Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: President Trump's pushed to reshape the federal judiciary with conservatives
Speaker 1: is likely to slow this year, as most of the
Speaker 1: remaining vacant seats are for district courts in blue states
Speaker 1: like California. In the short term, however, there's no slowing
Speaker 1: down the Republican led Senate. Right after the lawmakers acquitted
Speaker 1: Trump on two articles of impeachment, Majority leader Mitch McConnell
Speaker 1: went back to his quest of transforming the federal courts,
Speaker 1: teeing up judicial nominees for votes, and the Senate confirmed
Speaker 1: Andrew Brasher to the Eleventh Circuit Court of Appeals last
Speaker 1: week along a party line vote of fifty two to
Speaker 1: forty three and over the opposition of Democrats and civil
Speaker 1: rights groups, including the n double a CP. Brasher was
Speaker 1: the fifty first Trump nominee confirmed to a circuit court.
Speaker 1: Joining me is an expert on the federal judiciary. Carl Tobias,
Speaker 1: a professor at the University of Richmond School of Law.
Speaker 1: The Eleventh Circuit was ready flips, so to speak. So
Speaker 1: how important is it to have one more conservative judge? Well,
Speaker 1: it is important in the sense that President Trump has
Speaker 1: been able to confirm half of the active judges on
Speaker 1: that court. He's had six confirmations, and that's incredible if
Speaker 1: you think about that in terms of how many appointments
Speaker 1: any particular president is able to make on the court.
Speaker 1: So he really has remade the court. We'll see in Plus,
Speaker 1: you're replacing people in the sixties and seventies with people
Speaker 1: who are in their thirties and forties, and so it
Speaker 1: makes an enormous difference. For example, Brasher, I think is
Speaker 1: thirty eight. Do they stay on the court until they
Speaker 1: retire and when they're nominated this young yes, I think so.
Speaker 1: Most federal judges assume senior status and then you know,
Speaker 1: take a half load and many of them never resigned.
Speaker 1: Some retire, but a very small percentage. And so you
Speaker 1: have judges in their eighties on the number of the
Speaker 1: courts around the country, and some of them are our
Speaker 1: most experienced judges. So it's a long window. And why not,
Speaker 1: I mean, you're taking a half load usually when you
Speaker 1: take senior status. Let's talk about Brasher, because he was
Speaker 1: opposed by Democrats, civil rights groups including the n double
Speaker 1: A c P. Why was he opposed. Well, I think
Speaker 1: it principally went back to much of his work as
Speaker 1: solicitor General in Alabama, basically defending a number of initiatives
Speaker 1: of the state legislature, and many of them, at least
Speaker 1: the civil rights groups said, suppressed voter turnout and suppressed
Speaker 1: voter write those kinds of questions. He litigated on behalf
Speaker 1: of Alabama, essentially defending them, and they were very concerned
Speaker 1: about that. But they seem to find a pretty long
Speaker 1: history for someone who hadn't been a lawyer that long.
Speaker 1: And of course the Republicans defended that by saying, this
Speaker 1: was his client and that's the state, and your complaints
Speaker 1: should be with the legislature, not with the person who
Speaker 1: defends them. And the Eleventh Circuit is especially important for
Speaker 1: election law. It covers Alabama, Florida, and Georgia. So how
Speaker 1: often do election law issues come up there? I think
Speaker 1: rather frequently, as you suggest, and large percentages of African
Speaker 1: Americans who historically have had difficulty voting as recently as
Speaker 1: this year, I think in Georgia and Alabama, so some
Speaker 1: of the most important voting rights cases have come out
Speaker 1: of there. Shelby County was one which rolled back the
Speaker 1: Voting Rights Act, but there are many, many others and
Speaker 1: that litigation is ongoing. Did he receive a qualified rating
Speaker 1: from the A B A. I think he had well
Speaker 1: qualified because you know, he had served for seven months,
Speaker 1: and that's another criticism as a district judge. Are there
Speaker 1: any other circuit court nominees? There is only one appellate
Speaker 1: vacancy in the country right now. Uh next in Mississippi.
Speaker 1: It's an emergency vacancy for which Oserden, a district judge,
Speaker 1: was nominated. But he's been opposed by two Republicans on
Speaker 1: the committee and his name has not been sent back
Speaker 1: to the Senate. So it seems that either he has
Speaker 1: decided to withdraw or the White House has decided to
Speaker 1: withdraw his name. So the Republicans will have to find
Speaker 1: somebody very quickly if they intend to fill that seat.
Speaker 1: And don't forget Mitch McConnell has said that his thinking
Speaker 1: is no vacancy left behind, so anyone nominated he's promising
Speaker 1: will be confirmed. But they don't have someone right now,
Speaker 1: though there are rumors about who might fill that seat,
Speaker 1: and he was opposed by the Republicans as being not
Speaker 1: conservative enough. Yes, the two senators were Holly from Missouri
Speaker 1: and Senator Cruz from Texas, and in his hearing they
Speaker 1: grilled him on some of his cases where they felt
Speaker 1: that he was not sufficiently rigorous in helping opponents of abortion.
Speaker 1: I think it was a healthcare case, but he pointed
Speaker 1: out in the hearing that he was just following the
Speaker 1: circuit precedent. He was bound by that president. According to
Speaker 1: the judge. The two senators have maintained that they don't
Speaker 1: think he's conservative enough, and so they intend to vote
Speaker 1: against him, and Senator Graham, the chair does not want
Speaker 1: to go forward with a vote he can't win, and
Speaker 1: so that's where we are. I've been talking with Professor
Speaker 1: Carl Tobias of the University of Richmond Law School about
Speaker 1: President Trump's pushed to reshape the federal judiciary. Let's turn
Speaker 1: to the district courts. So the majority of the about
Speaker 1: seventy current and future vacancy these are in blue states.
Speaker 1: Explain why it's a blue state red state thing for
Speaker 1: judicial nominees. Well, it's especially true at the district level
Speaker 1: because Senator Graham's chair is still honoring the blue slips
Speaker 1: and so uh if home state senators a Democrat and
Speaker 1: disagrees with the White House on a particular nomination, then
Speaker 1: that nomination does not go forward, there's no hearing in
Speaker 1: the process is over. And so those are more difficult
Speaker 1: for this White House and most White Houses to fill
Speaker 1: when the opposition party has to agree. And so basically,
Speaker 1: the Republicans have found it much easier when there are
Speaker 1: two home state senators who are Republicans to go ahead
Speaker 1: and fill those seats. And so that's a big part
Speaker 1: of it. And of course, the two major jurisdictions that
Speaker 1: we see our California which has six emergency district vacancies
Speaker 1: and no one has been confirmed, though they now have
Speaker 1: nominees for all the seats, but it's doubtful they'll all
Speaker 1: be confirmed this year. And then New York has had
Speaker 1: as many as sixteen or seventeen a number have been
Speaker 1: filled there now, so it's not as um bad as
Speaker 1: it was. Um. But you might remember that Senator Schumer
Speaker 1: is from New York, and of course Senator Feinstein and uh,
Speaker 1: Senator Harris from California, and the President loves to rail
Speaker 1: against the Ninth Circuit and the California District judges, so
Speaker 1: um that may in part explain why they've been so slow. UM.
Speaker 1: So we'll see what happens in those major states, but
Speaker 1: there are many other blue states that have many vacancies.
Speaker 1: New Jersey is the worst case scenarios, six emergencies, and
Speaker 1: there's not yet been a Trump nominee, and so it
Speaker 1: doesn't look like anything that's going to happened there, even
Speaker 1: though they have only seventeen judges, so they're pretty much underwater.
Speaker 1: If you talk to the New Jersey judges in that district.
Speaker 1: Let's talk about how this really happens. Because Delaware has
Speaker 1: had two district court nominees approved. Why is there success
Speaker 1: in Delaware and not in New Jersey, which is in
Speaker 1: an emergency situation. Well, because I think the home state
Speaker 1: senators Coons and Carper from Delaware UM undertook extraordinary efforts
Speaker 1: to work with the White House and find people who
Speaker 1: were acceptable to the White House. One was called Connolly,
Speaker 1: who had been the U S attorney for Bush. I
Speaker 1: believe in the nominee but didn't make it at the
Speaker 1: end of Bush and they thought he was uh find
Speaker 1: US attorney, would be an excellent federal judge, and so
Speaker 1: they offered him and the other person who is named Nerika,
Speaker 1: who was well qualified um UM practitioner in Wilmington's and
Speaker 1: so they were able to agree. Very similar thing has
Speaker 1: happened in Illinois. Senator Durban has worked very closely with
Speaker 1: the White House and they still have vacancies, but they
Speaker 1: have nominees for the few vacancies that are left. So
Speaker 1: where home state senators reach out and work closely with
Speaker 1: the White House, then uh, their vacancies tend to be filled. Um.
Speaker 1: And so there's some examples of that, UM. And I
Speaker 1: think the New Jersey situation is just unfortunate. UM. I
Speaker 1: think the senators have tried, but nothing has happened. So
Speaker 1: then it's not only a problem with the Trump administration
Speaker 1: but also the senators from that state. It can be uh,
Speaker 1: but sometimes, for example, in California, I think that the
Speaker 1: White House did not reach out to the senators and
Speaker 1: it's a big state and they have lots of vacancies,
Speaker 1: and the commissions they have take time, UM, but they
Speaker 1: just haven't been able to move to get the nominations.
Speaker 1: Once to get the nominations, they haven't moved through the
Speaker 1: Senate and so uh that just creates these huge backlogs UM.
Speaker 1: And the chief judges of the Eastern end, um Central
Speaker 1: districts of California have written to the White House and
Speaker 1: to the Senate Judiciary Committee pleading to to have those
Speaker 1: vacancies filled. Now, is it true that no California District
Speaker 1: Court nominee has made it through the confirmation under President Trump? Yes,
Speaker 1: it's astonishing. It is. When you have sixteen emergency vacancies
Speaker 1: out of sixty seats, that's a real problem. And they
Speaker 1: had many of the judges carried double the case loads
Speaker 1: of judges and other districts, so you can get a
Speaker 1: sense of what how how bad it is in California.
Speaker 1: I don't often hear Washington State mentioned in with judicial nominations,
Speaker 1: but three of the Washington states western district spots have
Speaker 1: been vacant for about four years, and the average age
Speaker 1: of the district judges there is seventy six years old.
Speaker 1: What's going on in Washington State four years? We can't
Speaker 1: blame Trump for that, can we? Yes? We can, Um,
Speaker 1: we can blame the Republicans for it. Before President Obama
Speaker 1: head nominated three people for vacancies there, and well qualified
Speaker 1: mainstream nominees, but they were held up by McConnell in
Speaker 1: and UM, Now there are five vacancies and all five
Speaker 1: are emergencies as you suggest, Um, but uh, no signs
Speaker 1: of nominees moving forward. And I've heard from people in
Speaker 1: Washington State that nothing is going to happen until after
Speaker 1: the election, and so they have very much a crisis
Speaker 1: situation in that state as well. Red state nominees take
Speaker 1: about two hundred seventeen days to get from nomination to confirmation,
Speaker 1: but blue state nominees take about four hundred and twelve days.
Speaker 1: And that's a departure from Obama, where it took a
Speaker 1: hundred nine days for Obama's blue state nominee to be
Speaker 1: confirmed in two for red state nominees. So why is why,
Speaker 1: what's the how do you account for that difference between
Speaker 1: Trump and Obama? And the timing again, I mean, I
Speaker 1: think that the Judiciary Committee just has um not moved
Speaker 1: because first of all, the on the nominees, the White
Speaker 1: House to lead nominating from blue states, and they went
Speaker 1: to the whenever they were nominated, they went to the
Speaker 1: back of the line, and so they haven't made that
Speaker 1: a priority. And so for example, you have sixteen nomine
Speaker 1: East for those emergency vacancies in California, and no one's
Speaker 1: being confirmed. UM, and you can see the discrepancy. I
Speaker 1: think in Bush's time to it would look like Obama Um,
Speaker 1: there was no discrepancy or difference between UM, Blue states
Speaker 1: and Red states. UM. But Um. This approach by the
Speaker 1: White House and the Judiciary Committee has allowed them to
Speaker 1: fill all but one appellate vacancy UM, and most of
Speaker 1: the red state vacancies. But the Blue states are disadvantaged
Speaker 1: and have been throughout the administration now, Carl. They rushed
Speaker 1: to fill the appellate court vacancies because the appellate courts.
Speaker 1: It's more important what your views are, isn't it than
Speaker 1: district courts. I mean, so these district court judges who
Speaker 1: do the everyday work, the trials, motion practice and stuff,
Speaker 1: they should be easier to confirm, shouldn't they. Well, they
Speaker 1: are easier to confirm, but more of them, Okay, And
Speaker 1: so um it um. You're exactly right. Though, an appellate
Speaker 1: judge UM typically issues an opinion which covers all of
Speaker 1: the states in that UM circuits U states, and so
Speaker 1: all judges in say, New York, UM, Connecticut, and Vermont
Speaker 1: are bound by rulings of the second circuit um. But
Speaker 1: a district judge can't even bind people in his or
Speaker 1: her own courthouse with rulings and so as you can see,
Speaker 1: and the Supreme Court takes so many, so few cases
Speaker 1: that the Supreme Court for New York really is is
Speaker 1: the second circuit. And so those positions are critically important,
Speaker 1: and they just make more policy, cover more states um
Speaker 1: and so um, and their fewer to them. And so
Speaker 1: the administration has focused like a laser on the appellate courts,
Speaker 1: and they have been very successful. In fact, there haven't
Speaker 1: been that few vacancies since How many circuits has Trump
Speaker 1: flipped And do you see a difference already? Well, I
Speaker 1: think we are beginning to see it, um, But I
Speaker 1: believe it's the second, third, and eleven that have flipped.
Speaker 1: But of course you have to remember in some of
Speaker 1: the other states that have not flipped, he has substantially
Speaker 1: reinforced very conservative kind of perspectives of those circuits. And
Speaker 1: I'm thinking for example, the fifth, the sixth, eight um,
Speaker 1: the seventh to some extent um, and also perhaps the
Speaker 1: ten so um, you know, having a substantial impact. I
Speaker 1: think it's still a little early to see very many
Speaker 1: cases because some of the judges have been appointed quite recently. Uh,
Speaker 1: and they don't have you know, a full record, um,
Speaker 1: and sit in three judge panels, but there have been
Speaker 1: opinions that have been important in Sometimes the difference on
Speaker 1: the three judge panel is one of the Trump appointees. Uh.
Speaker 1: And that will just be magnified over time. Thanks for
Speaker 1: being on Bloomberg Lack Carl. That's Carl Tobias, professor at
Speaker 1: the University of Richmond School of Law. And that's it
Speaker 1: for this edition of Bloomberg Law. I'm June Grasso. Thanks
Speaker 1: so much for listening, and remember to tune to the
Speaker 1: Bloomberg Law Show weeknights at ten pm right here on
Speaker 1: Bloomberg Radio. Yeah.