WEBVTT - Trump Boosts Conservative Lean of Key Circuit 0:00:00.560 --> 0:00:05.360 This is Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:05.760 --> 0:00:10.000 President Trump's pushed to reshape the federal judiciary with conservatives 0:00:10.119 --> 0:00:12.600 is likely to slow this year, as most of the 0:00:12.640 --> 0:00:15.760 remaining vacant seats are for district courts in blue states 0:00:15.800 --> 0:00:19.479 like California. In the short term, however, there's no slowing 0:00:19.520 --> 0:00:23.160 down the Republican led Senate. Right after the lawmakers acquitted 0:00:23.160 --> 0:00:27.080 Trump on two articles of impeachment, Majority leader Mitch McConnell 0:00:27.120 --> 0:00:30.480 went back to his quest of transforming the federal courts, 0:00:30.880 --> 0:00:34.720 teeing up judicial nominees for votes, and the Senate confirmed 0:00:34.800 --> 0:00:37.960 Andrew Brasher to the Eleventh Circuit Court of Appeals last 0:00:37.960 --> 0:00:40.800 week along a party line vote of fifty two to 0:00:40.920 --> 0:00:44.560 forty three and over the opposition of Democrats and civil 0:00:44.680 --> 0:00:48.320 rights groups, including the n double a CP. Brasher was 0:00:48.360 --> 0:00:51.760 the fifty first Trump nominee confirmed to a circuit court. 0:00:52.159 --> 0:00:55.400 Joining me is an expert on the federal judiciary. Carl Tobias, 0:00:55.440 --> 0:00:58.160 a professor at the University of Richmond School of Law. 0:00:58.880 --> 0:01:02.040 The Eleventh Circuit was ready flips, so to speak. So 0:01:02.080 --> 0:01:07.280 how important is it to have one more conservative judge? Well, 0:01:07.480 --> 0:01:11.800 it is important in the sense that President Trump has 0:01:11.840 --> 0:01:16.200 been able to confirm half of the active judges on 0:01:16.319 --> 0:01:21.400 that court. He's had six confirmations, and that's incredible if 0:01:21.400 --> 0:01:24.440 you think about that in terms of how many appointments 0:01:24.440 --> 0:01:27.119 any particular president is able to make on the court. 0:01:27.200 --> 0:01:31.120 So he really has remade the court. We'll see in Plus, 0:01:31.120 --> 0:01:34.360 you're replacing people in the sixties and seventies with people 0:01:34.400 --> 0:01:37.119 who are in their thirties and forties, and so it 0:01:37.160 --> 0:01:40.120 makes an enormous difference. For example, Brasher, I think is 0:01:40.120 --> 0:01:43.119 thirty eight. Do they stay on the court until they 0:01:43.160 --> 0:01:47.319 retire and when they're nominated this young yes, I think so. 0:01:48.000 --> 0:01:51.560 Most federal judges assume senior status and then you know, 0:01:51.600 --> 0:01:55.760 take a half load and many of them never resigned. 0:01:56.160 --> 0:01:59.760 Some retire, but a very small percentage. And so you 0:01:59.760 --> 0:02:02.120 have judges in their eighties on the number of the 0:02:02.160 --> 0:02:05.240 courts around the country, and some of them are our 0:02:05.280 --> 0:02:10.920 most experienced judges. So it's a long window. And why not, 0:02:11.160 --> 0:02:13.359 I mean, you're taking a half load usually when you 0:02:13.480 --> 0:02:17.760 take senior status. Let's talk about Brasher, because he was 0:02:17.880 --> 0:02:22.280 opposed by Democrats, civil rights groups including the n double 0:02:22.320 --> 0:02:25.720 A c P. Why was he opposed. Well, I think 0:02:25.720 --> 0:02:28.960 it principally went back to much of his work as 0:02:29.000 --> 0:02:35.000 solicitor General in Alabama, basically defending a number of initiatives 0:02:35.040 --> 0:02:39.360 of the state legislature, and many of them, at least 0:02:39.639 --> 0:02:43.160 the civil rights groups said, suppressed voter turnout and suppressed 0:02:43.240 --> 0:02:48.520 voter write those kinds of questions. He litigated on behalf 0:02:48.520 --> 0:02:51.560 of Alabama, essentially defending them, and they were very concerned 0:02:51.560 --> 0:02:53.959 about that. But they seem to find a pretty long 0:02:54.040 --> 0:02:56.440 history for someone who hadn't been a lawyer that long. 0:02:56.760 --> 0:02:59.480 And of course the Republicans defended that by saying, this 0:02:59.560 --> 0:03:03.320 was his client and that's the state, and your complaints 0:03:03.320 --> 0:03:06.960 should be with the legislature, not with the person who 0:03:06.960 --> 0:03:12.280 defends them. And the Eleventh Circuit is especially important for 0:03:12.400 --> 0:03:17.400 election law. It covers Alabama, Florida, and Georgia. So how 0:03:17.440 --> 0:03:20.440 often do election law issues come up there? I think 0:03:20.680 --> 0:03:24.960 rather frequently, as you suggest, and large percentages of African 0:03:24.960 --> 0:03:31.160 Americans who historically have had difficulty voting as recently as 0:03:31.480 --> 0:03:35.000 this year, I think in Georgia and Alabama, so some 0:03:35.040 --> 0:03:37.280 of the most important voting rights cases have come out 0:03:37.280 --> 0:03:41.720 of there. Shelby County was one which rolled back the 0:03:41.800 --> 0:03:44.520 Voting Rights Act, but there are many, many others and 0:03:44.560 --> 0:03:48.480 that litigation is ongoing. Did he receive a qualified rating 0:03:48.720 --> 0:03:51.280 from the A B A. I think he had well 0:03:51.360 --> 0:03:56.320 qualified because you know, he had served for seven months, 0:03:56.360 --> 0:04:00.560 and that's another criticism as a district judge. Are there 0:04:00.600 --> 0:04:07.040 any other circuit court nominees? There is only one appellate 0:04:07.120 --> 0:04:10.880 vacancy in the country right now. Uh next in Mississippi. 0:04:10.880 --> 0:04:15.640 It's an emergency vacancy for which Oserden, a district judge, 0:04:15.680 --> 0:04:19.719 was nominated. But he's been opposed by two Republicans on 0:04:19.760 --> 0:04:24.480 the committee and his name has not been sent back 0:04:24.760 --> 0:04:28.720 to the Senate. So it seems that either he has 0:04:28.760 --> 0:04:31.120 decided to withdraw or the White House has decided to 0:04:31.160 --> 0:04:34.960 withdraw his name. So the Republicans will have to find 0:04:34.960 --> 0:04:37.880 somebody very quickly if they intend to fill that seat. 0:04:38.279 --> 0:04:42.719 And don't forget Mitch McConnell has said that his thinking 0:04:42.960 --> 0:04:48.039 is no vacancy left behind, so anyone nominated he's promising 0:04:48.240 --> 0:04:51.480 will be confirmed. But they don't have someone right now, 0:04:52.000 --> 0:04:54.960 though there are rumors about who might fill that seat, 0:04:55.360 --> 0:04:58.880 and he was opposed by the Republicans as being not 0:04:59.160 --> 0:05:05.039 conservative enough. Yes, the two senators were Holly from Missouri 0:05:05.080 --> 0:05:09.000 and Senator Cruz from Texas, and in his hearing they 0:05:09.040 --> 0:05:13.360 grilled him on some of his cases where they felt 0:05:13.600 --> 0:05:20.120 that he was not sufficiently rigorous in helping opponents of abortion. 0:05:20.320 --> 0:05:23.080 I think it was a healthcare case, but he pointed 0:05:23.120 --> 0:05:25.920 out in the hearing that he was just following the 0:05:26.040 --> 0:05:29.320 circuit precedent. He was bound by that president. According to 0:05:29.400 --> 0:05:33.800 the judge. The two senators have maintained that they don't 0:05:33.839 --> 0:05:36.360 think he's conservative enough, and so they intend to vote 0:05:36.360 --> 0:05:39.400 against him, and Senator Graham, the chair does not want 0:05:39.680 --> 0:05:42.200 to go forward with a vote he can't win, and 0:05:42.279 --> 0:05:44.880 so that's where we are. I've been talking with Professor 0:05:44.920 --> 0:05:48.400 Carl Tobias of the University of Richmond Law School about 0:05:48.440 --> 0:05:52.520 President Trump's pushed to reshape the federal judiciary. Let's turn 0:05:52.600 --> 0:05:56.880 to the district courts. So the majority of the about 0:05:57.160 --> 0:06:01.640 seventy current and future vacancy these are in blue states. 0:06:01.640 --> 0:06:05.800 Explain why it's a blue state red state thing for 0:06:06.000 --> 0:06:10.000 judicial nominees. Well, it's especially true at the district level 0:06:10.680 --> 0:06:15.760 because Senator Graham's chair is still honoring the blue slips 0:06:15.839 --> 0:06:21.240 and so uh if home state senators a Democrat and 0:06:21.360 --> 0:06:25.480 disagrees with the White House on a particular nomination, then 0:06:25.720 --> 0:06:28.400 that nomination does not go forward, there's no hearing in 0:06:28.400 --> 0:06:32.080 the process is over. And so those are more difficult 0:06:32.120 --> 0:06:34.559 for this White House and most White Houses to fill 0:06:35.040 --> 0:06:43.080 when the opposition party has to agree. And so basically, 0:06:43.480 --> 0:06:46.880 the Republicans have found it much easier when there are 0:06:46.880 --> 0:06:49.760 two home state senators who are Republicans to go ahead 0:06:49.800 --> 0:06:53.400 and fill those seats. And so that's a big part 0:06:53.440 --> 0:06:57.599 of it. And of course, the two major jurisdictions that 0:06:57.680 --> 0:07:02.040 we see our California which has six emergency district vacancies 0:07:02.480 --> 0:07:05.440 and no one has been confirmed, though they now have 0:07:05.680 --> 0:07:08.960 nominees for all the seats, but it's doubtful they'll all 0:07:09.080 --> 0:07:12.560 be confirmed this year. And then New York has had 0:07:12.720 --> 0:07:15.760 as many as sixteen or seventeen a number have been 0:07:15.760 --> 0:07:20.520 filled there now, so it's not as um bad as 0:07:20.520 --> 0:07:25.800 it was. Um. But you might remember that Senator Schumer 0:07:26.120 --> 0:07:29.600 is from New York, and of course Senator Feinstein and uh, 0:07:29.720 --> 0:07:33.880 Senator Harris from California, and the President loves to rail 0:07:33.920 --> 0:07:38.320 against the Ninth Circuit and the California District judges, so 0:07:39.280 --> 0:07:43.720 um that may in part explain why they've been so slow. UM. 0:07:43.840 --> 0:07:46.960 So we'll see what happens in those major states, but 0:07:47.400 --> 0:07:50.880 there are many other blue states that have many vacancies. 0:07:50.960 --> 0:07:54.200 New Jersey is the worst case scenarios, six emergencies, and 0:07:54.360 --> 0:07:58.160 there's not yet been a Trump nominee, and so it 0:07:58.280 --> 0:08:01.080 doesn't look like anything that's going to happened there, even 0:08:01.120 --> 0:08:05.440 though they have only seventeen judges, so they're pretty much underwater. 0:08:05.560 --> 0:08:08.960 If you talk to the New Jersey judges in that district. 0:08:09.600 --> 0:08:13.760 Let's talk about how this really happens. Because Delaware has 0:08:13.800 --> 0:08:18.360 had two district court nominees approved. Why is there success 0:08:18.400 --> 0:08:21.240 in Delaware and not in New Jersey, which is in 0:08:21.240 --> 0:08:26.600 an emergency situation. Well, because I think the home state 0:08:26.680 --> 0:08:33.280 senators Coons and Carper from Delaware UM undertook extraordinary efforts 0:08:33.320 --> 0:08:37.040 to work with the White House and find people who 0:08:37.040 --> 0:08:40.600 were acceptable to the White House. One was called Connolly, 0:08:40.640 --> 0:08:42.440 who had been the U S attorney for Bush. I 0:08:42.480 --> 0:08:44.800 believe in the nominee but didn't make it at the 0:08:44.880 --> 0:08:50.320 end of Bush and they thought he was uh find 0:08:50.400 --> 0:08:53.000 US attorney, would be an excellent federal judge, and so 0:08:53.080 --> 0:08:56.680 they offered him and the other person who is named Nerika, 0:08:56.720 --> 0:09:03.320 who was well qualified um UM practitioner in Wilmington's and 0:09:03.440 --> 0:09:06.600 so they were able to agree. Very similar thing has 0:09:06.640 --> 0:09:09.720 happened in Illinois. Senator Durban has worked very closely with 0:09:09.760 --> 0:09:12.760 the White House and they still have vacancies, but they 0:09:12.800 --> 0:09:16.720 have nominees for the few vacancies that are left. So 0:09:16.880 --> 0:09:19.600 where home state senators reach out and work closely with 0:09:19.640 --> 0:09:26.360 the White House, then uh, their vacancies tend to be filled. Um. 0:09:26.440 --> 0:09:30.960 And so there's some examples of that, UM. And I 0:09:31.000 --> 0:09:36.560 think the New Jersey situation is just unfortunate. UM. I 0:09:36.600 --> 0:09:40.360 think the senators have tried, but nothing has happened. So 0:09:40.400 --> 0:09:42.959 then it's not only a problem with the Trump administration 0:09:43.000 --> 0:09:47.760 but also the senators from that state. It can be uh, 0:09:48.080 --> 0:09:52.080 but sometimes, for example, in California, I think that the 0:09:52.120 --> 0:09:56.880 White House did not reach out to the senators and 0:09:56.960 --> 0:09:59.199 it's a big state and they have lots of vacancies, 0:09:59.320 --> 0:10:05.520 and the commissions they have take time, UM, but they 0:10:05.640 --> 0:10:09.199 just haven't been able to move to get the nominations. 0:10:09.200 --> 0:10:12.200 Once to get the nominations, they haven't moved through the 0:10:12.240 --> 0:10:19.000 Senate and so uh that just creates these huge backlogs UM. 0:10:19.040 --> 0:10:22.880 And the chief judges of the Eastern end, um Central 0:10:22.880 --> 0:10:26.160 districts of California have written to the White House and 0:10:26.280 --> 0:10:31.760 to the Senate Judiciary Committee pleading to to have those 0:10:31.840 --> 0:10:36.680 vacancies filled. Now, is it true that no California District 0:10:36.760 --> 0:10:41.439 Court nominee has made it through the confirmation under President Trump? Yes, 0:10:42.400 --> 0:10:46.679 it's astonishing. It is. When you have sixteen emergency vacancies 0:10:46.720 --> 0:10:50.319 out of sixty seats, that's a real problem. And they 0:10:50.400 --> 0:10:54.160 had many of the judges carried double the case loads 0:10:54.200 --> 0:10:57.600 of judges and other districts, so you can get a 0:10:57.640 --> 0:11:02.080 sense of what how how bad it is in California. 0:11:02.600 --> 0:11:07.920 I don't often hear Washington State mentioned in with judicial nominations, 0:11:07.960 --> 0:11:12.480 but three of the Washington states western district spots have 0:11:12.559 --> 0:11:16.440 been vacant for about four years, and the average age 0:11:16.679 --> 0:11:19.640 of the district judges there is seventy six years old. 0:11:20.440 --> 0:11:23.280 What's going on in Washington State four years? We can't 0:11:23.280 --> 0:11:27.000 blame Trump for that, can we? Yes? We can, Um, 0:11:27.080 --> 0:11:31.200 we can blame the Republicans for it. Before President Obama 0:11:31.240 --> 0:11:37.200 head nominated three people for vacancies there, and well qualified 0:11:37.280 --> 0:11:40.599 mainstream nominees, but they were held up by McConnell in 0:11:42.400 --> 0:11:46.240 and UM, Now there are five vacancies and all five 0:11:46.280 --> 0:11:51.840 are emergencies as you suggest, Um, but uh, no signs 0:11:52.160 --> 0:11:55.960 of nominees moving forward. And I've heard from people in 0:11:56.040 --> 0:11:59.240 Washington State that nothing is going to happen until after 0:11:59.280 --> 0:12:03.720 the election, and so they have very much a crisis 0:12:03.760 --> 0:12:07.840 situation in that state as well. Red state nominees take 0:12:07.880 --> 0:12:12.040 about two hundred seventeen days to get from nomination to confirmation, 0:12:12.559 --> 0:12:16.959 but blue state nominees take about four hundred and twelve days. 0:12:17.080 --> 0:12:20.880 And that's a departure from Obama, where it took a 0:12:20.960 --> 0:12:24.720 hundred nine days for Obama's blue state nominee to be 0:12:24.720 --> 0:12:29.800 confirmed in two for red state nominees. So why is why, 0:12:29.960 --> 0:12:32.400 what's the how do you account for that difference between 0:12:32.480 --> 0:12:36.080 Trump and Obama? And the timing again, I mean, I 0:12:36.200 --> 0:12:41.760 think that the Judiciary Committee just has um not moved 0:12:42.640 --> 0:12:46.600 because first of all, the on the nominees, the White 0:12:46.600 --> 0:12:49.679 House to lead nominating from blue states, and they went 0:12:49.720 --> 0:12:51.680 to the whenever they were nominated, they went to the 0:12:51.679 --> 0:12:54.679 back of the line, and so they haven't made that 0:12:54.760 --> 0:13:00.000 a priority. And so for example, you have sixteen nomine 0:13:00.040 --> 0:13:03.520 East for those emergency vacancies in California, and no one's 0:13:03.520 --> 0:13:07.240 being confirmed. UM, and you can see the discrepancy. I 0:13:07.240 --> 0:13:10.920 think in Bush's time to it would look like Obama Um, 0:13:10.960 --> 0:13:15.480 there was no discrepancy or difference between UM, Blue states 0:13:15.520 --> 0:13:20.120 and Red states. UM. But Um. This approach by the 0:13:20.160 --> 0:13:23.880 White House and the Judiciary Committee has allowed them to 0:13:24.240 --> 0:13:29.040 fill all but one appellate vacancy UM, and most of 0:13:29.040 --> 0:13:33.280 the red state vacancies. But the Blue states are disadvantaged 0:13:33.360 --> 0:13:37.520 and have been throughout the administration now, Carl. They rushed 0:13:37.520 --> 0:13:43.280 to fill the appellate court vacancies because the appellate courts. 0:13:43.320 --> 0:13:47.040 It's more important what your views are, isn't it than 0:13:47.160 --> 0:13:50.080 district courts. I mean, so these district court judges who 0:13:50.200 --> 0:13:54.560 do the everyday work, the trials, motion practice and stuff, 0:13:54.600 --> 0:13:58.520 they should be easier to confirm, shouldn't they. Well, they 0:13:58.600 --> 0:14:02.560 are easier to confirm, but more of them, Okay, And 0:14:02.679 --> 0:14:08.520 so um it um. You're exactly right. Though, an appellate 0:14:08.640 --> 0:14:13.520 judge UM typically issues an opinion which covers all of 0:14:13.559 --> 0:14:19.640 the states in that UM circuits U states, and so 0:14:20.080 --> 0:14:26.760 all judges in say, New York, UM, Connecticut, and Vermont 0:14:26.960 --> 0:14:30.560 are bound by rulings of the second circuit um. But 0:14:30.760 --> 0:14:33.960 a district judge can't even bind people in his or 0:14:34.000 --> 0:14:38.760 her own courthouse with rulings and so as you can see, 0:14:39.000 --> 0:14:41.960 and the Supreme Court takes so many, so few cases 0:14:42.600 --> 0:14:48.520 that the Supreme Court for New York really is is 0:14:48.560 --> 0:14:53.360 the second circuit. And so those positions are critically important, 0:14:53.960 --> 0:14:57.880 and they just make more policy, cover more states um 0:14:58.000 --> 0:15:02.040 and so um, and their fewer to them. And so 0:15:02.200 --> 0:15:06.560 the administration has focused like a laser on the appellate courts, 0:15:06.600 --> 0:15:09.840 and they have been very successful. In fact, there haven't 0:15:09.840 --> 0:15:16.360 been that few vacancies since How many circuits has Trump 0:15:16.440 --> 0:15:20.360 flipped And do you see a difference already? Well, I 0:15:20.360 --> 0:15:23.400 think we are beginning to see it, um, But I 0:15:23.440 --> 0:15:29.920 believe it's the second, third, and eleven that have flipped. 0:15:30.320 --> 0:15:33.360 But of course you have to remember in some of 0:15:33.360 --> 0:15:37.240 the other states that have not flipped, he has substantially 0:15:37.280 --> 0:15:43.760 reinforced very conservative kind of perspectives of those circuits. And 0:15:43.760 --> 0:15:49.920 I'm thinking for example, the fifth, the sixth, eight um, 0:15:50.120 --> 0:15:56.680 the seventh to some extent um, and also perhaps the 0:15:56.760 --> 0:16:03.320 ten so um, you know, having a substantial impact. I 0:16:03.360 --> 0:16:05.680 think it's still a little early to see very many 0:16:05.680 --> 0:16:09.720 cases because some of the judges have been appointed quite recently. Uh, 0:16:09.720 --> 0:16:13.440 and they don't have you know, a full record, um, 0:16:13.480 --> 0:16:16.160 and sit in three judge panels, but there have been 0:16:16.200 --> 0:16:20.280 opinions that have been important in Sometimes the difference on 0:16:20.280 --> 0:16:24.040 the three judge panel is one of the Trump appointees. Uh. 0:16:24.040 --> 0:16:27.320 And that will just be magnified over time. Thanks for 0:16:27.320 --> 0:16:30.480 being on Bloomberg Lack Carl. That's Carl Tobias, professor at 0:16:30.520 --> 0:16:33.600 the University of Richmond School of Law. And that's it 0:16:33.680 --> 0:16:37.000 for this edition of Bloomberg Law. I'm June Grasso. Thanks 0:16:37.000 --> 0:16:39.200 so much for listening, and remember to tune to the 0:16:39.240 --> 0:16:42.600 Bloomberg Law Show weeknights at ten pm right here on 0:16:42.600 --> 0:16:48.520 Bloomberg Radio. Yeah.