Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. The relentless base
Speaker 1: of the Senate's confirmation of President Trump's judicial nominees slowed
Speaker 1: briefly during the government shutdown, but it picks back up
Speaker 1: this week with Republican Senator Lindsley Graham at the helm
Speaker 1: of the Senate Judiciary Committee, replacing Senator Chuck Grassley. Joining
Speaker 1: me is Carl Tobias, professor at the University of Richmond
Speaker 1: School of Law. Carl explain the process of renominations and
Speaker 1: why it's necessary. Well, at the end of the Congress,
Speaker 1: all of those nominations to the judiciary the President made
Speaker 1: last year expired on January two, and about seventy three
Speaker 1: people he had nominated than had to be renominated. He
Speaker 1: did last week renominate fifty of them, but they're twenty
Speaker 1: three or so. He has not chosen to renominate yet
Speaker 1: and may still do that. But that's what just happened,
Speaker 1: and then on the Senate Judiciary Committee website, there will
Speaker 1: be a business meeting and those nominees, h forty of
Speaker 1: them are listed for the first time. Democrats will hold
Speaker 1: them over for a week, but then the following Tuesday,
Speaker 1: there will be a vote on all of them, I think,
Speaker 1: and probably virtually all will go back to the floor
Speaker 1: where they could be considered for confirmation votes. Now, he
Speaker 1: dropped at least five nominees that were put forward by
Speaker 1: Barack Obama when he was president, and a number of
Speaker 1: appellate and district court nominees from California, New York, and Illinois.
Speaker 1: What's your take on why, Well, it's not at all clear,
Speaker 1: but there may be some payback, if you will, for
Speaker 1: Democrats in blue states. Doesn't seem to make a lot
Speaker 1: of sense. And many of those nominees, especially the Obama
Speaker 1: nominees whom Trump renominated, were people who Republican senators recommended.
Speaker 1: But I think, for example, in New York, Senator Schumer
Speaker 1: and Gila Brand worked very hard with the President to
Speaker 1: have a good slate that everybody could sign off on.
Speaker 1: So I don't know what they'll do now, but hopefully
Speaker 1: the district nominees who were not renominated will be renominated,
Speaker 1: and the same as to a number of others. We
Speaker 1: just don't know yet. So traditionally, the White House negotiates
Speaker 1: with the home state senators, as you mentioned Schumer and
Speaker 1: gilla Brand to find consensus picks, and then the majority
Speaker 1: waits for blue slips from those senators. Is that process
Speaker 1: going on in the Trump administration and is there any
Speaker 1: difference with the new White House Council. I don't think
Speaker 1: there's any difference in Senator Graham has said he will
Speaker 1: follow the same procedures for blue slips as Senator grass
Speaker 1: Lee did. What Grassly did was create an exception for
Speaker 1: the Appellate Court nominees and said if there were adequate
Speaker 1: White House consultation, then blue slips were not going to
Speaker 1: be relevant, even if senators withheld them. And so that
Speaker 1: was very different than the eight years under President Obama.
Speaker 1: And so that's the major difference is at the circuit level.
Speaker 1: And of course the administration has set records for appointing
Speaker 1: people to the Appellate bench thirty in the first two years,
Speaker 1: which is shattered all records for that number. Let's talk
Speaker 1: a little bit about some of the nominees. The nominee
Speaker 1: for Justice Brett Kavanaugh's old seat on the d C
Speaker 1: Circuit is Naomi Rao, who works in the White House
Speaker 1: Budget Office. Why are liberal groups complaining about her nomination. Well,
Speaker 1: I think that she has what they can sider to
Speaker 1: be fairly controversial writings, mostly when she was an undergraduate
Speaker 1: or law student, but some law review articles she wrote
Speaker 1: as a scholar, I think at George Mason are considered
Speaker 1: to be somewhat controversial as well, and so I think
Speaker 1: that's what they're concerned about. So we'll see what happens
Speaker 1: with her. Does the minority have any real power here?
Speaker 1: Because the Senate Republicans have even more of a majority
Speaker 1: than they had before. Yes, it's now fifty seven as
Speaker 1: opposed to and on the Committee it's twelve ten, and
Speaker 1: so it the Democrats do not have a whole lot
Speaker 1: of power, though Graham said he would retain blue slip
Speaker 1: policy for district nominees. So even if it's a Democratic
Speaker 1: objection to a nominee in the home state, that person
Speaker 1: will not go forward, according to Senator Graham. And so
Speaker 1: that's one piece of leverage that the Democrats do have,
Speaker 1: and of course they can rigorously question people in hearings
Speaker 1: and have debates on the floor, and so they haven't
Speaker 1: lost everything. But one big notion that may come up
Speaker 1: is the notion of of culture, where you cut off
Speaker 1: debate if the majority wants to do that, And where
Speaker 1: the big change could come is the number of post
Speaker 1: culture debate hours. Right now, they're talking about a nuclear
Speaker 1: option which would lower that time from thirty hours for
Speaker 1: judicial nominees, for circuit nominees it would go to eight,
Speaker 1: and for district nominees it would go to two, and
Speaker 1: that would really accelerate confirmations. We've spoken before about the
Speaker 1: possibility that Trump may be able to flip some of
Speaker 1: the circuits with the current batch of nominees. Is there
Speaker 1: a flip in the making? Um? No, but you're correct,
Speaker 1: there's some strengthening of the number of GOP appointed nominees
Speaker 1: if they're confirmed. For example, two more would be confirmed
Speaker 1: to the sixth Circuit, which would mean they have a
Speaker 1: fairly strong majority there if you consider appointing presidents, and
Speaker 1: then or two for the ninth Circuit, which has been
Speaker 1: the circuit that the President is most concerned about and
Speaker 1: most often vilifies. Their two nominees out there who could
Speaker 1: begin to make a change in their formal vacancies on
Speaker 1: that court. But it's interesting there's three California nominees from October.
Speaker 1: We're not renominating yet, and there may be negotiations between
Speaker 1: the Senators in California and the White House on those renominations.
Speaker 1: All right, Carla, let's talk about in the future. Thanks
Speaker 1: so much. That's Carl Tobias, professor of the University of
Speaker 1: Richmond's School of Law. Thanks for listening to the Bloomberg
Speaker 1: Law Podcast. You can subscribe and listen to the show
Speaker 1: on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast.
Speaker 1: I'm June Rosso. This is Bloomberg. H m hm