WEBVTT - The Rush to Confirm Conservative Judges

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcast. The Senate has

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<v Speaker 1>confirmed the youngest person nominated by President Trump to be

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<v Speaker 1>a federal Appeals Court judge, the thirty seven year old

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<v Speaker 1>Alison Jones Rushing once worked for the Alliance Defending Freedom,

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<v Speaker 1>a conservative Christian organization that is designated as an anti

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<v Speaker 1>lgbt Q hate group by the Southern Poverty Law Center.

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<v Speaker 1>Joining me is Carl Tobias, professor at the University of

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<v Speaker 1>Richmond Law School. Carl She's only practiced law for nine

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<v Speaker 1>years and has been co counsel on only four cases

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<v Speaker 1>that went to verdict or judgment. Is she qualified to

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<v Speaker 1>sit on a circuit court that is just below the

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<v Speaker 1>Supreme Court? Well, that's a good question. There have been

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<v Speaker 1>some other people who similarly situated who have served on

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<v Speaker 1>the appeals courts. She points to her clerking for Justice

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<v Speaker 1>Thomas Justice Corsage on the Tenth Circuit and Judge Sentel

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<v Speaker 1>on the d c Circuit and says that, uh supplements

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<v Speaker 1>her experience. And I think she's filed some fifty briefs

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<v Speaker 1>and appellate courts. Uh, so she has some experience. The

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<v Speaker 1>A b A likes to see twelve years of practice

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<v Speaker 1>experience when it makes its ratings. So what drew her

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<v Speaker 1>to the attention of the Trump administration to make her,

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<v Speaker 1>you know, eligible for one of these key spots. Well,

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<v Speaker 1>I think the Federalist Society and Leonard Leo, the executive

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<v Speaker 1>Vice president, who's the pre eminent advisor to the president

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<v Speaker 1>on these nominations. And so I think that's what put

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<v Speaker 1>her on the radar, and I think that's what um

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<v Speaker 1>allowed her to be confirmed so quickly. She was opposed

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<v Speaker 1>by a coalition of more than two hundred civil rights organizations.

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<v Speaker 1>They called her an ideological extremist who opposed same sex

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<v Speaker 1>marriage and remedies for discriminatory lending practices, among other things.

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<v Speaker 1>Was that addressed in her hearings, Not really, because her

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<v Speaker 1>hearings were held I think after the Senate had recessed

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<v Speaker 1>to go campaign in October. Uh, And so she wasn't

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<v Speaker 1>really wasn't questioned very rigorously, and most of the questions

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<v Speaker 1>actually came from Republicans like Senator Kennedy from Louisiana, and

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<v Speaker 1>he was concerned about her lack of life experience and

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<v Speaker 1>lack of practice experience, and he raised those concerns, but

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<v Speaker 1>he voted for her list at all the Republicans, right,

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<v Speaker 1>so all fifty three Republicans voted for her, while the

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<v Speaker 1>rest of the Senate voted against her. Why are these

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<v Speaker 1>nominations being rushed through when there are only eleven circuit

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<v Speaker 1>court positions out of one six seven that are vacant.

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<v Speaker 1>Why they need to rush Well, the President has campaigned

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<v Speaker 1>on and made good on his campaign promise to uh

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<v Speaker 1>fill the vacancies at the appellate level. They're one level

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<v Speaker 1>blows Supreme court. They're really the supreme courts in the

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<v Speaker 1>regions around the country because the Supreme Court here so

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<v Speaker 1>a few minutes, so few cases, uh, And so they

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<v Speaker 1>have accentuated that to the exclusion of everything else, really

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<v Speaker 1>including legislation. And we do have a hundred twenty nine

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<v Speaker 1>federal district court vacancies is just nearly but that just

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<v Speaker 1>reflects the incredible emphasis on the appeals courts because more

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<v Speaker 1>policies made there. The hot button issues are finally resolved

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<v Speaker 1>there around the country, and so that's being emphasized by

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<v Speaker 1>the White House and the Senate. The Senate confirmation of

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<v Speaker 1>Trump's thirty appeals court judges is more than any other

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<v Speaker 1>president two years into a term, and Mitch McConnell wants

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<v Speaker 1>to continue this rapid pace exactly. And this week we'll

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<v Speaker 1>have three more. There are two more that are going

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<v Speaker 1>to be uh, probably confirmed today and tomorrow for the

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<v Speaker 1>sixth Circuit. That will bring his total to thirty four.

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<v Speaker 1>And they're more in the wings, so um, they are

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<v Speaker 1>moving in. It's conceivable this year there could be no

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<v Speaker 1>vacancies on the appeals courts. When was the last time

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<v Speaker 1>that's happened. I think you have to go back decades actually,

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<v Speaker 1>uh to have that few, which is great for the

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<v Speaker 1>courts in terms of resolving appeals. The questions are, you

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<v Speaker 1>know these people will have life tenure and serve years

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<v Speaker 1>and decades after the president has long left the White House.

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<v Speaker 1>Democrats are taking a particularly hardstance on one of the

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<v Speaker 1>nominee's Chad Readler, based on his recent advocating against the

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<v Speaker 1>Affordable Care Act, and Eric Murphy has argued against marriage equality.

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<v Speaker 1>Is President Trump nominating moderate conservatives or are they more

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<v Speaker 1>radical conservatives? Are they ideologues? Well, I think Democrats, at

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<v Speaker 1>least most of them believe that a number are, and

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<v Speaker 1>there's a fair amount of data to show that in

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<v Speaker 1>terms of their positions on a number of issues at

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<v Speaker 1>least that they've argued as lawyers Republican responses. Of course,

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<v Speaker 1>they're just representing their clients, um. But I think it's

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<v Speaker 1>fair to say that they're very conservative, probably more conservative

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<v Speaker 1>than President Bush's nominees for the appellate bench um. And

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<v Speaker 1>so I think that's what concerns a number of people.

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<v Speaker 1>So would you say that they're less like Chief Justice

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<v Speaker 1>John Roberts, who is more of a moderate, and more

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<v Speaker 1>like Justice Neil Gorsch, Well, I would say they're closer

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<v Speaker 1>to Justice Thomas and a number of the appellate judges

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<v Speaker 1>were his clerks, and probably closer to Justice scalia Um

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<v Speaker 1>in terms of their views. But again they're not completely

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<v Speaker 1>uniform there conservative number of issues, especially the culture war

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<v Speaker 1>issues like abortion, freedom of religion, um, those kinds of questions.

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<v Speaker 1>In any of these cases, have any of the Republicans

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<v Speaker 1>broken ranks and voted against the nominations because they seem

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<v Speaker 1>to be sailing through. They are pretty much. A number

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<v Speaker 1>of them are party line votes. Uh. There were a

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<v Speaker 1>few moderate nominees, such as the person for Hawaii, and

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<v Speaker 1>a number of Republicans voted against him, but that's about

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<v Speaker 1>the only one I can think of. In Senator Kennedy

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<v Speaker 1>was the sole person to asked a single no vote

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<v Speaker 1>on any of President Trump's judicial nominees. So that gives

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<v Speaker 1>you a sense of how few no votes there have

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<v Speaker 1>been on the Republican side. Are we at the point

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<v Speaker 1>yet where there are enough Trump appointees on the federal

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<v Speaker 1>appellate courts to make a difference to tip the balance.

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<v Speaker 1>Well probably not in some yes, if you count Republican

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<v Speaker 1>and Democratic appointee presidents. But what's critical, I think is

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<v Speaker 1>most of them are replacing Republican appointed uh judges, and

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<v Speaker 1>so it's not as much of a difference. So of

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<v Speaker 1>course you're having someone who's in her thirties or forties

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<v Speaker 1>as opposed to someone who's in sixties or seventies, and

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<v Speaker 1>so it's beginning to make a difference and will in

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<v Speaker 1>the long run. All Right, Thanks so much, Carl, As always,

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<v Speaker 1>that's Carl Tobias is a professor at the University of

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<v Speaker 1>Richmond Law School. Thanks for listening to the Bloomberg Law Podcast.

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<v Speaker 1>You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on bloomberg dot com slash podcast. I'm June Grosso.

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<v Speaker 1>This is Bloomberg