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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Well, stop Donald Trump's extreme abortion bands, because we trust

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Speaker 2: women to make decisions about their own body and not

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Speaker 2: have their government tell them what to do.

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Speaker 1: Presumptive Democratic presidential nominee Kamala Harris is making abortion rights

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Speaker 1: a top issue in the November election, a familiar role

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Speaker 1: for Harris, who's been the party's leading voice on abortion access,

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Speaker 1: while Republican presidential nominee Donald Trump, who's generally shied away

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Speaker 1: from the issue on the campaign trail, thanked the six

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Speaker 1: conservative Supreme Court justices for overturning Row at a rally

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Speaker 1: in Saint Cloud, Minnesota on Saturday.

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Speaker 3: Getting it back to the states puts the question where

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Speaker 3: it belongs with the vote of the people. And it's overtime,

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Speaker 3: and you'll see this over time, it's going to work

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Speaker 3: out incredibly well.

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Speaker 1: But right now, legal battles over abortion are going on

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Speaker 1: in courts across the country, whether it's the continuing battles

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Speaker 1: over the abortion pill MIFA pristone in federal courts, the

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Speaker 1: battles over enforcing restrictions on abortion in state courts. Now

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Speaker 1: that fourteen states have bans on abortion at all stages

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Speaker 1: of pregnancy with limited exceptions, or battles in several states

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Speaker 1: over abortion rights measures being on the ballot in November.

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Speaker 1: Joining me is Michelle Goodwin, a professor of constitutional law

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Speaker 1: and global health policy at Georgetown Law. So let's start

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Speaker 1: with the battles over the abortion pill. The ninth circuit

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Speaker 1: shot down last week are request by Idaho and six

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Speaker 1: other Republican led states to get involved in this lawsuit

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Speaker 1: between Democratic led jurisdictions and the Biden administration over the

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Speaker 1: abortion pill MIFA pristone. What exactly is this suit of.

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Speaker 2: Well, essentially, what you have is that the State of

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Speaker 2: Washington believes that the FDA has been too restrictive with

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Speaker 2: regard to mefapristone and that some of those restrictions need

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Speaker 2: to be lifted. There is an argument to be made

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Speaker 2: for why the State of Washington has pushed forward this

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Speaker 2: litigation before mithapristone had been approved in the US marketplace,

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Speaker 2: it was already in use in other parts of the world,

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Speaker 2: had been deemed to be safe and effective, and we

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Speaker 2: know through twenty four years of mifapristone being available in

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Speaker 2: the United States that it's been widely used certainly even

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Speaker 2: more so posts the Dobs decision, but that it's safe

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Speaker 2: and effective. All of the research consistently shows that, and

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Speaker 2: so the state of Washington has suggested that essentially, by

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Speaker 2: denying a broader berth for the use of methapristone, it's

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Speaker 2: denying greater access to people who could benefit from using that.

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Speaker 2: The intervention that's been led by states that have abortion

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Speaker 2: bands or conservative legislatures is in effect to tamp down

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Speaker 2: on that they've been denied. Idaho has deny the opportunity

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Speaker 2: to basically intervene, and that intervention would have essentially been

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Speaker 2: part of a broader movement, which is to restrict mifipristone

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Speaker 2: in the US marketplace.

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Speaker 1: So it was again an issue of standing, much as

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Speaker 1: the mifipristone case at the Supreme Court was explain why

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Speaker 1: the judges decided that those Republican states did not have standing.

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Speaker 2: Well, in order to have standing, you must actually be

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Speaker 2: affected by it, and you must have what one would

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Speaker 2: call some skin in the game with regard to this,

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Speaker 2: and be harmed in the potential that you could actually

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Speaker 2: get relief. The kind of relief that's being thought and

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Speaker 2: what you've seen recently in these abortion cases is that

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Speaker 2: the way to dispense with them is on technical procedural

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Speaker 2: grounds rather than the substantive argument. And so in this

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Speaker 2: case Idaho and others, they don't have the standing in

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Speaker 2: order to be able to intervene in this case, it's

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Speaker 2: a procedural way of essentially shutting them out.

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Speaker 1: At the same time, there's a battle over mifipristone in

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Speaker 1: the Northern District of Texas, and this is the case

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Speaker 1: that went up to the Supreme Court that found the

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Speaker 1: Physicians Group didn't have standing to sue. But Judge Matthew Kusmrick,

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Speaker 1: who I will say is a Christian ideologue, He's allowed Idaho, Missouri,

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Speaker 1: and Kansas to take up where the Physicians Group left off.

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Speaker 1: How did he find that those states had standing?

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Speaker 2: So this is a really important question, and the question

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Speaker 2: gets at the heart of what we've seen in this space.

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Speaker 2: Years ago, so Erwin Shimmerinsky's the dean of the University

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Speaker 2: of California Berkeley Law School, and I wrote an article

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Speaker 2: about gerrymandering abortion rights, and that's where I'd like to

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Speaker 2: start with answering this question, which is that if one

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Speaker 2: actually assumes that there is some legitimacy. Here, then one

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Speaker 2: tries to find the answer that is clear and that

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Speaker 2: is logical in order to be able to respond. But unfortunately,

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Speaker 2: what one sees in cases that involve abortion rights has

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Speaker 2: been what some might call selective outcomes, outcome determinatism, or

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Speaker 2: even opportunistic originalism, which I've called some of these decisions.

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Speaker 2: And that is to say that it's actually hard to

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Speaker 2: find the legitimate theory, the legitimate rule of law argument,

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Speaker 2: the legitimate well articulated beyond those judges and argument that

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Speaker 2: lines up. That's been very difficult. And yet what we've

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Speaker 2: found with Judge Chasmeric those two things I think that

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Speaker 2: are worth noting. With Judge Chasmeric, he's a lone sitting

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Speaker 2: judge in Amarillo, Texas. So there has been a kind

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Speaker 2: of form shopping or judge shopping. Some have articulated with

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Speaker 2: regard to Judge Chrismeric and some others where they know

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Speaker 2: that there is a particular outcome that might almost be

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Speaker 2: guaranteed given the ideological and political leanings of those judges.

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Speaker 2: I think it's worth noting the distinction between what would

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Speaker 2: be ideological and what would be political that we've seen

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Speaker 2: in very recent years and so in the space of

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Speaker 2: that with Judge Chasmeric being very outspoken in terms of

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Speaker 2: his anti abortion views, as anti abortion writings, et cetera,

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Speaker 2: that even though the Supreme Court had ruled that the

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Speaker 2: plaintiffs in the Mythopristone case, where he had basically provided

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Speaker 2: or this alliance all that they had requested, basically wrote

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Speaker 2: an opinion and that decision that was very generous towards

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Speaker 2: their interests, the Supreme Court ruled that this particular group

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Speaker 2: which fashioned themselves as doctors, but one was a dentist

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Speaker 2: and another one a master's degree in theology, the Court ruled

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Speaker 2: that they did not have standing. The Supreme Court did. Now,

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Speaker 2: with your question about this new prop of individuals, I

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Speaker 2: preface it by just simply saying that Judge Becausemeric has

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Speaker 2: shown himself to be outcome determinative. He relied in the

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Speaker 2: Mythopristoe case on an anonymous blog post, he relied on

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Speaker 2: invited two articles that were later rescinded because of their

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Speaker 2: dramatic and accuracies. And so we're not talking about a

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Speaker 2: judge that has shown the capacity for looking objectively matters

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Speaker 2: with regard to abortion, and that includes with how he's

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Speaker 2: handled matters of standing.

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Speaker 1: The lawsuits going forward in Texas, then with these Republican

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Speaker 1: states as the plaintiffs for now, that.

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Speaker 2: Is what's taking shape. And let me just add one

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Speaker 2: additional thing to this, which is that the Supreme Court

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Speaker 2: itself gave an open door for the possibility that there

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Speaker 2: could be other plaintiffs that might be able to pursue

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Speaker 2: this line of argumentation. So even while the Supreme Court

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Speaker 2: ruled that the plaintiffs who are part of the Hippocratic

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Speaker 2: Alliance did not have standing, the Court yet offered other

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Speaker 2: kinds of analysis where there could be others that would

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Speaker 2: perhaps be able to pursue this line of limiting myfipristone

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Speaker 2: in the market.

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Speaker 1: Let's say Kasmeric's decision goes up to the Fifth Circuit,

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Speaker 1: which I assume it will at some point.

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Speaker 4: Yeah, and the.

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Speaker 1: Fifth Circuit finds that these states have standing, these Republican

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Speaker 1: led states, that is contrary to the Ninth Circuit's ruling.

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Speaker 1: So then this issue goes back up to the Supreme Court.

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Speaker 2: Yeah. So the Fifth Circuit has shown itself to also

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Speaker 2: be one of the most conservative in a political fashion,

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Speaker 2: not just ideological. You know, over centuries there are judges

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Speaker 2: justices that have ideological leanings, There's been some room for

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Speaker 2: accepting that their ideological leanings may be infused and how

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Speaker 2: they observe, analyze right an opinion about a case. But

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Speaker 2: I think it's important to note that what federal judges, scholars,

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Speaker 2: and others are noticing is that we're in a space

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Speaker 2: that's far beyond ideology, where they're seemingly a political agenda

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Speaker 2: amongst some judges and even justices. The Fifth Circuit has

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Speaker 2: been called out in that regard for taking extreme views

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Speaker 2: that are extreme departures for what has been American rule

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Speaker 2: of law. And it would not be surprising if it

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Speaker 2: were that Judge chrismeric who failed in the first Methiprostone case,

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Speaker 2: and that failure was in not recognizing that those individuals

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Speaker 2: did not qualify for standing, for which he was corrected

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Speaker 2: at the Supreme Court level. Right, So that was a

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Speaker 2: failure that was corrected by the Supreme Court, but it

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Speaker 2: was a failure that was not caught by the Fifth Circuit.

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Speaker 2: An argument being that this is a Fifth Circuit that

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Speaker 2: has also deeply political views, and those are deeply conservative

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Speaker 2: political views that one might say align was a judge

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Speaker 2: like Judge Chasmeric. So if there is a conflict between

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Speaker 2: the Ninth Circuit and the Fifth Circuit, those are usually

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Speaker 2: matters that are resolved by the Supreme Court. Now, it's

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Speaker 2: not as if it would be new where there are

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Speaker 2: circuits that are in disagreement and the Court doesn't take

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Speaker 2: them up right away. Right, that's taken place before. But

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Speaker 2: on an issue like abortion, which has so captivated this

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Speaker 2: country politically and otherwise. There's stories about women who are struggling,

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Speaker 2: who had miscarriages that needed to be managed and were

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Speaker 2: near death, has really captured the public imagination, and so

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Speaker 2: with that, it would not be surprising that the Supreme

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Speaker 2: Court would grant cert to resolve this issue.

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Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 1: this conversation with Georgetown Law professor Michelle Goodwin. We'll talk

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Speaker 1: about the legal battles over those ballot measures getting on

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Speaker 1: state ballots in November. I'm Jim Grosso and you're listening

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Speaker 1: to Bloomberg. I've been talking to Professor Michelle Goodwin of

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Speaker 1: Georgetown Law about the legal battles over abortion. Michelle, as

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Speaker 1: far as the case is over MIFA pristone, the abortion

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Speaker 1: pill part of the attack is that the FDA, according

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Speaker 1: to the conservatives who are suing, hasn't done the right

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Speaker 1: risk evaluation and mitigation strategies on MIFA pristone, so you know,

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Speaker 1: the approval process, etc. As being attacked. Could the FDA

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Speaker 1: go through the approval process again and deal with all

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Speaker 1: these things that are being brought up.

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Speaker 2: That's a really good question. And what your question surfaces

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Speaker 2: is something that one saw was trap laws, so the

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Speaker 2: targeted regulations of abortion providers when I was writing about

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Speaker 2: these issues, you know, a decade ago, right as being

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Speaker 2: the flash points that one needed to pay attention to

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Speaker 2: because you know, being able to see what was coming

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Speaker 2: up the pipeline. Well, this is much like that. You know,

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Speaker 2: part of the point of trap laws was in fact

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Speaker 2: an attempt to constrain access to reproductive healthcare such as abortion.

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Speaker 2: But what it also did is that it meant that

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Speaker 2: well established law and people who supported well established law,

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Speaker 2: be it agencies advocacy organizations, had to begin spending their

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Speaker 2: wheels and spending money in order to respond to these

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Speaker 2: targeted regulations of abortion providers. And what one sees in

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Speaker 2: the space of this is that even if there are failures,

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Speaker 2: if it gets the FDA and organizations having to utilize

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Speaker 2: resources and fight then then also then exhaust other ways

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Speaker 2: in which they might promote healthcare or promote health advocacy

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Speaker 2: within the reproductive landscape. So for the FDA to go

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Speaker 2: back would be unheard of. I mean, typically that doesn't happen.

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Speaker 2: It doesn't happen with a drug that's already been proven

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Speaker 2: to be safe and effective. There aren't claims outside of

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Speaker 2: groups that are anti abortion that mifipristone is unsafe, unaffective

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Speaker 2: and that was rushed to the marketplace. There has been literally,

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Speaker 2: i mean tens of thousands of people who it was

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Speaker 2: smith a frist zone. There is no sort of collection

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Speaker 2: of litigant who viewed it who said that they were

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Speaker 2: you know, harmed by this and the fdation of known

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Speaker 2: right that that just doesn't exist. And it's also very

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Speaker 2: interesting too another point when you think about this that

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Speaker 2: to the extent that there are those that are arguing

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Speaker 2: that it is unsafe and effective for a lot of

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Speaker 2: people who do not have uteruses, right, So, uh, which

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Speaker 2: is just as a point, right, So, typically when there's

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Speaker 2: you know, litigation, you're able to bring forward you know,

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Speaker 2: here's this mass litigations was rushed to the marketplace. Look

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Speaker 2: at all of these people who are harmed by it,

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Speaker 2: whose futures were undermined by it, you know, were in healthcare.

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Speaker 2: There is the willingness to accept the randomness of people

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Speaker 2: who may be harmed in We protect against that at

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Speaker 2: the federal level. For example, with vaccines. Right, there are

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Speaker 2: shield laws that recognize that not all people will respond

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Speaker 2: to vaccines as the vast majority will. Right, But we

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Speaker 2: don't take vaccines off the marketplace like polio and whatnot

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Speaker 2: because there is this very isolated, random person that is

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Speaker 2: negatively impacted. And the same would apply to a drug

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Speaker 2: like mesapristone or any other drug. We don't take them

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Speaker 2: off the marketplace because there is that sort of random,

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Speaker 2: isolated one person who is negatively impacted by it.

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Speaker 1: Let's turn to be the abortion rights ballot measures. So

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Speaker 1: I counted definitely on the ballot abortion rights measures in

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Speaker 1: five states Colorado, Florida, Maryland, Nevada, and South Dakota. And

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Speaker 1: signatures have been submitted in awaiting approval in Arizona, Montana, Missouri,

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Speaker 1: and Nebraska. And there are disputes over these ballot measures

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Speaker 1: in some states. In Arizona, there's a dispute over how

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Speaker 1: to describe the measure. A Republican led legislative committee wants

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Speaker 1: to describe a fetus as an unborn human being, and

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Speaker 1: that's being opposed by abortion rights groups. This also happened

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Speaker 1: in Florida. It's an attempt to use language to sort

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Speaker 1: of prejudice or confuse the abortion issue.

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Speaker 2: Well, we've seen that contestation in Ohio as well. We

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Speaker 2: saw aspects of that in Michigan. So there is an

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Speaker 2: argument that there has been manipulation and coercion, and that

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Speaker 2: is to say that voters should be able to determine

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Speaker 2: how they feel about these issues based on what happens

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Speaker 2: to be basic scientific, factual information and not be misled

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Speaker 2: by the narratives that have been put forward, including ones

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Speaker 2: of saying that fetuses are unborn children. In various other ways.

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Speaker 2: In Ohio there were in Michigan, there are a number

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Speaker 2: of other ways in which there were state officials who

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Speaker 2: sought to undermine the clarity of what was actually on

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Speaker 2: the ballid initiative. And I think that there is a

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Speaker 2: broader issue to consider in that regard, and that is

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Speaker 2: that despite the fact that the Supreme Court and the

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Speaker 2: Dobbs decision said that these would be matters that would

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Speaker 2: be left to states in their voters. It's not There's

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Speaker 2: been a deep level of political coercion in trying to

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Speaker 2: limit voters access to be able to engage in the

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Speaker 2: political process in these valid initiatives. So when these valid

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Speaker 2: initiatives are not just simple, clean, clear scientific health information,

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Speaker 2: but instead are saddled with innuento, it strikes against what

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Speaker 2: was the principle articulated and Dobbs that voters get to

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Speaker 2: decide these are state level matters, and in some ways

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Speaker 2: it ties a voter's hands behind her back, where then

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Speaker 2: she has to study and look at the ballot initiatives

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Speaker 2: more closely, lug up information to make sure that what

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Speaker 2: it is that's being voted on, you know, follows the

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Speaker 2: values and interest that she has, no matter which way

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Speaker 2: he or she you know, or they happen to be voting.

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Speaker 2: It's become far more complicated. And of course in Ohio

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Speaker 2: what we saw were efforts to even change the way

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Speaker 2: in which ballid initiatives go forward, such as increasing the

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Speaker 2: percentage that would be necessary in order for a ballot

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Speaker 2: initiative to be able to prevail in all of this.

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Speaker 2: Around the matter with regard to abortion.

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Speaker 1: A similar thing is happening in Montana, where the Secretary

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Speaker 1: of State was sued over changes she made to the

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Speaker 1: rules about whose signatures can be accepted to support ballot measures,

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Speaker 1: and last Tuesday, the Montana Supreme Court basically overruled her.

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Speaker 1: And in Arkansas, the Secretary of State reject to the

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Speaker 1: signatures that were submitted for a ballot measure and that's

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Speaker 1: headed to court. It seems like the greatest challenge might

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Speaker 1: just be in getting the abortion rights measures on the

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Speaker 1: ballot when they're being undermined by election officials.

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Speaker 2: That's right, which also says something very important about where

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Speaker 2: Americans have to pay attention, and I think Americans are

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Speaker 2: beginning to recognize how important it is the roles election

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Speaker 2: officials have in state government. The anti abortion movement has

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Speaker 2: been quite thoughtful and sophisticated with how they've chosen to

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Speaker 2: address the reshaping of American discourse, American law, and the

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Speaker 2: rule of law with regard to abortion and also other issues.

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Speaker 2: That is to say that there's been very close attention

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Speaker 2: paid to school boards, There's been very close attention paid

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Speaker 2: to state's attorney generals, to secretaries of states, and also

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Speaker 2: then to election officials within states, and then also you know,

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Speaker 2: local city councils and whatnot. Basically, no stone unturned from

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Speaker 2: a movement that seeks to solidify complete resistance to abortion rights,

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Speaker 2: and complete resistance that's not always in objective and fair ways,

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Speaker 2: complete resistance in ways that may also be undermining, which

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Speaker 2: has been what some of these state supreme courts have

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Speaker 2: responded to, seeing the lack of legitimacy in the way

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Speaker 2: in which there have been efforts to undermine voters being

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Speaker 2: able to have a clear and clean access not only

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Speaker 2: to casting a vote, but to know what they are

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Speaker 2: casting a vote about.

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Speaker 1: I take it it's because all of these abortion related measures,

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Speaker 1: what it was, seven ballid questions in the last two years,

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Speaker 1: they pass, So it's a fear. I take it that

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Speaker 1: if the voters actually confront the issue, they'll approve abortion rights.

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Speaker 2: That is the real concern, and consistently what one has

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Speaker 2: seen in these valid initiatives, and I think that's why

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Speaker 2: this is so alarming in the efforts to try to

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Speaker 2: undermine this political effort, is because even in states where

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Speaker 2: there are conservative legislatures, there has been the rejection of

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Speaker 2: valid initiatives that would instantiate let's say, personhood in the

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Speaker 2: state's constitution in order to prevent people in that states

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Speaker 2: from ever being able to have abortion access. We saw

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Speaker 2: that in the state of Kentucky. Alternatively, what we've seen

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Speaker 2: is that in states that have blue legislatures or you know,

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Speaker 2: democratic governors, or ones where the legislature is a bit mixed,

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Speaker 2: such in the state of Michigan, for example, he's seen

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Speaker 2: very successful valid initiative and in Ohio successful balid initiatives

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Speaker 2: that defend the constitutional right to be able to terminate

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Speaker 2: a pregnancy. You know, there are a couple things that

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Speaker 2: one can see in the space of all of it.

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Speaker 2: When the Supreme Court overturned Roe v. Wade and Planned

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Speaker 2: Parenthood be casey, they did so despite the fact that

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Speaker 2: consistently was polling. Most Americans support abortion rights in the

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Speaker 2: United States, they support contraception contraceptive access, and since the

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Speaker 2: DBS decision, that support has intensified, particularly given that Americans

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Speaker 2: have seen how draconian the enforcement of anti abortion measures

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Speaker 2: happened to be, how cool they happen to be, such

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Speaker 2: that even in cases where women are near death on

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Speaker 2: death's door, there's basically been the concern that they are

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Speaker 2: not being able to receive the medical care in those

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Speaker 2: states that they need. So we see that in Idaho

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Speaker 2: where there have been doctors that have helicoptered women out

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Speaker 2: of the state in order to get the health care

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Speaker 2: that they need. In the state of Texas, even after

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Speaker 2: Kate Cox and her doctor were successful in getting a

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Speaker 2: district court judge to agree that the state's exception should

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Speaker 2: apply to Kate Cox such that she should be able

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Speaker 2: to get an abortion in the state of Texas, we

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Speaker 2: have both the state's attorney general and the state Supreme

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Speaker 2: Court saying, well, that doesn't apply. Kate Cox isn't the

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Speaker 2: ideal person who would qualify for the exception. He had

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Speaker 2: the state's attorney general going so far as the contact

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Speaker 2: doctors and the hospitals threatening them with punishment civil, criminal,

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Speaker 2: et cetera if they were to go forward and provide

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Speaker 2: the relief that Kate Cox needed, which a lower court

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Speaker 2: judge said that she deserves to have.

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Speaker 1: The litigation will continue and continue, and we'll see whether

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Speaker 1: abortion rights measures can get on the ballot in some

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Speaker 1: of the states that we talked about, Arizona, Arkansas, Montana, Missouri,

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Speaker 1: and Nebraska so far. Thanks so much for being on

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Speaker 1: the show, Michelle. That's Professor Michelle Goodwin of Georgetown Law.

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Speaker 1: Coming up next on The Bloomberg Lawn Show. We're down

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Speaker 1: to the finish line in the race for President Biden

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Speaker 1: to catch former President Trump in the number of judicial appointments.

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Speaker 1: I'm June Grosso and you're listening to Bloomberg. In one

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Speaker 1: term as president, Donald Trump appointed two hundred and thirty

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Speaker 1: four judges, well below the totals of recent two term presidents,

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Speaker 1: including Barack Obama, George W. Bush, and Bill Clinton. And

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Speaker 1: as far as appellate courts, Trump flipped the balance of

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Speaker 1: several appeals courts from a majority of Democratic appointees to

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Speaker 1: a majority of Republican appointees. President Joe Biden is in

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Speaker 1: a race to equal or beat the number of judges

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Speaker 1: up point Trump. The Senate has confirmed two hundred and

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Speaker 1: two judges nominated by Biden, and it's the home stretch.

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Speaker 1: Joining me is an expert in the federal judiciary, Carl

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Speaker 1: to Bias, a professor at the University of Richmond Law School.

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Speaker 1: Carl Biden has appointed forty three judges to the appellate courts.

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Speaker 1: How does that compare to Trump's number?

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Speaker 4: Well, Trump ended up with fifty four, and if you

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Speaker 4: remember back in twenty fifteen sixteen, the GOP majority in

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Speaker 4: the Senate only confirmed two of Obama's nominees in those

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Speaker 4: two years, and so there were many vacancies available for Trump,

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Speaker 4: and he filled them quite quickly once he was elected,

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Speaker 4: and so that explains it. There just haven't been that

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Speaker 4: many vacancies available. But there are more nominees too. There

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Speaker 4: four or five who are waiting, mostly on the floor.

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Speaker 4: One may have at hearing this week, and so I

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Speaker 4: expect that Biden will come close to Trump's fifty four,

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Speaker 4: but maybe not many more than that, and probably lucky

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Speaker 4: to get to that point because they're about six or

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Speaker 4: seven vacancies now. But I don't foresee very many people

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Speaker 4: taking senior status, for example, until after the election, if

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Speaker 4: at all, and so there may not be opportunities coming up.

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Speaker 4: And of course there's a very truncated Senate schedule moving forward.

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Speaker 4: They go out this week and then stay out till

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Speaker 4: week after Labor Day, and then come and work three

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Speaker 4: weeks and then go to campaign until the elections, and

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Speaker 4: then there's a lame duck starting on November twelve, I believe.

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Speaker 1: So you think during the lame duck they can get

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Speaker 1: some things done.

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Speaker 4: Absolutely, I mean I think they intend to have hearings

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Speaker 4: and to move people out of committee to the floor

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Speaker 4: and have and confirmation votes all the way till the

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Speaker 4: holidays in late December. That's my understanding, and Thanksgiving is

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Speaker 4: the only break they'll have then. And so there are

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Speaker 4: a number of weeks there, and there are many people

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Speaker 4: on the floor right now waiting for culture and confirmation votes,

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Speaker 4: a dozen or more, and there will be more. There's

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Speaker 4: hearing this Wednesday, So they're determined to move them. They

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Speaker 4: just won't have a lot of working days when they

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Speaker 4: get back from the break for August.

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Speaker 1: Bloomberg Law Nowsis shows that more than half of Biden's

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Speaker 1: federal appellate Court appointments so far we're in their forties

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Speaker 1: or younger when they join the bench. Is this about

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Speaker 1: cementing your legacy versus having more experienced judges on the bench.

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Speaker 4: Yes, And I think presidents of both parties have done

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Speaker 4: that really for a long time now, both Democratic and Republican.

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Speaker 4: If you think back to Bush or even to Reagan,

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Speaker 4: Clinton is I think the person who thought that it

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Speaker 4: was a capstone to your career to appoint someone to

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Speaker 4: the federal bench. But I think that presidents in this

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Speaker 4: century have been much more inclined to move to younger

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Speaker 4: and younger people. Trump certainly did that. I think he

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Speaker 4: had people in their thirties on the appeals courts, and Biden, though,

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Speaker 4: has followed that in many people in their forties and

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Speaker 4: some in their fifties, but hardly any older than that.

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Speaker 1: Former judge Paul Watford, who was forty four when he

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Speaker 1: joined the Ninth Circuit, said, I don't see anything good

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Speaker 1: that comes from nominating people to the bench at a

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Speaker 1: very young age. To be frank with you, also, several

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Speaker 1: judges who were nominated when they were young have stepped

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Speaker 1: down to join law firms, and so they don't on

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Speaker 1: the bench. As long as as you might think.

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Speaker 4: That's true, I mean that has happened, and I'm thinking

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Speaker 4: of something like Greg Costa on the Fifth Circuit Watford,

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Speaker 4: and that's unfortunate, but they certainly would be paid a

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Speaker 4: lot more and might like the work more than for example,

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00:29:21,440 --> 00:29:27,000
Speaker 4: Costa dissenting on the Fifth Circuit, and not much opportunity

435
00:29:27,280 --> 00:29:30,560
Speaker 4: to change the composition of that court because so many

436
00:29:31,000 --> 00:29:36,440
Speaker 4: geologically conservative people were nominated and confirmed by Trump. So

437
00:29:37,040 --> 00:29:41,160
Speaker 4: it's to be expected, I suppose, but it's unfortunate and

438
00:29:41,280 --> 00:29:44,680
Speaker 4: so you may see that trend as well. I think

439
00:29:44,720 --> 00:29:46,440
Speaker 4: there have been a number of district judges too. I'm

440
00:29:46,440 --> 00:29:50,040
Speaker 4: thinking one in New Jersey who only stayed on six

441
00:29:50,160 --> 00:29:54,000
Speaker 4: years just because he thought that there were better opportunities

442
00:29:54,040 --> 00:29:56,400
Speaker 4: for him in the private sector.

443
00:29:56,680 --> 00:30:00,360
Speaker 1: It's also been pointed out that when you're younger as

444
00:30:00,400 --> 00:30:03,240
Speaker 1: a trial judge district court judge, and you don't have

445
00:30:03,280 --> 00:30:07,560
Speaker 1: that much experience, it can be more obvious than if

446
00:30:07,560 --> 00:30:09,920
Speaker 1: you're on a pellet bench where you're sitting with at

447
00:30:10,000 --> 00:30:13,480
Speaker 1: least two other people. And I can think recently of

448
00:30:13,680 --> 00:30:19,160
Speaker 1: Judge Eileen Cannon in Florida, a Trump appointee who was

449
00:30:19,200 --> 00:30:24,600
Speaker 1: in her late thirties, and her handling of the classified

450
00:30:24,640 --> 00:30:28,680
Speaker 1: documents case has drawn all kinds of criticism.

451
00:30:29,080 --> 00:30:32,320
Speaker 4: Yes, I think it's difficult and it's unfortunate that her

452
00:30:32,400 --> 00:30:35,680
Speaker 4: colleagues didn't help her, and I think she was pretty

453
00:30:35,720 --> 00:30:38,760
Speaker 4: isolated in Fort Pierce, you know, and even the chief

454
00:30:38,880 --> 00:30:43,480
Speaker 4: judge apparently suggested that this might be a tough case

455
00:30:43,760 --> 00:30:46,520
Speaker 4: for her. To handle. But it's different, you know than

456
00:30:46,680 --> 00:30:50,320
Speaker 4: say in Miami, where you have twenty or twenty five judges,

457
00:30:51,040 --> 00:30:56,000
Speaker 4: and I think there's more consultation, there's more collegiality, there

458
00:30:56,000 --> 00:30:58,080
Speaker 4: are more people to talk with and all of that,

459
00:30:58,480 --> 00:31:01,280
Speaker 4: and so I think it hard, and you know, you

460
00:31:01,360 --> 00:31:04,720
Speaker 4: get a big case load. I mean, remember that Maldonado

461
00:31:04,800 --> 00:31:08,240
Speaker 4: who was on the Northern distri of Illinois. Three judges

462
00:31:08,280 --> 00:31:11,520
Speaker 4: retired from that court and they dumped three hundred cases

463
00:31:11,560 --> 00:31:15,800
Speaker 4: on her. That's tough to have to handle that kind

464
00:31:15,840 --> 00:31:19,920
Speaker 4: of docket, but that often happened. I talked to some judges,

465
00:31:19,960 --> 00:31:22,720
Speaker 4: you know, who are like the most recent appointees in

466
00:31:23,000 --> 00:31:28,040
Speaker 4: various districts, and they get the least desirable cases sometimes,

467
00:31:28,160 --> 00:31:29,320
Speaker 4: and so it's tricky.

468
00:31:29,840 --> 00:31:34,800
Speaker 1: Also, another younger judge was Joshua Kindridge who stepped down

469
00:31:35,240 --> 00:31:40,200
Speaker 1: from the Alaska district because of that sex scandal. So

470
00:31:40,240 --> 00:31:44,840
Speaker 1: now that leaves just one judge in Alaska right now?

471
00:31:45,080 --> 00:31:47,280
Speaker 4: Are they going to be able to fill those The

472
00:31:47,360 --> 00:31:50,640
Speaker 4: saving grace there is the senior judges. I believe there

473
00:31:50,640 --> 00:31:54,840
Speaker 4: are three or four working with the one active judge

474
00:31:54,840 --> 00:31:59,360
Speaker 4: who also is a chief judge. So I think the

475
00:31:59,400 --> 00:32:03,200
Speaker 4: Senators need to work together, and I hope they're doing that,

476
00:32:03,480 --> 00:32:07,760
Speaker 4: but certainly Murkowski has been pretty vocal that this needs

477
00:32:07,800 --> 00:32:12,560
Speaker 4: to happen. But whether it'll happen soon, I'm not positive.

478
00:32:12,880 --> 00:32:14,760
Speaker 4: I know the White House would be happy to work

479
00:32:14,800 --> 00:32:19,480
Speaker 4: with them and find some fine people to help the courts.

480
00:32:19,480 --> 00:32:22,160
Speaker 4: But it's tough though the seniors. I think there are

481
00:32:22,280 --> 00:32:26,920
Speaker 4: three or four very experienced and well respected senior judges,

482
00:32:26,960 --> 00:32:29,520
Speaker 4: but I think two of them are not eighty in Alaska,

483
00:32:29,640 --> 00:32:31,440
Speaker 4: so that makes it tough as well.

484
00:32:31,720 --> 00:32:36,000
Speaker 1: Donald Trump really appointed a lot of ideologues, you know,

485
00:32:36,120 --> 00:32:40,600
Speaker 1: who were blatantly conservative. Has Biden done the same thing

486
00:32:40,920 --> 00:32:43,720
Speaker 1: with his judges. Has there been a focus on the

487
00:32:43,840 --> 00:32:47,920
Speaker 1: ideological outlook more than there was years ago.

488
00:32:48,480 --> 00:32:51,360
Speaker 4: I don't think so. I don't think as much. I mean,

489
00:32:51,440 --> 00:32:56,480
Speaker 4: I think what his goal has been is diversity, but

490
00:32:57,040 --> 00:33:03,000
Speaker 4: principally experiential diversity, which talked about that before. Many more

491
00:33:03,360 --> 00:33:08,400
Speaker 4: people who did criminal defense work than prosecutors, and the

492
00:33:08,480 --> 00:33:12,080
Speaker 4: tradition was, as you know, forever that most of the

493
00:33:12,160 --> 00:33:15,800
Speaker 4: people were former prosecutors in the federal or state systems

494
00:33:16,320 --> 00:33:20,840
Speaker 4: or from big law firms, and Biden has changed that.

495
00:33:21,520 --> 00:33:24,480
Speaker 4: More people who've done plaint of side work, more people

496
00:33:24,480 --> 00:33:29,400
Speaker 4: who do employee side labor work, more legal aid lawyers,

497
00:33:29,440 --> 00:33:32,560
Speaker 4: more civil rights lawyers, And I think that's the hallmark

498
00:33:32,600 --> 00:33:36,840
Speaker 4: of his appointees, as well as ethnic, gender, and sexual

499
00:33:36,840 --> 00:33:42,880
Speaker 4: orientation diversity. But I think partly the administration may believe

500
00:33:42,960 --> 00:33:46,320
Speaker 4: that a number of people who do that type of

501
00:33:46,360 --> 00:33:51,360
Speaker 4: work have different ideological views than say, some Trump appointees.

502
00:33:51,640 --> 00:33:55,880
Speaker 4: And don't forget the Fifth Circuit has been reversed a

503
00:33:56,000 --> 00:33:59,560
Speaker 4: number of times by the Supreme Court in the most

504
00:33:59,560 --> 00:34:03,000
Speaker 4: recent terms just because some of their opinions are just

505
00:34:03,160 --> 00:34:06,440
Speaker 4: too far even for the Supreme Court. I think they

506
00:34:06,440 --> 00:34:08,920
Speaker 4: didn't have a very good record this year. And you know,

507
00:34:09,000 --> 00:34:11,080
Speaker 4: the abortion pill case is a good example.

508
00:34:11,480 --> 00:34:14,759
Speaker 1: Did you have any idea how Harris might approach this

509
00:34:15,000 --> 00:34:17,480
Speaker 1: similar to Biden different? What do you think?

510
00:34:17,920 --> 00:34:22,720
Speaker 4: Well, I think she will take on the same kind

511
00:34:23,000 --> 00:34:28,439
Speaker 4: of emphasis that Biden has pursued experiential diversity and other

512
00:34:28,520 --> 00:34:33,279
Speaker 4: forms of diversity. And in her time on the Judiciary Committee,

513
00:34:33,719 --> 00:34:37,640
Speaker 4: she was a quite active member and a very strong member,

514
00:34:37,960 --> 00:34:43,399
Speaker 4: and you might remember her questioning of Justice Kavanaugh at

515
00:34:43,480 --> 00:34:47,680
Speaker 4: his hearing was very vigorous and rigorous and tough. And

516
00:34:47,880 --> 00:34:50,799
Speaker 4: so that was my general sense of her as a

517
00:34:51,000 --> 00:34:55,400
Speaker 4: tough former prosecutor on the Judiciary Committee, asking hard questions

518
00:34:55,440 --> 00:35:00,000
Speaker 4: of especially Trump nominee, because she served on that committee

519
00:35:00,120 --> 00:35:05,319
Speaker 4: during I think his whole tenure, and so I think

520
00:35:05,360 --> 00:35:08,640
Speaker 4: she really understands that, and she understands the federal courts,

521
00:35:09,200 --> 00:35:13,480
Speaker 4: and so that's all very valuable, and I think she'll

522
00:35:13,520 --> 00:35:16,400
Speaker 4: be good. And I think a number of people in

523
00:35:16,440 --> 00:35:19,880
Speaker 4: the White House are still there working on judicial selection,

524
00:35:20,680 --> 00:35:24,280
Speaker 4: and so if she's elected, she I think would probably

525
00:35:24,440 --> 00:35:27,279
Speaker 4: call on a number of those same people who have

526
00:35:27,440 --> 00:35:29,120
Speaker 4: done excellent work so far.

527
00:35:29,719 --> 00:35:33,560
Speaker 1: Of course, if Trump wins, we already know what kinds

528
00:35:33,600 --> 00:35:37,439
Speaker 1: of judges he'll be appointing. Thanks so much, Carl. That's

529
00:35:37,440 --> 00:35:41,120
Speaker 1: Professor Carl Tobias of the University of Richmond Law School.

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00:35:41,680 --> 00:35:44,320
Speaker 1: And that's it for this edition of the Bloomberg Law Podcast.

531
00:35:44,680 --> 00:35:47,040
Speaker 1: Remember you can always get the latest legal news by

532
00:35:47,080 --> 00:35:50,920
Speaker 1: subscribing and listening to the show on Apple Podcasts, Spotify,

533
00:35:51,200 --> 00:35:55,040
Speaker 1: and at Bloomberg dot com, Slash podcast, Slash Law. I'm

534
00:35:55,120 --> 00:35:57,560
Speaker 1: June Grosso and this is Bloomberg