem. Carl 0:07:36.080 --> 0:07:39.800 you urge in your up ed that the Senate during 0:07:39.840 --> 0:07:44.120 the lame duck session at least appoint the twenty that 0:07:44.240 --> 0:07:47.800 were given an upward down a unanimous vote in the 0:07:47.880 --> 0:07:54.080 Judiciary Committee. How likely is that to happen with this Senate. Well, 0:07:54.240 --> 0:07:58.040 it's maybe unlikely. I'm cautiously optimistic that some of those 0:07:58.040 --> 0:08:01.360 twenty will be confirmed. And the reason for that is 0:08:01.400 --> 0:08:08.520 a majority of those twenty were recommended by Republican Home 0:08:08.600 --> 0:08:12.600 state senators to the President who nominated them, and they 0:08:12.800 --> 0:08:16.200 the Republican senators then strongly supported them in hearings and 0:08:16.920 --> 0:08:20.920 at the committee vote. And so that's the reason why 0:08:20.960 --> 0:08:22.760 I think it will go forward. If they none of 0:08:22.760 --> 0:08:26.080 them is confirmed, have to start all over and it's 0:08:26.080 --> 0:08:29.840 a huge waste of resources. Well let's talk about that, Charles. 0:08:30.600 --> 0:08:33.240 Let's say, you know, some small number of them go through, 0:08:33.559 --> 0:08:37.440 but you still have upwards of seventy five vacancies on 0:08:37.440 --> 0:08:40.400 the federal bench when the President elect Trump gets sworn 0:08:40.400 --> 0:08:42.959 in on January. How long is it going to take 0:08:42.960 --> 0:08:45.640 the Trump administration to ramp up and make nominations to 0:08:45.880 --> 0:08:49.400 decrease the vacancy rate on the on the district court bench. 0:08:50.080 --> 0:08:51.800 It will take a while. I mean, you've got to 0:08:51.840 --> 0:08:53.719 get the staffing up and running it. They're going to 0:08:53.800 --> 0:08:56.840 take a while to get the relevant staff to review 0:08:56.960 --> 0:09:01.160 the files and make recommendations, and then you've got once 0:09:01.200 --> 0:09:03.680 you've got them up and going, uh, they're going to 0:09:03.760 --> 0:09:06.480 have to be communicating with their home state senators getting 0:09:06.480 --> 0:09:08.439 new names, and then they'll have to vet them at 0:09:08.440 --> 0:09:10.880 that level. At that point, the a DA will have 0:09:10.920 --> 0:09:12.640 to vet them, the Senate will have to vet them. 0:09:12.679 --> 0:09:15.240 So you know, we are looking at a period of 0:09:15.240 --> 0:09:17.920 of months at a minimum. I think that it's with 0:09:17.920 --> 0:09:22.960 with the unified Senate and White House we're looking at 0:09:23.720 --> 0:09:27.400 less delay, I would guess than we would ordinarily see 0:09:27.440 --> 0:09:30.600 and without the filibuster in in in place as a 0:09:30.600 --> 0:09:33.679 as a threat for the Democrats with lower court appointments, 0:09:33.720 --> 0:09:36.720 I'm guessing it will be a fairly efficient process. But 0:09:36.800 --> 0:09:40.000 even a fairly efficient process will take some time. It'll 0:09:40.040 --> 0:09:42.640 take it will take, uh will be well into the 0:09:42.640 --> 0:09:45.520 new year before they'll start being able to nominate. A 0:09:45.640 --> 0:09:49.880 point people I would expect, carl With the appointment process 0:09:49.920 --> 0:09:54.000 being drawn out longer and longer, are a lot of 0:09:54.160 --> 0:09:59.959 talented mainstream nominees deciding not to go into a judge 0:10:00.040 --> 0:10:04.200 ship because frankly, they can make more in private law 0:10:04.280 --> 0:10:07.480 firms and they don't have to put themselves through this. Yes, 0:10:07.559 --> 0:10:09.040 but let me say one thing to follow on what 0:10:09.280 --> 0:10:12.439 Charlie just said, and that is all of the processes 0:10:12.480 --> 0:10:16.320 are going to be delayed until a Supreme Court justice 0:10:16.679 --> 0:10:19.480 is nominated and confirmed, so that will push back even 0:10:19.559 --> 0:10:24.480 further the lower court nominations and confirmations as late as late. 0:10:26.960 --> 0:10:31.920 But yes, June, you're exactly right. Um. It is the 0:10:31.960 --> 0:10:37.680 fact that many people, especially private practice may not even 0:10:37.720 --> 0:10:41.960 want to be considered for a judge ship because it 0:10:42.040 --> 0:10:45.600 takes so long, and then there in limbo, their clients 0:10:45.640 --> 0:10:48.760 wonder what's going on, the people whom they practice with 0:10:49.640 --> 0:10:54.079 want to know what's happening, and and so you discourage 0:10:54.760 --> 0:10:58.040 many people who would be fine judges from even considering 0:10:58.080 --> 0:11:01.080 that option. I want to thank you both for being 0:11:01.120 --> 0:11:04.720 on Bloomberg Law today. That's Professor Carl Tobias of the 0:11:04.840 --> 0:11:08.360 University of Richmond Law School and Professor Charles Gardner j 0:11:08.600 --> 0:11:11.400 of Indiana University Morris School of Law.