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Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: Federal district courts in thirteen states are already dealing with

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Speaker 1: shortages of judges that are considered judicial emergencies. What happens

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Speaker 1: after the pandemic when the backlog of cases that have

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Speaker 1: been put on hold is added to an already over

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Speaker 1: tax system. Joining me is Carl Tobias, a professor at

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Speaker 1: the University of Richmond Law School. So, first of all,

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Speaker 1: explain what a judicial emergency is. Well, when there's a

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Speaker 1: vacancy in a particular court, the administrative officer of the

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Speaker 1: U S courts looks at the time that vacancy has

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Speaker 1: been open and how many cases each judge on the

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Speaker 1: court is carrying, and they have a formula, and I

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Speaker 1: believe the cut off on timing is something like eighteen months.

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Speaker 1: But the one that's more important, I think for our

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Speaker 1: purposes and from any courts in terms of the forty

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Speaker 1: four emergencies is the caseload. And for example, in the

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Speaker 1: Central District of California in Los Angeles, most of the

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Speaker 1: judges are carrying twice the average caseload other judges in

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Speaker 1: the ninety three remaining districts around the country, and so

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Speaker 1: when you have that kind of caseload, it's just very

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Speaker 1: difficult to process all of the cases. And so the

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Speaker 1: Administrative Office declares an emergency, and hopefully the Senate prioritizes

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Speaker 1: with the White House those emergencies and tries to fill

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Speaker 1: them first, but that doesn't always happen. So a judicial

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Speaker 1: vacancy is not the same as a judicial emergency. No,

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Speaker 1: absolutely not. We now have seventy three district court vacancies

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Speaker 1: at the trial level in the federal system, but forty

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Speaker 1: four of these are emergencies, given they're huge caseloads and

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Speaker 1: sometimes the long periods they've been open. Now, let's just

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Speaker 1: talk about some of the districts that really seem to

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Speaker 1: be suffering, like the U. S. District Court for the

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Speaker 1: Western District of Washington, five of seven judge ships are vacant.

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Speaker 1: How long has that been going on and how do

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Speaker 1: they even deal with that on a normal day. Well,

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Speaker 1: it's extremely difficult. And of course that was the center

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Speaker 1: of where the virus started at least in the US,

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Speaker 1: and a number of those they can have been more

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Speaker 1: than a year, and some I think up to two

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Speaker 1: or three years, and so that really makes it pressing.

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Speaker 1: They do have senior judges and they are pitching in

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Speaker 1: and have for a long time, but by definition they

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Speaker 1: are older than active judges because you have to be

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Speaker 1: sixty five and have fifteen years of service and of ors,

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Speaker 1: that might put them in a vulnerable population. Uh. And

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Speaker 1: they've been working very hard for years now, and so

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Speaker 1: Judge Martinez, the chief Judge, has been very concerned, and

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Speaker 1: so they are talking about the possibility of bringing in

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Speaker 1: judges from other districts, and of course that happens fairly often.

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Speaker 1: Is is a practice that often is used in the

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Speaker 1: federal judiciary to move resources around. For example, a judge

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Speaker 1: in a less busy district, I believe the Eastern District

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Speaker 1: of Washington, mostly in Spokane. Some of the judges they're

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Speaker 1: are willing to come over and help out in Seattle.

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Speaker 1: And that's been an effective mechanism to use. And of

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Speaker 1: course now most of the courts are essentially shuttered in

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Speaker 1: many districts, especially for civil cases, but also some courts

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Speaker 1: Central District, California, Eastern District have sought exemptions from the

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Speaker 1: Speedy Trial Act on the criminal law side. And so

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Speaker 1: when and the courts do reopened, then there will be

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Speaker 1: this huge pen up demand, at least on the civil

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Speaker 1: side and probably on the criminal side. And so for

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Speaker 1: the Western District of Washington, those issues are going to

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Speaker 1: loom even larger. And the chief Judge, Martinez said he

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Speaker 1: was concerned that there wouldn't be any new judges until

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Speaker 1: one So it's going to be very difficult in that

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Speaker 1: court to do very much, especially once the court is

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Speaker 1: open and trying to move the civil and criminal cases. Also,

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Speaker 1: I wonder if the judges that they were going to

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Speaker 1: call on are going to be backed up with their

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Speaker 1: own cases once the courts reopened. Well, yes, and I

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Speaker 1: think that's true. It will depend on the court. There

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Speaker 1: are ninety four district courts around the country, and some

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Speaker 1: of them have had less restrictions imposed, though I doubt

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Speaker 1: during many have no restrictions. The administrty of offs of

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Speaker 1: the U. S Courts, the administrative arm of the federal courts,

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Speaker 1: has probably pretty good data on what the case loads

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Speaker 1: look like around the country and which judges are laboring

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Speaker 1: under huge case loads and ones who have lighter case loads.

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Speaker 1: And hopefully there could be some moving of judges around

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Speaker 1: from the district sit are not so pressed as places

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Speaker 1: like Washington or Central District of California. We've been talking

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Speaker 1: about this as an emergency for quite some time. And

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Speaker 1: what's interesting is the two active judges in that district

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Speaker 1: are eligible for retirement themselves at this point. But why

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Speaker 1: no judges even in the pipeline there, Well, that's a

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Speaker 1: good question. It's not clear, but the White House has

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Speaker 1: been more solicitors of feeling vacancies in the red states

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Speaker 1: than the blue states. For example, thirty five of the

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Speaker 1: forty four emergency vacancies are in Blue states like washing Ington,

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Speaker 1: New York, Illinois, and California and New Jersey is probably

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Speaker 1: the worst case scenario where there are six vacancies all

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Speaker 1: emergencies out of seventeen judge ships, and no nominee from

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Speaker 1: the Trump administration to date. Let's turn to the Central

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Speaker 1: District of California. The chief judge there said they're not

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Speaker 1: expecting any judges until late or early two and their

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Speaker 1: case load is over a thousand weighted cases. That's more

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Speaker 1: than double the national average. What is a weighted case

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Speaker 1: that looks at the type of case it is. In

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Speaker 1: other words, some cases are easier and simpler to resolve

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Speaker 1: than others. And so if you have a very complex case,

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Speaker 1: that gets a very high waiting and so that's the

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Speaker 1: way they try to balance out the case loads. And UM,

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Speaker 1: as you suggest, California Central District has huge vacancies. There

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Speaker 1: are some nominees for their ten emergencies in Central District

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Speaker 1: out of twenty seven, and so they're really in an

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Speaker 1: extreme situation. However, their nominees for eight of those positions

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Speaker 1: and three are on the floor awaiting UH confirmation votes.

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Speaker 1: So I'm cautiously optimistic that those three will be confirmed

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Speaker 1: UH and could well be confirmed whenever the Senate comes back,

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Speaker 1: And so there's some hope that at least three of

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Speaker 1: them would be filled. And two of those are presently

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Speaker 1: state judges at the super court level in I think

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Speaker 1: Los Angeles County and so would be experienced judges and

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Speaker 1: probably ready to take on these huge case loads. But

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Speaker 1: for the others it will be more difficult. Of course,

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Speaker 1: though some UM could have hearings and be confirmed. This year,

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Speaker 1: the average judge will handle about five weighted cases. How

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Speaker 1: do they even handle that many? That seems like an

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Speaker 1: enormous number of balls in the air, so to speak. Well,

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Speaker 1: that's true, but they have many mechanisms and some help

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Speaker 1: from magistrate judges and their clerks and court personnel. And

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Speaker 1: don't forget, nine of civil and criminal cases settle. So

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Speaker 1: it's not as if you're going to try all those cases.

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Speaker 1: A tiny percentage are tried. Uh, And so that's the

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Speaker 1: way the system tries to cope is to encourage settlements.

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Speaker 1: As far as the California judicial emergencies, a spokesman for

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Speaker 1: Senate Majority Leader Mitch McConnell blamed the crisis on the

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Speaker 1: California Democratic senators Diane Feinstein and Kamala Harris not allowing

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Speaker 1: quote highly qualified nominees to move forward. Harris's spokeswoman told

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Speaker 1: Bloomberg that she's worked diligently to advance more qualified nominees.

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Speaker 1: What's happening there the push and pull here, Well, you

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Speaker 1: have to go back to the beginning of the Trump administration,

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Speaker 1: and as we've talked about it before, the administration wanted

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Speaker 1: to concentrate on filling all of the appellate court vacancies,

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Speaker 1: and there were a number in California they have now filled,

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Speaker 1: I believe for ap pellet vacancies, all with the President's

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Speaker 1: choices all of whom were opposed by the to California senators,

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Speaker 1: but there seemed to be some agreement on the district

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Speaker 1: nominees for what are now seventeen vacancies statewide. There are

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Speaker 1: nominees for fourteen of those, and I don't have any

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Speaker 1: sense that either senators opposed to any of those nominees.

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Speaker 1: In fact, they returned their blue slips on all of them,

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Speaker 1: and some, as we said, have hearings and are before

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Speaker 1: on the Senate floor. So it's a little mystifying exactly

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Speaker 1: what McConnell's spokesperson is saying. There seems to be substantial

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Speaker 1: cooperation from the senators. For those who haven't been listening

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Speaker 1: to our conversations about these judges, explain the blue slip

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Speaker 1: and how it's still being used for district court nominees. Yes,

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Speaker 1: the Republicans essentially eliminated for the appeals courts, which enabled

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Speaker 1: them to confirm record numbers of people and leave only

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Speaker 1: one pellet vacancy nationwide out of seventy nine now, but

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Speaker 1: Chairman Graham of the Senate Judiciary Committee has said he

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Speaker 1: would honor them for the district courts. So both Home

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Speaker 1: state senators received blue slips from the chair when there's

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Speaker 1: a nomination in their state, and then they may choose

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Speaker 1: to return that, which signals that they agree the person

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Speaker 1: should have a hearing and go through the process, or

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Speaker 1: the senators can retain it and that would be the

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Speaker 1: end of the nomination. And so the senators have returned

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Speaker 1: to all of those blue slips for the nominees in California.

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Speaker 1: Are some senators push here about this. Let's talk about

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Speaker 1: blue states because that's where most of the emergencies are

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Speaker 1: are some of the senators push here about this, and

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Speaker 1: that's why they're moving a little bit faster than let's say, California.

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Speaker 1: We're New Jersey. Well they are, But some of it

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Speaker 1: comes down to the relationship between the White House Council,

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Speaker 1: who is really in charge of what happens in the

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Speaker 1: White House on nominations UH and the home state senators.

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Speaker 1: For example, Senator Durban from Illinois has been very aggressive

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Speaker 1: and very effective in working closely with the first White

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Speaker 1: House Council and the present White House Council to secure

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Speaker 1: nominations in a timely way and move them through the Senate.

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Speaker 1: He's very high in the leadership on the Democratic side

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Speaker 1: and he's a longtime member of the committee, and he's

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Speaker 1: been extremely successful, as has Senator Schumer Um by way

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Speaker 1: of filling vacancies in New York and having nominees for

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Speaker 1: present vacancies, though there's some vacancy still there, and so

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Speaker 1: UH and Senator of Einstein is ranking member on Judiciary

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Speaker 1: has enjoyed some success with district nominees from California, though

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Speaker 1: they haven't been confirmed yet, and so it really depends

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Speaker 1: on Um, the senators from the Home States working closely

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Speaker 1: and cooperatively with UH the White House, but there's plenty

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Speaker 1: of blame to go around, and often the White House

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Speaker 1: has not reached out or been as collegial as it

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Speaker 1: might be in working with the Home States senators. You

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Speaker 1: mentioned before that California asking now for them to suspend

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Speaker 1: the Speedy Trial Eastern District of California, the chief judge

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Speaker 1: there as well as Chief Judge Phillips in the Central District,

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Speaker 1: have asked the Nice Circuit Judicial Council to suspend the

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Speaker 1: Speedy Trial Act because of the crunch of case loads.

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Speaker 1: Will there be any problems with with attorneys for those

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Speaker 1: defendants saying he or she has a constitutional right to

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Speaker 1: have a speedy trial. Well, yes, and that would be

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Speaker 1: the argument that could well be made by individual council

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Speaker 1: for specific defendants. And that's why they have these exceptions

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Speaker 1: in the Speedy Trial Act, which act as a sort

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Speaker 1: of safety valve. But by and large they're supposed to

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Speaker 1: be speedy trials. That's Carl Tobias, a professor at the

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Speaker 1: University of Richmond Law School. You're listening to Bloomberg Law

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Speaker 1: with June Grazzo from Bloomberg Radio. Drive through Easter Services

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Speaker 1: took place in Kentucky after a new federal judge nominated

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Speaker 1: to a high profile appeals court found that restrictions placed

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Speaker 1: on those services were unconstitutional. But it wasn't the decision

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Speaker 1: itself that attracted attention. It was the way Judge Justin

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Speaker 1: Walker wrote that opinion. He begins by sighting St. Paul's

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Speaker 1: Gospels rather than case law, and delves into the historical

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Speaker 1: plight of Christians before getting to the case at hand.

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Speaker 1: About page seven more of a sermon than a legal decision,

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Speaker 1: joining me, as Josh Blackman, a constitutional law professor at

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Speaker 1: the South Texas College of Law, tell us about the

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Speaker 1: decision itself, was it in line with legal authority? Was

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Speaker 1: he correct When you look at this decision, I think

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Speaker 1: Cats considered the timeline. The timeline is very important here.

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Speaker 1: You have eastern Sunday, you have these emergency papers filed

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Speaker 1: on Thursday and into Friday, and then you are ruling

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Speaker 1: on Saturday. My objection to this ruling w so much

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Speaker 1: the outcome. I think he probably got the law right.

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Speaker 1: My objection to this ruling was the fact that it

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Speaker 1: even needs to happen. M Had the court held a

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Speaker 1: short twenty minute status conference, he could have gotten the

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Speaker 1: mayor's position, and I think the mayor would have said

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Speaker 1: that we are not going to take any action against

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Speaker 1: the churchgoers. At that point, the motion for a temporary

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Speaker 1: straining order against the mayor becomes moot. Perhaps there will

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Speaker 1: be some relief against the governor or the state police,

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Speaker 1: but would not be against the City of Louisville. So

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Speaker 1: I think the decision was probably right on the merits.

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Speaker 1: But it isn't clear to me that this decision needs

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Speaker 1: to happen, that you need to issue an injunction against

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Speaker 1: the mayor because he didn't plan to take action in

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Speaker 1: the first place. What about the way he wrote the opinion.

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Speaker 1: He begins by citing St. Paul's Gospel. According to St. Paul,

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Speaker 1: the first Pilgrim was able. He talks about the passion

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Speaker 1: of Christ, the plight of Christians. What was your reaction

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Speaker 1: into just the way this sounded more like a sermon

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Speaker 1: than a legal opinion. It sounded like a sermon. Um.

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Speaker 1: I I was. I was concurprised by the tone. UM.

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Speaker 1: I also think that parts of it were a little

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Speaker 1: bit political. Um. He was talking about history of a

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Speaker 1: religious discrimination and he mentioned that KKK, which has a

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Speaker 1: lot of religious scrimination. And he noted that Justice Hugo

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Speaker 1: Black and the Democratic Majority leader Robert Burger clans members. Um.

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Speaker 1: That's fairly well known in legal circles. But who cares, right,

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Speaker 1: it's not relevant. I mean, I suppose it's relevant show

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Speaker 1: that clans members reach high ranked society, but it's taken

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Speaker 1: on a political tone in modern day usage. Um. I

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Speaker 1: think the opinion could have been a lot shorter to

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Speaker 1: have gotten the point quicker. And I didn't think a

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Speaker 1: lot of the rhetoric was really helpful to the analysis.

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Speaker 1: But was it appropriate even to be talking about the

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Speaker 1: passion of Christ and ending with Grayer almost saying Christ

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Speaker 1: being there for us and have faith in that. Is

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Speaker 1: that even appropriate? I don't think I've ever seen an

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Speaker 1: opinion quite like it. Um. Perhaps the judge thought it

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Speaker 1: was appropriate given the subject matter Easter, but I have

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Speaker 1: not seen something like it. I I it was a

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Speaker 1: new one for me. So now we come to the

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Speaker 1: point of why. So this is a judge who has

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Speaker 1: been a federal judge for about six months after getting

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Speaker 1: an unqualified rating from the American Bar Association, but President

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Speaker 1: Trump has nominated him to the d C. Circuit Court

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Speaker 1: of Appeals, considered the second highest court in the land.

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Speaker 1: Did he look at this as almost an audition for

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Speaker 1: that spot or a higher spot? Um? So a few

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Speaker 1: points June. The audition criticism is not new. UM. We've

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Speaker 1: seen that in the past. And I'll give you a

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Speaker 1: couple examples. UM. When Judge Roberts was on, was in

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Speaker 1: the consideration to be to fill the rank with seat

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Speaker 1: back in or actually with your Connor seat back. In

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Speaker 1: two thousand five, UM, Judge Roberts issued a decision on

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Speaker 1: a Guantanmo case that was very much pro Bush administration, UM,

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Speaker 1: and it helped the Bush administration on an important detention issue. UM.

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Speaker 1: A lot of people said that Roberts wrote that opinion

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Speaker 1: as an audition tape for the Supreme Court and he

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Speaker 1: was actually picked eventually. I don't think so. I think

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Speaker 1: Roberts wrote what he actually thinks and would have written

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Speaker 1: in any circumstance. Um. There was another audition issue involving

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Speaker 1: Judge so to Mayor when she was in the Second

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Speaker 1: Circuit time. This is in two thousand I guess the

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Speaker 1: nine or so. UM. She was on the shortlist for

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Speaker 1: the Supreme Court. And it was widely known that Judge

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Speaker 1: Suitor addressed Suitor was going to retire, and the Second

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Speaker 1: Circuit had a case involving a racial preferences. The case

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Speaker 1: involved Frank Ricci, who was a New Haven firefighters. Is

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Speaker 1: a very well known case you probably recall, um, and

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Speaker 1: this is a huge case. And the Second Circuit panel

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Speaker 1: that heard included Judge out of Mayor, and rather than

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Speaker 1: actually engaging the issue, the panel with his very short

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Speaker 1: pecure opinion as an unsigned opinion that basically blew off

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Speaker 1: the issue. And Judge Jobrand has wrote the scathing descent thing,

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Speaker 1: what are you doing? This is such an important issue?

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Speaker 1: How can you treated so casually? And it was widely

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Speaker 1: assumed that Mayor wrote that to make her confirmation easier.

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Speaker 1: And I'm skeptical as argents, I think judges do what

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Speaker 1: they do for other reasons. UM. I I don't like

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Speaker 1: reading that intense into people. UM. And eventually Supreme Court

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Speaker 1: reverse out of my yore uh. And this was a

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Speaker 1: huge issue in her confirmation hearing. So going to Judge Walker,

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Speaker 1: I think he would have handled this case exactly the

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Speaker 1: same if he had never been nominated. I think this

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Speaker 1: is probably what he thinks about the case independent of

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Speaker 1: his nomination. UM. Indeed, the fact that he's a been

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Speaker 1: nominated means he's not auditioning as much he got. He

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Speaker 1: basically has the job unless this opinion alienated people, which

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Speaker 1: could actually backfire. But he didn't need to suck up

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Speaker 1: to anyone to get this nomination. He already has it. UM.

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Speaker 1: So I'm skeptical June of the of the audition point.

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Speaker 1: I don't um after the A, B A, I have

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Speaker 1: an overly critical, overtly critical of their view process. UM.

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Speaker 1: The unqualified rating that they give doesn't always mean what

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Speaker 1: you think it means. I think a lot of case

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Speaker 1: has been it's been given in a unfair fashion. Um.

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Speaker 1: To be Frank, justin, Judge Walker has not had a

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Speaker 1: lot of legal experience, and that might be a ground

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Speaker 1: to knock him is unqualified. But a lot of other

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Speaker 1: people were being unqualified the basis of like their character

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Speaker 1: and people like them or not. These are sort of

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Speaker 1: subjective factors. Is it odd that you take someone who

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Speaker 1: is thirty eight years old, who has been on the

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Speaker 1: bench for about six months and nominate him to d

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Speaker 1: C Circuit Court of Appeals, which is a feeder sort

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Speaker 1: of for the Supreme Court. Isn't that a stretch? Yeah?

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Speaker 1: I mean, look, June, I'll Frank, there was a very

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Speaker 1: long line of people who were waiting for the DC

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Speaker 1: Circuit seat. These are people have been partners at prominent

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Speaker 1: law firms, prominent academics, UM judges and other courts. UM.

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Speaker 1: There were a lot of people who were head of

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Speaker 1: the line. UM, and I think the the obvious answer

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Speaker 1: is miss McConnell wanted his person. McConnell's made no secret

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Speaker 1: about this, UM and Mitch McConnell's cloud. UM. Now, we've

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Speaker 1: had a lot of young judges appointed to the Courts

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Speaker 1: of Appeals with no judicial experience during the Reagan administration,

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Speaker 1: and I think Judge Edith Jones was thirty eight or so,

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Speaker 1: and she's now a prominent circuit judge with she's well

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Speaker 1: known and everyone likes her, but she's very well she

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Speaker 1: was bestly well respected. A lot of people don't like her.

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Speaker 1: I like her, I'm a fan of hers, but but

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Speaker 1: she's very well known. Judge J. Harvey Wilkinson on the

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Speaker 1: fourth Circuit I think it was thirty seven or thirty eight.

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Speaker 1: The other one is Alex Kazinski. That's Internet so well,

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Speaker 1: maybe it's not such a good idea. I don't know.

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Speaker 1: Maybe I think my point back the social climbers who

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Speaker 1: get there so young, maybe aren't. But I think as

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Speaker 1: a general matter, age is not a a permanentis qualifier.

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Speaker 1: I think, more than anything else, Judge Walker got that

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Speaker 1: nomination in part because of Senator McConnell's sway, and he

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Speaker 1: McConnell has a lot of sway. I think in the

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Speaker 1: history there are not many new district court judges who

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Speaker 1: put up although I think Judge sent Tell, if memory,

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Speaker 1: serves as a district judge in North Carolina. Uh and

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Speaker 1: he had been a judge for not a terribly long time,

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Speaker 1: but he had been a district judge at the time,

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Speaker 1: as the called, Senator Helms was very influential, and Senator

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Speaker 1: Helms pushed Reagan to put Sentel in the DC circuit.

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Speaker 1: So there there is, you know, some president called good

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Speaker 1: or bad, but there's some precedent for this move. Majority

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Speaker 1: Leader McConnell tweeted about the decision and praised it, as

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Speaker 1: did did the other Kentucky Senator Ran Paul. But does

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Speaker 1: a decision like this add to the problems of the

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Speaker 1: culture war that seemed to be almost exacerbated during this pandemic. Yeah,

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Speaker 1: I mean, look, I June, you can't stop politicians from politicians.

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Speaker 1: When politicians and see things they like, they praise it.

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Speaker 1: So of course McConnell or Rand Paul sees something like

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Speaker 1: they're gonna they're going to celebrate. I think that's that's unavoidable. Um.

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Speaker 1: I think Judge Walker could have done well to have

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Speaker 1: avoided the sort of toxic culture and these issues in

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Speaker 1: this difficult time by maybe issuing a more moderately worded

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Speaker 1: opinion and perhaps asking to see of Louisville what your

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Speaker 1: plans are before assuing this ruling. I think the entire

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Speaker 1: case could have been to be mooted by the fact

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Speaker 1: that there's really no needs resolve. It is for you.

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Speaker 1: Now ask you about something else while I have you on.

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Speaker 1: The Department of Justice announced a tweet that Attorney General

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Speaker 1: William Barr is getting ready to sue states that limit

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Speaker 1: the ability of parishioners to pray together during the pandemic.

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Speaker 1: I'm wondering what the boundaries are here as far as

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Speaker 1: parishioners being able to get together during this time. I

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Speaker 1: think DJ has actually even moved ahead. There was a

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Speaker 1: case filed in Mississippi, I believe, challenging one of these

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Speaker 1: bands on people meeting in houses of worship. The Department

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Speaker 1: of Justice filed what's called a statement of interest, which

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Speaker 1: is not exactly a lawsuit. It's kind of like an

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Speaker 1: amicus brief, Friends of the Court brief. So d J

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Speaker 1: has gotten involved. Look, I'll be honest, these issues are

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Speaker 1: very tough. Generally, the government under the free Exercise Clause

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Speaker 1: can't single out religion for certain burdens. Stay at home

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Speaker 1: orders aren't really singling out religion. They apply to all institutions.

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Speaker 1: You can't meet more than ten people. But then they're

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Speaker 1: exceptions right where you carve it. All these various exceptions,

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Speaker 1: So why can you have a drive through Wendy's but

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Speaker 1: not a drive through church. Thanks for being on Bloomberg Law. Josh.

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Speaker 1: That's Josh Plackman, a constitutional law professor at the South

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Speaker 1: Texas College 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 Grosso. This is Bloomberg returned to Jack