Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: Federal district courts in thirteen states are already dealing with
Speaker 1: shortages of judges that are considered judicial emergencies. What happens
Speaker 1: after the pandemic when the backlog of cases that have
Speaker 1: been put on hold is added to an already over
Speaker 1: tax system. Joining me is Carl Tobias, a professor at
Speaker 1: the University of Richmond Law School. So, first of all,
Speaker 1: explain what a judicial emergency is. Well, when there's a
Speaker 1: vacancy in a particular court, the administrative officer of the
Speaker 1: U S courts looks at the time that vacancy has
Speaker 1: been open and how many cases each judge on the
Speaker 1: court is carrying, and they have a formula, and I
Speaker 1: believe the cut off on timing is something like eighteen months.
Speaker 1: But the one that's more important, I think for our
Speaker 1: purposes and from any courts in terms of the forty
Speaker 1: four emergencies is the caseload. And for example, in the
Speaker 1: Central District of California in Los Angeles, most of the
Speaker 1: judges are carrying twice the average caseload other judges in
Speaker 1: the ninety three remaining districts around the country, and so
Speaker 1: when you have that kind of caseload, it's just very
Speaker 1: difficult to process all of the cases. And so the
Speaker 1: Administrative Office declares an emergency, and hopefully the Senate prioritizes
Speaker 1: with the White House those emergencies and tries to fill
Speaker 1: them first, but that doesn't always happen. So a judicial
Speaker 1: vacancy is not the same as a judicial emergency. No,
Speaker 1: absolutely not. We now have seventy three district court vacancies
Speaker 1: at the trial level in the federal system, but forty
Speaker 1: four of these are emergencies, given they're huge caseloads and
Speaker 1: sometimes the long periods they've been open. Now, let's just
Speaker 1: talk about some of the districts that really seem to
Speaker 1: be suffering, like the U. S. District Court for the
Speaker 1: Western District of Washington, five of seven judge ships are vacant.
Speaker 1: How long has that been going on and how do
Speaker 1: they even deal with that on a normal day. Well,
Speaker 1: it's extremely difficult. And of course that was the center
Speaker 1: of where the virus started at least in the US,
Speaker 1: and a number of those they can have been more
Speaker 1: than a year, and some I think up to two
Speaker 1: or three years, and so that really makes it pressing.
Speaker 1: They do have senior judges and they are pitching in
Speaker 1: and have for a long time, but by definition they
Speaker 1: are older than active judges because you have to be
Speaker 1: sixty five and have fifteen years of service and of ors,
Speaker 1: that might put them in a vulnerable population. Uh. And
Speaker 1: they've been working very hard for years now, and so
Speaker 1: Judge Martinez, the chief Judge, has been very concerned, and
Speaker 1: so they are talking about the possibility of bringing in
Speaker 1: judges from other districts, and of course that happens fairly often.
Speaker 1: Is is a practice that often is used in the
Speaker 1: federal judiciary to move resources around. For example, a judge
Speaker 1: in a less busy district, I believe the Eastern District
Speaker 1: of Washington, mostly in Spokane. Some of the judges they're
Speaker 1: are willing to come over and help out in Seattle.
Speaker 1: And that's been an effective mechanism to use. And of
Speaker 1: course now most of the courts are essentially shuttered in
Speaker 1: many districts, especially for civil cases, but also some courts
Speaker 1: Central District, California, Eastern District have sought exemptions from the
Speaker 1: Speedy Trial Act on the criminal law side. And so
Speaker 1: when and the courts do reopened, then there will be
Speaker 1: this huge pen up demand, at least on the civil
Speaker 1: side and probably on the criminal side. And so for
Speaker 1: the Western District of Washington, those issues are going to
Speaker 1: loom even larger. And the chief Judge, Martinez said he
Speaker 1: was concerned that there wouldn't be any new judges until
Speaker 1: one So it's going to be very difficult in that
Speaker 1: court to do very much, especially once the court is
Speaker 1: open and trying to move the civil and criminal cases. Also,
Speaker 1: I wonder if the judges that they were going to
Speaker 1: call on are going to be backed up with their
Speaker 1: own cases once the courts reopened. Well, yes, and I
Speaker 1: think that's true. It will depend on the court. There
Speaker 1: are ninety four district courts around the country, and some
Speaker 1: of them have had less restrictions imposed, though I doubt
Speaker 1: during many have no restrictions. The administrty of offs of
Speaker 1: the U. S Courts, the administrative arm of the federal courts,
Speaker 1: has probably pretty good data on what the case loads
Speaker 1: look like around the country and which judges are laboring
Speaker 1: under huge case loads and ones who have lighter case loads.
Speaker 1: And hopefully there could be some moving of judges around
Speaker 1: from the district sit are not so pressed as places
Speaker 1: like Washington or Central District of California. We've been talking
Speaker 1: about this as an emergency for quite some time. And
Speaker 1: what's interesting is the two active judges in that district
Speaker 1: are eligible for retirement themselves at this point. But why
Speaker 1: no judges even in the pipeline there, Well, that's a
Speaker 1: good question. It's not clear, but the White House has
Speaker 1: been more solicitors of feeling vacancies in the red states
Speaker 1: than the blue states. For example, thirty five of the
Speaker 1: forty four emergency vacancies are in Blue states like washing Ington,
Speaker 1: New York, Illinois, and California and New Jersey is probably
Speaker 1: the worst case scenario where there are six vacancies all
Speaker 1: emergencies out of seventeen judge ships, and no nominee from
Speaker 1: the Trump administration to date. Let's turn to the Central
Speaker 1: District of California. The chief judge there said they're not
Speaker 1: expecting any judges until late or early two and their
Speaker 1: case load is over a thousand weighted cases. That's more
Speaker 1: than double the national average. What is a weighted case
Speaker 1: that looks at the type of case it is. In
Speaker 1: other words, some cases are easier and simpler to resolve
Speaker 1: than others. And so if you have a very complex case,
Speaker 1: that gets a very high waiting and so that's the
Speaker 1: way they try to balance out the case loads. And UM,
Speaker 1: as you suggest, California Central District has huge vacancies. There
Speaker 1: are some nominees for their ten emergencies in Central District
Speaker 1: out of twenty seven, and so they're really in an
Speaker 1: extreme situation. However, their nominees for eight of those positions
Speaker 1: and three are on the floor awaiting UH confirmation votes.
Speaker 1: So I'm cautiously optimistic that those three will be confirmed
Speaker 1: UH and could well be confirmed whenever the Senate comes back,
Speaker 1: And so there's some hope that at least three of
Speaker 1: them would be filled. And two of those are presently
Speaker 1: state judges at the super court level in I think
Speaker 1: Los Angeles County and so would be experienced judges and
Speaker 1: probably ready to take on these huge case loads. But
Speaker 1: for the others it will be more difficult. Of course,
Speaker 1: though some UM could have hearings and be confirmed. This year,
Speaker 1: the average judge will handle about five weighted cases. How
Speaker 1: do they even handle that many? That seems like an
Speaker 1: enormous number of balls in the air, so to speak. Well,
Speaker 1: that's true, but they have many mechanisms and some help
Speaker 1: from magistrate judges and their clerks and court personnel. And
Speaker 1: don't forget, nine of civil and criminal cases settle. So
Speaker 1: it's not as if you're going to try all those cases.
Speaker 1: A tiny percentage are tried. Uh, And so that's the
Speaker 1: way the system tries to cope is to encourage settlements.
Speaker 1: As far as the California judicial emergencies, a spokesman for
Speaker 1: Senate Majority Leader Mitch McConnell blamed the crisis on the
Speaker 1: California Democratic senators Diane Feinstein and Kamala Harris not allowing
Speaker 1: quote highly qualified nominees to move forward. Harris's spokeswoman told
Speaker 1: Bloomberg that she's worked diligently to advance more qualified nominees.
Speaker 1: What's happening there the push and pull here, Well, you
Speaker 1: have to go back to the beginning of the Trump administration,
Speaker 1: and as we've talked about it before, the administration wanted
Speaker 1: to concentrate on filling all of the appellate court vacancies,
Speaker 1: and there were a number in California they have now filled,
Speaker 1: I believe for ap pellet vacancies, all with the President's
Speaker 1: choices all of whom were opposed by the to California senators,
Speaker 1: but there seemed to be some agreement on the district
Speaker 1: nominees for what are now seventeen vacancies statewide. There are
Speaker 1: nominees for fourteen of those, and I don't have any
Speaker 1: sense that either senators opposed to any of those nominees.
Speaker 1: In fact, they returned their blue slips on all of them,
Speaker 1: and some, as we said, have hearings and are before
Speaker 1: on the Senate floor. So it's a little mystifying exactly
Speaker 1: what McConnell's spokesperson is saying. There seems to be substantial
Speaker 1: cooperation from the senators. For those who haven't been listening
Speaker 1: to our conversations about these judges, explain the blue slip
Speaker 1: and how it's still being used for district court nominees. Yes,
Speaker 1: the Republicans essentially eliminated for the appeals courts, which enabled
Speaker 1: them to confirm record numbers of people and leave only
Speaker 1: one pellet vacancy nationwide out of seventy nine now, but
Speaker 1: Chairman Graham of the Senate Judiciary Committee has said he
Speaker 1: would honor them for the district courts. So both Home
Speaker 1: state senators received blue slips from the chair when there's
Speaker 1: a nomination in their state, and then they may choose
Speaker 1: to return that, which signals that they agree the person
Speaker 1: should have a hearing and go through the process, or
Speaker 1: the senators can retain it and that would be the
Speaker 1: end of the nomination. And so the senators have returned
Speaker 1: to all of those blue slips for the nominees in California.
Speaker 1: Are some senators push here about this. Let's talk about
Speaker 1: blue states because that's where most of the emergencies are
Speaker 1: are some of the senators push here about this, and
Speaker 1: that's why they're moving a little bit faster than let's say, California.
Speaker 1: We're New Jersey. Well they are, But some of it
Speaker 1: comes down to the relationship between the White House Council,
Speaker 1: who is really in charge of what happens in the
Speaker 1: White House on nominations UH and the home state senators.
Speaker 1: For example, Senator Durban from Illinois has been very aggressive
Speaker 1: and very effective in working closely with the first White
Speaker 1: House Council and the present White House Council to secure
Speaker 1: nominations in a timely way and move them through the Senate.
Speaker 1: He's very high in the leadership on the Democratic side
Speaker 1: and he's a longtime member of the committee, and he's
Speaker 1: been extremely successful, as has Senator Schumer Um by way
Speaker 1: of filling vacancies in New York and having nominees for
Speaker 1: present vacancies, though there's some vacancy still there, and so
Speaker 1: UH and Senator of Einstein is ranking member on Judiciary
Speaker 1: has enjoyed some success with district nominees from California, though
Speaker 1: they haven't been confirmed yet, and so it really depends
Speaker 1: on Um, the senators from the Home States working closely
Speaker 1: and cooperatively with UH the White House, but there's plenty
Speaker 1: of blame to go around, and often the White House
Speaker 1: has not reached out or been as collegial as it
Speaker 1: might be in working with the Home States senators. You
Speaker 1: mentioned before that California asking now for them to suspend
Speaker 1: the Speedy Trial Eastern District of California, the chief judge
Speaker 1: there as well as Chief Judge Phillips in the Central District,
Speaker 1: have asked the Nice Circuit Judicial Council to suspend the
Speaker 1: Speedy Trial Act because of the crunch of case loads.
Speaker 1: Will there be any problems with with attorneys for those
Speaker 1: defendants saying he or she has a constitutional right to
Speaker 1: have a speedy trial. Well, yes, and that would be
Speaker 1: the argument that could well be made by individual council
Speaker 1: for specific defendants. And that's why they have these exceptions
Speaker 1: in the Speedy Trial Act, which act as a sort
Speaker 1: of safety valve. But by and large they're supposed to
Speaker 1: be speedy trials. That's Carl Tobias, a professor at the
Speaker 1: University of Richmond Law School. You're listening to Bloomberg Law
Speaker 1: with June Grazzo from Bloomberg Radio. Drive through Easter Services
Speaker 1: took place in Kentucky after a new federal judge nominated
Speaker 1: to a high profile appeals court found that restrictions placed
Speaker 1: on those services were unconstitutional. But it wasn't the decision
Speaker 1: itself that attracted attention. It was the way Judge Justin
Speaker 1: Walker wrote that opinion. He begins by sighting St. Paul's
Speaker 1: Gospels rather than case law, and delves into the historical
Speaker 1: plight of Christians before getting to the case at hand.
Speaker 1: About page seven more of a sermon than a legal decision,
Speaker 1: joining me, as Josh Blackman, a constitutional law professor at
Speaker 1: the South Texas College of Law, tell us about the
Speaker 1: decision itself, was it in line with legal authority? Was
Speaker 1: he correct When you look at this decision, I think
Speaker 1: Cats considered the timeline. The timeline is very important here.
Speaker 1: You have eastern Sunday, you have these emergency papers filed
Speaker 1: on Thursday and into Friday, and then you are ruling
Speaker 1: on Saturday. My objection to this ruling w so much
Speaker 1: the outcome. I think he probably got the law right.
Speaker 1: My objection to this ruling was the fact that it
Speaker 1: even needs to happen. M Had the court held a
Speaker 1: short twenty minute status conference, he could have gotten the
Speaker 1: mayor's position, and I think the mayor would have said
Speaker 1: that we are not going to take any action against
Speaker 1: the churchgoers. At that point, the motion for a temporary
Speaker 1: straining order against the mayor becomes moot. Perhaps there will
Speaker 1: be some relief against the governor or the state police,
Speaker 1: but would not be against the City of Louisville. So
Speaker 1: I think the decision was probably right on the merits.
Speaker 1: But it isn't clear to me that this decision needs
Speaker 1: to happen, that you need to issue an injunction against
Speaker 1: the mayor because he didn't plan to take action in
Speaker 1: the first place. What about the way he wrote the opinion.
Speaker 1: He begins by citing St. Paul's Gospel. According to St. Paul,
Speaker 1: the first Pilgrim was able. He talks about the passion
Speaker 1: of Christ, the plight of Christians. What was your reaction
Speaker 1: into just the way this sounded more like a sermon
Speaker 1: than a legal opinion. It sounded like a sermon. Um.
Speaker 1: I I was. I was concurprised by the tone. UM.
Speaker 1: I also think that parts of it were a little
Speaker 1: bit political. Um. He was talking about history of a
Speaker 1: religious discrimination and he mentioned that KKK, which has a
Speaker 1: lot of religious scrimination. And he noted that Justice Hugo
Speaker 1: Black and the Democratic Majority leader Robert Burger clans members. Um.
Speaker 1: That's fairly well known in legal circles. But who cares, right,
Speaker 1: it's not relevant. I mean, I suppose it's relevant show
Speaker 1: that clans members reach high ranked society, but it's taken
Speaker 1: on a political tone in modern day usage. Um. I
Speaker 1: think the opinion could have been a lot shorter to
Speaker 1: have gotten the point quicker. And I didn't think a
Speaker 1: lot of the rhetoric was really helpful to the analysis.
Speaker 1: But was it appropriate even to be talking about the
Speaker 1: passion of Christ and ending with Grayer almost saying Christ
Speaker 1: being there for us and have faith in that. Is
Speaker 1: that even appropriate? I don't think I've ever seen an
Speaker 1: opinion quite like it. Um. Perhaps the judge thought it
Speaker 1: was appropriate given the subject matter Easter, but I have
Speaker 1: not seen something like it. I I it was a
Speaker 1: new one for me. So now we come to the
Speaker 1: point of why. So this is a judge who has
Speaker 1: been a federal judge for about six months after getting
Speaker 1: an unqualified rating from the American Bar Association, but President
Speaker 1: Trump has nominated him to the d C. Circuit Court
Speaker 1: of Appeals, considered the second highest court in the land.
Speaker 1: Did he look at this as almost an audition for
Speaker 1: that spot or a higher spot? Um? So a few
Speaker 1: points June. The audition criticism is not new. UM. We've
Speaker 1: seen that in the past. And I'll give you a
Speaker 1: couple examples. UM. When Judge Roberts was on, was in
Speaker 1: the consideration to be to fill the rank with seat
Speaker 1: back in or actually with your Connor seat back. In
Speaker 1: two thousand five, UM, Judge Roberts issued a decision on
Speaker 1: a Guantanmo case that was very much pro Bush administration, UM,
Speaker 1: and it helped the Bush administration on an important detention issue. UM.
Speaker 1: A lot of people said that Roberts wrote that opinion
Speaker 1: as an audition tape for the Supreme Court and he
Speaker 1: was actually picked eventually. I don't think so. I think
Speaker 1: Roberts wrote what he actually thinks and would have written
Speaker 1: in any circumstance. Um. There was another audition issue involving
Speaker 1: Judge so to Mayor when she was in the Second
Speaker 1: Circuit time. This is in two thousand I guess the
Speaker 1: nine or so. UM. She was on the shortlist for
Speaker 1: the Supreme Court. And it was widely known that Judge
Speaker 1: Suitor addressed Suitor was going to retire, and the Second
Speaker 1: Circuit had a case involving a racial preferences. The case
Speaker 1: involved Frank Ricci, who was a New Haven firefighters. Is
Speaker 1: a very well known case you probably recall, um, and
Speaker 1: this is a huge case. And the Second Circuit panel
Speaker 1: that heard included Judge out of Mayor, and rather than
Speaker 1: actually engaging the issue, the panel with his very short
Speaker 1: pecure opinion as an unsigned opinion that basically blew off
Speaker 1: the issue. And Judge Jobrand has wrote the scathing descent thing,
Speaker 1: what are you doing? This is such an important issue?
Speaker 1: How can you treated so casually? And it was widely
Speaker 1: assumed that Mayor wrote that to make her confirmation easier.
Speaker 1: And I'm skeptical as argents, I think judges do what
Speaker 1: they do for other reasons. UM. I I don't like
Speaker 1: reading that intense into people. UM. And eventually Supreme Court
Speaker 1: reverse out of my yore uh. And this was a
Speaker 1: huge issue in her confirmation hearing. So going to Judge Walker,
Speaker 1: I think he would have handled this case exactly the
Speaker 1: same if he had never been nominated. I think this
Speaker 1: is probably what he thinks about the case independent of
Speaker 1: his nomination. UM. Indeed, the fact that he's a been
Speaker 1: nominated means he's not auditioning as much he got. He
Speaker 1: basically has the job unless this opinion alienated people, which
Speaker 1: could actually backfire. But he didn't need to suck up
Speaker 1: to anyone to get this nomination. He already has it. UM.
Speaker 1: So I'm skeptical June of the of the audition point.
Speaker 1: I don't um after the A, B A, I have
Speaker 1: an overly critical, overtly critical of their view process. UM.
Speaker 1: The unqualified rating that they give doesn't always mean what
Speaker 1: you think it means. I think a lot of case
Speaker 1: has been it's been given in a unfair fashion. Um.
Speaker 1: To be Frank, justin, Judge Walker has not had a
Speaker 1: lot of legal experience, and that might be a ground
Speaker 1: to knock him is unqualified. But a lot of other
Speaker 1: people were being unqualified the basis of like their character
Speaker 1: and people like them or not. These are sort of
Speaker 1: subjective factors. Is it odd that you take someone who
Speaker 1: is thirty eight years old, who has been on the
Speaker 1: bench for about six months and nominate him to d
Speaker 1: C Circuit Court of Appeals, which is a feeder sort
Speaker 1: of for the Supreme Court. Isn't that a stretch? Yeah?
Speaker 1: I mean, look, June, I'll Frank, there was a very
Speaker 1: long line of people who were waiting for the DC
Speaker 1: Circuit seat. These are people have been partners at prominent
Speaker 1: law firms, prominent academics, UM judges and other courts. UM.
Speaker 1: There were a lot of people who were head of
Speaker 1: the line. UM, and I think the the obvious answer
Speaker 1: is miss McConnell wanted his person. McConnell's made no secret
Speaker 1: about this, UM and Mitch McConnell's cloud. UM. Now, we've
Speaker 1: had a lot of young judges appointed to the Courts
Speaker 1: of Appeals with no judicial experience during the Reagan administration,
Speaker 1: and I think Judge Edith Jones was thirty eight or so,
Speaker 1: and she's now a prominent circuit judge with she's well
Speaker 1: known and everyone likes her, but she's very well she
Speaker 1: was bestly well respected. A lot of people don't like her.
Speaker 1: I like her, I'm a fan of hers, but but
Speaker 1: she's very well known. Judge J. Harvey Wilkinson on the
Speaker 1: fourth Circuit I think it was thirty seven or thirty eight.
Speaker 1: The other one is Alex Kazinski. That's Internet so well,
Speaker 1: maybe it's not such a good idea. I don't know.
Speaker 1: Maybe I think my point back the social climbers who
Speaker 1: get there so young, maybe aren't. But I think as
Speaker 1: a general matter, age is not a a permanentis qualifier.
Speaker 1: I think, more than anything else, Judge Walker got that
Speaker 1: nomination in part because of Senator McConnell's sway, and he
Speaker 1: McConnell has a lot of sway. I think in the
Speaker 1: history there are not many new district court judges who
Speaker 1: put up although I think Judge sent Tell, if memory,
Speaker 1: serves as a district judge in North Carolina. Uh and
Speaker 1: he had been a judge for not a terribly long time,
Speaker 1: but he had been a district judge at the time,
Speaker 1: as the called, Senator Helms was very influential, and Senator
Speaker 1: Helms pushed Reagan to put Sentel in the DC circuit.
Speaker 1: So there there is, you know, some president called good
Speaker 1: or bad, but there's some precedent for this move. Majority
Speaker 1: Leader McConnell tweeted about the decision and praised it, as
Speaker 1: did did the other Kentucky Senator Ran Paul. But does
Speaker 1: a decision like this add to the problems of the
Speaker 1: culture war that seemed to be almost exacerbated during this pandemic. Yeah,
Speaker 1: I mean, look, I June, you can't stop politicians from politicians.
Speaker 1: When politicians and see things they like, they praise it.
Speaker 1: So of course McConnell or Rand Paul sees something like
Speaker 1: they're gonna they're going to celebrate. I think that's that's unavoidable. Um.
Speaker 1: I think Judge Walker could have done well to have
Speaker 1: avoided the sort of toxic culture and these issues in
Speaker 1: this difficult time by maybe issuing a more moderately worded
Speaker 1: opinion and perhaps asking to see of Louisville what your
Speaker 1: plans are before assuing this ruling. I think the entire
Speaker 1: case could have been to be mooted by the fact
Speaker 1: that there's really no needs resolve. It is for you.
Speaker 1: Now ask you about something else while I have you on.
Speaker 1: The Department of Justice announced a tweet that Attorney General
Speaker 1: William Barr is getting ready to sue states that limit
Speaker 1: the ability of parishioners to pray together during the pandemic.
Speaker 1: I'm wondering what the boundaries are here as far as
Speaker 1: parishioners being able to get together during this time. I
Speaker 1: think DJ has actually even moved ahead. There was a
Speaker 1: case filed in Mississippi, I believe, challenging one of these
Speaker 1: bands on people meeting in houses of worship. The Department
Speaker 1: of Justice filed what's called a statement of interest, which
Speaker 1: is not exactly a lawsuit. It's kind of like an
Speaker 1: amicus brief, Friends of the Court brief. So d J
Speaker 1: has gotten involved. Look, I'll be honest, these issues are
Speaker 1: very tough. Generally, the government under the free Exercise Clause
Speaker 1: can't single out religion for certain burdens. Stay at home
Speaker 1: orders aren't really singling out religion. They apply to all institutions.
Speaker 1: You can't meet more than ten people. But then they're
Speaker 1: exceptions right where you carve it. All these various exceptions,
Speaker 1: So why can you have a drive through Wendy's but
Speaker 1: not a drive through church. Thanks for being on Bloomberg Law. Josh.
Speaker 1: That's Josh Plackman, a constitutional law professor at the South
Speaker 1: Texas College 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 Grosso. This is Bloomberg returned to Jack