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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. The relentless base

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Speaker 1: of the Senate's confirmation of President Trump's judicial nominees slowed

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Speaker 1: briefly during the government shutdown, but it picks back up

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Speaker 1: this week with Republican Senator Lindsley Graham at the helm

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Speaker 1: of the Senate Judiciary Committee, replacing Senator Chuck Grassley. Joining

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Speaker 1: me is Carl Tobias, professor at the University of Richmond

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Speaker 1: School of Law. Carl explain the process of renominations and

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Speaker 1: why it's necessary. Well, at the end of the Congress,

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Speaker 1: all of those nominations to the judiciary the President made

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Speaker 1: last year expired on January two, and about seventy three

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Speaker 1: people he had nominated than had to be renominated. He

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Speaker 1: did last week renominate fifty of them, but they're twenty

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Speaker 1: three or so. He has not chosen to renominate yet

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Speaker 1: and may still do that. But that's what just happened,

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Speaker 1: and then on the Senate Judiciary Committee website, there will

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Speaker 1: be a business meeting and those nominees, h forty of

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Speaker 1: them are listed for the first time. Democrats will hold

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Speaker 1: them over for a week, but then the following Tuesday,

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Speaker 1: there will be a vote on all of them, I think,

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Speaker 1: and probably virtually all will go back to the floor

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Speaker 1: where they could be considered for confirmation votes. Now, he

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Speaker 1: dropped at least five nominees that were put forward by

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Speaker 1: Barack Obama when he was president, and a number of

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Speaker 1: appellate and district court nominees from California, New York, and Illinois.

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Speaker 1: What's your take on why, Well, it's not at all clear,

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Speaker 1: but there may be some payback, if you will, for

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Speaker 1: Democrats in blue states. Doesn't seem to make a lot

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Speaker 1: of sense. And many of those nominees, especially the Obama

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Speaker 1: nominees whom Trump renominated, were people who Republican senators recommended.

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Speaker 1: But I think, for example, in New York, Senator Schumer

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Speaker 1: and Gila Brand worked very hard with the President to

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Speaker 1: have a good slate that everybody could sign off on.

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Speaker 1: So I don't know what they'll do now, but hopefully

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Speaker 1: the district nominees who were not renominated will be renominated,

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Speaker 1: and the same as to a number of others. We

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Speaker 1: just don't know yet. So traditionally, the White House negotiates

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Speaker 1: with the home state senators, as you mentioned Schumer and

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Speaker 1: gilla Brand to find consensus picks, and then the majority

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Speaker 1: waits for blue slips from those senators. Is that process

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Speaker 1: going on in the Trump administration and is there any

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Speaker 1: difference with the new White House Council. I don't think

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Speaker 1: there's any difference in Senator Graham has said he will

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Speaker 1: follow the same procedures for blue slips as Senator grass

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Speaker 1: Lee did. What Grassly did was create an exception for

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Speaker 1: the Appellate Court nominees and said if there were adequate

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Speaker 1: White House consultation, then blue slips were not going to

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Speaker 1: be relevant, even if senators withheld them. And so that

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Speaker 1: was very different than the eight years under President Obama.

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Speaker 1: And so that's the major difference is at the circuit level.

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Speaker 1: And of course the administration has set records for appointing

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Speaker 1: people to the Appellate bench thirty in the first two years,

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Speaker 1: which is shattered all records for that number. Let's talk

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Speaker 1: a little bit about some of the nominees. The nominee

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Speaker 1: for Justice Brett Kavanaugh's old seat on the d C

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Speaker 1: Circuit is Naomi Rao, who works in the White House

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Speaker 1: Budget Office. Why are liberal groups complaining about her nomination. Well,

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Speaker 1: I think that she has what they can sider to

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Speaker 1: be fairly controversial writings, mostly when she was an undergraduate

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Speaker 1: or law student, but some law review articles she wrote

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Speaker 1: as a scholar, I think at George Mason are considered

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Speaker 1: to be somewhat controversial as well, and so I think

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Speaker 1: that's what they're concerned about. So we'll see what happens

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Speaker 1: with her. Does the minority have any real power here?

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Speaker 1: Because the Senate Republicans have even more of a majority

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Speaker 1: than they had before. Yes, it's now fifty seven as

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Speaker 1: opposed to and on the Committee it's twelve ten, and

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Speaker 1: so it the Democrats do not have a whole lot

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Speaker 1: of power, though Graham said he would retain blue slip

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Speaker 1: policy for district nominees. So even if it's a Democratic

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Speaker 1: objection to a nominee in the home state, that person

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Speaker 1: will not go forward, according to Senator Graham. And so

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Speaker 1: that's one piece of leverage that the Democrats do have,

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Speaker 1: and of course they can rigorously question people in hearings

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Speaker 1: and have debates on the floor, and so they haven't

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Speaker 1: lost everything. But one big notion that may come up

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Speaker 1: is the notion of of culture, where you cut off

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Speaker 1: debate if the majority wants to do that, And where

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Speaker 1: the big change could come is the number of post

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Speaker 1: culture debate hours. Right now, they're talking about a nuclear

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Speaker 1: option which would lower that time from thirty hours for

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Speaker 1: judicial nominees, for circuit nominees it would go to eight,

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Speaker 1: and for district nominees it would go to two, and

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Speaker 1: that would really accelerate confirmations. We've spoken before about the

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Speaker 1: possibility that Trump may be able to flip some of

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Speaker 1: the circuits with the current batch of nominees. Is there

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Speaker 1: a flip in the making? Um? No, but you're correct,

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Speaker 1: there's some strengthening of the number of GOP appointed nominees

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Speaker 1: if they're confirmed. For example, two more would be confirmed

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Speaker 1: to the sixth Circuit, which would mean they have a

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Speaker 1: fairly strong majority there if you consider appointing presidents, and

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Speaker 1: then or two for the ninth Circuit, which has been

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Speaker 1: the circuit that the President is most concerned about and

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Speaker 1: most often vilifies. Their two nominees out there who could

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Speaker 1: begin to make a change in their formal vacancies on

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Speaker 1: that court. But it's interesting there's three California nominees from October.

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Speaker 1: We're not renominating yet, and there may be negotiations between

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Speaker 1: the Senators in California and the White House on those renominations.

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Speaker 1: All right, Carla, let's talk about in the future. Thanks

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Speaker 1: so much. That's Carl Tobias, professor of the University of

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Speaker 1: Richmond's School of Law. Thanks for listening to the Bloomberg

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Speaker 1: Law Podcast. You can subscribe and listen to the show

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Speaker 1: on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast.

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Speaker 1: I'm June Rosso. This is Bloomberg. H m hm