Speaker 1: Bloomberg Law is brought to you by Commonwealth Financial Network.
Speaker 1: When it's time to change the conversation, talk with a
Speaker 1: broker dealer r I A that's ready to listen, Call
Speaker 1: eight six six four six to three six three eight
Speaker 1: or visit Commonwealth dot com to learn more. June Thanks
Speaker 1: Michael Senate Republicans refusal to even hold hearings for a
Speaker 1: justice to replace the late Antonin Scalia has been the
Speaker 1: subject of much debate, concern, and criticism, particularly in light
Speaker 1: of the favorable comments made about President Barack Obama's nominee,
Speaker 1: Judge Merrick Garland. That's overshadowed the fact that there are
Speaker 1: now ninety four openings for federal judges. No judge has
Speaker 1: been confirmed since July six, although the Judiciary Committee has
Speaker 1: approved twenty moderate district court nominees on a voice vote
Speaker 1: without dissent. Professor Carl Tobias of the University of Richmond
Speaker 1: Law School wrote an op ed in The Los Angeles
Speaker 1: Times arguing the necessity to give these nominees a final
Speaker 1: confirmation vote during the lame Duct session. Professor Tobias joins
Speaker 1: US now, along with Professor Charles Gardner j of Indiana
Speaker 1: University More School of Law, Carl, I can't remember the
Speaker 1: last time there was not a high number of federal
Speaker 1: judicial vacancies. Are these vacancies affecting the administration of justice
Speaker 1: at this point? Just? They are. It just means more
Speaker 1: pressure is placed on the other judges uh to carry
Speaker 1: the substantial caseloads, and it means justice delayed as justice denied,
Speaker 1: so that litigants can't have their day in court, especially
Speaker 1: in civil cases. Charles, what is there any statement at
Speaker 1: all from the Senate or the Republicans as to why
Speaker 1: they're not moving forward with these vacancies. Well, I mean
Speaker 1: there's a tradition here, uh for you know, for many years, uh,
Speaker 1: confirmation slowed down in the latter portion of an administration
Speaker 1: and and towards the very end. I think the the
Speaker 1: idea is, we can we can stall these guys out,
Speaker 1: and we can name uh the replacements with people whose
Speaker 1: ideological inclinations are closer to our own. In other words,
Speaker 1: we'll just wait for a Republican president to jump in
Speaker 1: and and and take their place. It's it's it's it's
Speaker 1: pretty clear that that's what's going on. If you're asking
Speaker 1: for any sort of explanation. It's you know, you can
Speaker 1: it tends to it heads you down the road of
Speaker 1: of you know, claims of judicial activism and so forth
Speaker 1: on the part of of Obama nominees. But but the
Speaker 1: bottom line is that they're looking for to replace these
Speaker 1: judges with people who are Republican appointees. Carl hasn't Obama
Speaker 1: had a difficult time getting his federal judicial appointments through
Speaker 1: even since the very beginning. Yes, and I think it's
Speaker 1: substantially due to Republicans fair to cooperate work closely with
Speaker 1: the administration, but it's been especially urgent and especially clear
Speaker 1: the last two years when the Republicans had the majority,
Speaker 1: and they've managed to confirm so few judges. So that
Speaker 1: puts us where we are today, Charles, are all the
Speaker 1: pending nominations the kind of judges that I mean, you know,
Speaker 1: to the extent we can tell the kind of judges
Speaker 1: that the Republicans would have a problem with, or is
Speaker 1: it a mixed bag of nominees? Oh, you know, I
Speaker 1: have no reason to believe that they would have intrinsic
Speaker 1: problem with these folks. With Historically there there you know,
Speaker 1: there's been a lot of issues with Supreme Court appointments
Speaker 1: and Circuit court appointments less a little bit less. Uh,
Speaker 1: District judges have have really fallen below the radar until
Speaker 1: until recently. Everything is becoming political in this polarized environment,
Speaker 1: and so you know, I think they want to name
Speaker 1: Republican appointees. But that is not to say that if
Speaker 1: they went ahead, rolled up their sleeves and looked at
Speaker 1: these folks, that they would be able to have identifiable
Speaker 1: problems with them. I don't think that's what's driving them
Speaker 1: forward at this point, Carl. These are the these are
Speaker 1: the district court judges who are basically the trial judges
Speaker 1: in the federal system. So on the there on the
Speaker 1: front lines, does does there? Does their political bent mean
Speaker 1: as much as the political bent of let's say, in
Speaker 1: a Peltic court judge. No, you're right there the workhorses
Speaker 1: of the federal judiciary. They conducted trials, but principally they
Speaker 1: manage the caseload and try to resolve cases at the
Speaker 1: initial stage, and they tend to be much less ideological.
Speaker 1: They're primarily appointed because of their competence rather than inability
Speaker 1: to manage the cases, rather than their theological views. Just
Speaker 1: to take a counter point done that Charles the you know,
Speaker 1: there was that district court judge in Texas who stopped
Speaker 1: the uh some of the immigration worked that the Obama
Speaker 1: administration was doing. And and and there have been other examples
Speaker 1: of this around the country with district court judges, at
Speaker 1: least in the first instance, doing it all the you know,
Speaker 1: doing things that were more inclined to what the Republicans
Speaker 1: wanted than what the Democrats wanted. And of course it
Speaker 1: does get reviewed by the appellate courts. But isn't there
Speaker 1: an argument that from you know, from the Republican side,
Speaker 1: that look, these folks have a lot of power at
Speaker 1: the district court level, They hear more cases. They actually
Speaker 1: have a lot of power over how things get decided
Speaker 1: in the first instance, and we need to make sure
Speaker 1: our people are in there. Sure, I mean, in defense
Speaker 1: of Carl's point, the data show that that the ideological
Speaker 1: influences are greatest at the Supreme Court, lesser in the
Speaker 1: circuit courts, and lesser still at the trial court. That said,
Speaker 1: you know, there's no question that conservative and liberal appointees
Speaker 1: think differently about how to sentence a criminal defendant, whether
Speaker 1: to certify a class action and then as you just suggested,
Speaker 1: there may be special cases coming along, you know, having
Speaker 1: to do with affordable care, or having to do with
Speaker 1: with you know, immigration, or ideological charged issues where yeah,
Speaker 1: let's let's concede that that there will be some influence here,
Speaker 1: and so that that helps to explain why the Republicans
Speaker 1: would have an interest. The point though, is that you're
Speaker 1: balancing that you balance the interest in the occasional ideological
Speaker 1: issue against the need to you know, to have the
Speaker 1: system work. Uh. That that if you've got a capable,
Speaker 1: qualified judge, Uh, you know, there is some concern about saying, well,
Speaker 1: we're going to play politics to the extent of grinding
Speaker 1: the system to a halt in order to accommodate our
Speaker 1: our ideological preferences. And that's I think where we're at here,
Speaker 1: where where I'm concerned, even though I do understand that, yeah,
Speaker 1: I mean, there is a difference in the way they vote.
Speaker 1: About a minute here, Carl, You're right that the election
Speaker 1: results likely will prompt more judges to retire or assume
Speaker 1: senior status. Why is that? Why should the election trigger that? Well,
Speaker 1: there's a tradition, uh, especially the Supreme Court that um
Speaker 1: justices resigned in the administration of a president of the
Speaker 1: same party as they were appointed. That's much less true
Speaker 1: at the appellate and district level. But there may be
Speaker 1: some Republican appointees who are we're waiting to see if
Speaker 1: a Republican might win, and now that that's happened, Uh,
Speaker 1: they may go ahead and assume senior status or retire.
Speaker 1: But I want to follow up on a point that
Speaker 1: Charlie made, and that is, Uh, the coequal branch of
Speaker 1: government is not being given the judicial resources that it
Speaker 1: needs by the Senate, and that's a real problem. Carl
Speaker 1: you urge in your up ed that the Senate during
Speaker 1: the lame duck session at least appoint the twenty that
Speaker 1: were given an upward down a unanimous vote in the
Speaker 1: Judiciary Committee. How likely is that to happen with this Senate. Well,
Speaker 1: it's maybe unlikely. I'm cautiously optimistic that some of those
Speaker 1: twenty will be confirmed. And the reason for that is
Speaker 1: a majority of those twenty were recommended by Republican Home
Speaker 1: state senators to the President who nominated them, and they
Speaker 1: the Republican senators then strongly supported them in hearings and
Speaker 1: at the committee vote. And so that's the reason why
Speaker 1: I think it will go forward. If they none of
Speaker 1: them is confirmed, have to start all over and it's
Speaker 1: a huge waste of resources. Well let's talk about that, Charles.
Speaker 1: Let's say, you know, some small number of them go through,
Speaker 1: but you still have upwards of seventy five vacancies on
Speaker 1: the federal bench when the President elect Trump gets sworn
Speaker 1: in on January. How long is it going to take
Speaker 1: the Trump administration to ramp up and make nominations to
Speaker 1: decrease the vacancy rate on the on the district court bench.
Speaker 1: It will take a while. I mean, you've got to
Speaker 1: get the staffing up and running it. They're going to
Speaker 1: take a while to get the relevant staff to review
Speaker 1: the files and make recommendations, and then you've got once
Speaker 1: you've got them up and going, uh, they're going to
Speaker 1: have to be communicating with their home state senators getting
Speaker 1: new names, and then they'll have to vet them at
Speaker 1: that level. At that point, the a DA will have
Speaker 1: to vet them, the Senate will have to vet them.
Speaker 1: So you know, we are looking at a period of
Speaker 1: of months at a minimum. I think that it's with
Speaker 1: with the unified Senate and White House we're looking at
Speaker 1: less delay, I would guess than we would ordinarily see
Speaker 1: and without the filibuster in in in place as a
Speaker 1: as a threat for the Democrats with lower court appointments,
Speaker 1: I'm guessing it will be a fairly efficient process. But
Speaker 1: even a fairly efficient process will take some time. It'll
Speaker 1: take it will take, uh will be well into the
Speaker 1: new year before they'll start being able to nominate. A
Speaker 1: point people I would expect, carl With the appointment process
Speaker 1: being drawn out longer and longer, are a lot of
Speaker 1: talented mainstream nominees deciding not to go into a judge
Speaker 1: ship because frankly, they can make more in private law
Speaker 1: firms and they don't have to put themselves through this. Yes,
Speaker 1: but let me say one thing to follow on what
Speaker 1: Charlie just said, and that is all of the processes
Speaker 1: are going to be delayed until a Supreme Court justice
Speaker 1: is nominated and confirmed, so that will push back even
Speaker 1: further the lower court nominations and confirmations as late as late.
Speaker 1: But yes, June, you're exactly right. Um. It is the
Speaker 1: fact that many people, especially private practice may not even
Speaker 1: want to be considered for a judge ship because it
Speaker 1: takes so long, and then there in limbo, their clients
Speaker 1: wonder what's going on, the people whom they practice with
Speaker 1: want to know what's happening, and and so you discourage
Speaker 1: many people who would be fine judges from even considering
Speaker 1: that option. I want to thank you both for being
Speaker 1: on Bloomberg Law today. That's Professor Carl Tobias of the
Speaker 1: University of Richmond Law School and Professor Charles Gardner j
Speaker 1: of Indiana University Morris School of Law.