WEBVTT - Federal Trial Courts Face Post-Pandemic Crisis

0:00:00.480 --> 0:00:05.680
<v Speaker 1>You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

0:00:06.120 --> 0:00:09.639
<v Speaker 1>Federal district courts in thirteen states are already dealing with

0:00:09.680 --> 0:00:14.120
<v Speaker 1>shortages of judges that are considered judicial emergencies. What happens

0:00:14.240 --> 0:00:17.159
<v Speaker 1>after the pandemic when the backlog of cases that have

0:00:17.200 --> 0:00:20.319
<v Speaker 1>been put on hold is added to an already over

0:00:20.440 --> 0:00:23.960
<v Speaker 1>tax system. Joining me is Carl Tobias, a professor at

0:00:23.960 --> 0:00:27.440
<v Speaker 1>the University of Richmond Law School. So, first of all,

0:00:27.760 --> 0:00:32.600
<v Speaker 1>explain what a judicial emergency is. Well, when there's a

0:00:32.680 --> 0:00:35.559
<v Speaker 1>vacancy in a particular court, the administrative officer of the

0:00:35.640 --> 0:00:40.360
<v Speaker 1>U S courts looks at the time that vacancy has

0:00:40.400 --> 0:00:45.199
<v Speaker 1>been open and how many cases each judge on the

0:00:45.240 --> 0:00:50.680
<v Speaker 1>court is carrying, and they have a formula, and I

0:00:50.720 --> 0:00:55.200
<v Speaker 1>believe the cut off on timing is something like eighteen months.

0:00:55.440 --> 0:00:58.279
<v Speaker 1>But the one that's more important, I think for our

0:00:58.320 --> 0:01:01.840
<v Speaker 1>purposes and from any courts in terms of the forty

0:01:01.840 --> 0:01:08.600
<v Speaker 1>four emergencies is the caseload. And for example, in the

0:01:08.640 --> 0:01:12.600
<v Speaker 1>Central District of California in Los Angeles, most of the

0:01:12.680 --> 0:01:17.520
<v Speaker 1>judges are carrying twice the average caseload other judges in

0:01:17.600 --> 0:01:21.320
<v Speaker 1>the ninety three remaining districts around the country, and so

0:01:21.360 --> 0:01:24.399
<v Speaker 1>when you have that kind of caseload, it's just very

0:01:24.440 --> 0:01:29.240
<v Speaker 1>difficult to process all of the cases. And so the

0:01:29.280 --> 0:01:35.720
<v Speaker 1>Administrative Office declares an emergency, and hopefully the Senate prioritizes

0:01:36.400 --> 0:01:39.839
<v Speaker 1>with the White House those emergencies and tries to fill

0:01:39.920 --> 0:01:45.319
<v Speaker 1>them first, but that doesn't always happen. So a judicial

0:01:45.400 --> 0:01:49.760
<v Speaker 1>vacancy is not the same as a judicial emergency. No,

0:01:49.920 --> 0:01:55.600
<v Speaker 1>absolutely not. We now have seventy three district court vacancies

0:01:55.680 --> 0:01:58.960
<v Speaker 1>at the trial level in the federal system, but forty

0:01:59.040 --> 0:02:05.120
<v Speaker 1>four of these are emergencies, given they're huge caseloads and

0:02:05.200 --> 0:02:09.680
<v Speaker 1>sometimes the long periods they've been open. Now, let's just

0:02:09.760 --> 0:02:13.520
<v Speaker 1>talk about some of the districts that really seem to

0:02:13.560 --> 0:02:16.400
<v Speaker 1>be suffering, like the U. S. District Court for the

0:02:16.480 --> 0:02:21.880
<v Speaker 1>Western District of Washington, five of seven judge ships are vacant.

0:02:22.240 --> 0:02:23.919
<v Speaker 1>How long has that been going on and how do

0:02:24.000 --> 0:02:26.760
<v Speaker 1>they even deal with that on a normal day. Well,

0:02:26.800 --> 0:02:30.880
<v Speaker 1>it's extremely difficult. And of course that was the center

0:02:31.080 --> 0:02:35.280
<v Speaker 1>of where the virus started at least in the US,

0:02:35.320 --> 0:02:37.880
<v Speaker 1>and a number of those they can have been more

0:02:37.919 --> 0:02:39.760
<v Speaker 1>than a year, and some I think up to two

0:02:39.880 --> 0:02:43.720
<v Speaker 1>or three years, and so that really makes it pressing.

0:02:43.800 --> 0:02:47.400
<v Speaker 1>They do have senior judges and they are pitching in

0:02:47.480 --> 0:02:51.880
<v Speaker 1>and have for a long time, but by definition they

0:02:52.040 --> 0:02:55.360
<v Speaker 1>are older than active judges because you have to be

0:02:55.400 --> 0:03:00.200
<v Speaker 1>sixty five and have fifteen years of service and of ors,

0:03:00.320 --> 0:03:03.640
<v Speaker 1>that might put them in a vulnerable population. Uh. And

0:03:03.680 --> 0:03:07.640
<v Speaker 1>they've been working very hard for years now, and so

0:03:08.280 --> 0:03:12.160
<v Speaker 1>Judge Martinez, the chief Judge, has been very concerned, and

0:03:12.240 --> 0:03:15.960
<v Speaker 1>so they are talking about the possibility of bringing in

0:03:16.040 --> 0:03:19.640
<v Speaker 1>judges from other districts, and of course that happens fairly often.

0:03:19.800 --> 0:03:22.920
<v Speaker 1>Is is a practice that often is used in the

0:03:22.960 --> 0:03:27.440
<v Speaker 1>federal judiciary to move resources around. For example, a judge

0:03:27.440 --> 0:03:30.200
<v Speaker 1>in a less busy district, I believe the Eastern District

0:03:30.200 --> 0:03:34.040
<v Speaker 1>of Washington, mostly in Spokane. Some of the judges they're

0:03:34.080 --> 0:03:36.640
<v Speaker 1>are willing to come over and help out in Seattle.

0:03:37.200 --> 0:03:41.520
<v Speaker 1>And that's been an effective mechanism to use. And of

0:03:41.560 --> 0:03:46.120
<v Speaker 1>course now most of the courts are essentially shuttered in

0:03:46.200 --> 0:03:51.640
<v Speaker 1>many districts, especially for civil cases, but also some courts

0:03:51.720 --> 0:03:55.280
<v Speaker 1>Central District, California, Eastern District have sought exemptions from the

0:03:55.320 --> 0:03:59.320
<v Speaker 1>Speedy Trial Act on the criminal law side. And so

0:03:59.720 --> 0:04:03.480
<v Speaker 1>when and the courts do reopened, then there will be

0:04:03.560 --> 0:04:06.000
<v Speaker 1>this huge pen up demand, at least on the civil

0:04:06.000 --> 0:04:08.760
<v Speaker 1>side and probably on the criminal side. And so for

0:04:08.920 --> 0:04:13.120
<v Speaker 1>the Western District of Washington, those issues are going to

0:04:13.280 --> 0:04:17.200
<v Speaker 1>loom even larger. And the chief Judge, Martinez said he

0:04:17.240 --> 0:04:20.039
<v Speaker 1>was concerned that there wouldn't be any new judges until

0:04:20.960 --> 0:04:24.560
<v Speaker 1>one So it's going to be very difficult in that

0:04:24.720 --> 0:04:29.320
<v Speaker 1>court to do very much, especially once the court is

0:04:29.400 --> 0:04:33.920
<v Speaker 1>open and trying to move the civil and criminal cases. Also,

0:04:33.960 --> 0:04:36.440
<v Speaker 1>I wonder if the judges that they were going to

0:04:36.560 --> 0:04:40.320
<v Speaker 1>call on are going to be backed up with their

0:04:40.320 --> 0:04:44.560
<v Speaker 1>own cases once the courts reopened. Well, yes, and I

0:04:44.600 --> 0:04:46.920
<v Speaker 1>think that's true. It will depend on the court. There

0:04:46.960 --> 0:04:50.680
<v Speaker 1>are ninety four district courts around the country, and some

0:04:50.800 --> 0:04:55.040
<v Speaker 1>of them have had less restrictions imposed, though I doubt

0:04:55.120 --> 0:04:58.960
<v Speaker 1>during many have no restrictions. The administrty of offs of

0:04:58.960 --> 0:05:02.120
<v Speaker 1>the U. S Courts, the administrative arm of the federal courts,

0:05:02.279 --> 0:05:05.679
<v Speaker 1>has probably pretty good data on what the case loads

0:05:05.720 --> 0:05:10.279
<v Speaker 1>look like around the country and which judges are laboring

0:05:10.360 --> 0:05:15.120
<v Speaker 1>under huge case loads and ones who have lighter case loads.

0:05:15.240 --> 0:05:19.360
<v Speaker 1>And hopefully there could be some moving of judges around

0:05:19.680 --> 0:05:22.960
<v Speaker 1>from the district sit are not so pressed as places

0:05:23.000 --> 0:05:27.520
<v Speaker 1>like Washington or Central District of California. We've been talking

0:05:27.520 --> 0:05:30.880
<v Speaker 1>about this as an emergency for quite some time. And

0:05:30.880 --> 0:05:34.680
<v Speaker 1>what's interesting is the two active judges in that district

0:05:34.839 --> 0:05:38.600
<v Speaker 1>are eligible for retirement themselves at this point. But why

0:05:38.760 --> 0:05:42.520
<v Speaker 1>no judges even in the pipeline there, Well, that's a

0:05:42.520 --> 0:05:46.880
<v Speaker 1>good question. It's not clear, but the White House has

0:05:47.040 --> 0:05:52.000
<v Speaker 1>been more solicitors of feeling vacancies in the red states

0:05:52.040 --> 0:05:55.000
<v Speaker 1>than the blue states. For example, thirty five of the

0:05:55.120 --> 0:06:00.320
<v Speaker 1>forty four emergency vacancies are in Blue states like washing Ington,

0:06:00.360 --> 0:06:05.839
<v Speaker 1>New York, Illinois, and California and New Jersey is probably

0:06:05.880 --> 0:06:10.360
<v Speaker 1>the worst case scenario where there are six vacancies all

0:06:10.480 --> 0:06:14.479
<v Speaker 1>emergencies out of seventeen judge ships, and no nominee from

0:06:14.720 --> 0:06:18.599
<v Speaker 1>the Trump administration to date. Let's turn to the Central

0:06:18.720 --> 0:06:22.560
<v Speaker 1>District of California. The chief judge there said they're not

0:06:22.640 --> 0:06:28.520
<v Speaker 1>expecting any judges until late or early two and their

0:06:28.640 --> 0:06:33.400
<v Speaker 1>case load is over a thousand weighted cases. That's more

0:06:33.440 --> 0:06:36.039
<v Speaker 1>than double the national average. What is a weighted case

0:06:36.600 --> 0:06:39.160
<v Speaker 1>that looks at the type of case it is. In

0:06:39.240 --> 0:06:43.640
<v Speaker 1>other words, some cases are easier and simpler to resolve

0:06:44.120 --> 0:06:46.800
<v Speaker 1>than others. And so if you have a very complex case,

0:06:46.839 --> 0:06:50.320
<v Speaker 1>that gets a very high waiting and so that's the

0:06:50.320 --> 0:06:55.200
<v Speaker 1>way they try to balance out the case loads. And UM,

0:06:55.240 --> 0:07:00.520
<v Speaker 1>as you suggest, California Central District has huge vacancies. There

0:07:00.560 --> 0:07:05.480
<v Speaker 1>are some nominees for their ten emergencies in Central District

0:07:05.480 --> 0:07:08.560
<v Speaker 1>out of twenty seven, and so they're really in an

0:07:08.560 --> 0:07:14.200
<v Speaker 1>extreme situation. However, their nominees for eight of those positions

0:07:14.240 --> 0:07:18.280
<v Speaker 1>and three are on the floor awaiting UH confirmation votes.

0:07:18.520 --> 0:07:23.400
<v Speaker 1>So I'm cautiously optimistic that those three will be confirmed

0:07:24.040 --> 0:07:26.760
<v Speaker 1>UH and could well be confirmed whenever the Senate comes back,

0:07:27.280 --> 0:07:31.960
<v Speaker 1>And so there's some hope that at least three of

0:07:32.000 --> 0:07:35.840
<v Speaker 1>them would be filled. And two of those are presently

0:07:36.600 --> 0:07:40.640
<v Speaker 1>state judges at the super court level in I think

0:07:40.720 --> 0:07:44.560
<v Speaker 1>Los Angeles County and so would be experienced judges and

0:07:44.680 --> 0:07:49.680
<v Speaker 1>probably ready to take on these huge case loads. But

0:07:49.880 --> 0:07:52.200
<v Speaker 1>for the others it will be more difficult. Of course,

0:07:52.280 --> 0:07:55.920
<v Speaker 1>though some UM could have hearings and be confirmed. This year,

0:07:56.440 --> 0:08:00.960
<v Speaker 1>the average judge will handle about five weighted cases. How

0:08:00.960 --> 0:08:03.320
<v Speaker 1>do they even handle that many? That seems like an

0:08:03.480 --> 0:08:07.640
<v Speaker 1>enormous number of balls in the air, so to speak. Well,

0:08:07.640 --> 0:08:11.239
<v Speaker 1>that's true, but they have many mechanisms and some help

0:08:11.320 --> 0:08:15.720
<v Speaker 1>from magistrate judges and their clerks and court personnel. And

0:08:15.760 --> 0:08:22.880
<v Speaker 1>don't forget, nine of civil and criminal cases settle. So

0:08:23.280 --> 0:08:25.760
<v Speaker 1>it's not as if you're going to try all those cases.

0:08:25.800 --> 0:08:30.400
<v Speaker 1>A tiny percentage are tried. Uh, And so that's the

0:08:30.440 --> 0:08:35.280
<v Speaker 1>way the system tries to cope is to encourage settlements.

0:08:35.960 --> 0:08:39.520
<v Speaker 1>As far as the California judicial emergencies, a spokesman for

0:08:40.120 --> 0:08:43.480
<v Speaker 1>Senate Majority Leader Mitch McConnell blamed the crisis on the

0:08:43.520 --> 0:08:49.720
<v Speaker 1>California Democratic senators Diane Feinstein and Kamala Harris not allowing

0:08:49.840 --> 0:08:55.760
<v Speaker 1>quote highly qualified nominees to move forward. Harris's spokeswoman told

0:08:56.000 --> 0:09:01.199
<v Speaker 1>Bloomberg that she's worked diligently to advance more qualified nominees.

0:09:01.559 --> 0:09:05.600
<v Speaker 1>What's happening there the push and pull here, Well, you

0:09:05.679 --> 0:09:08.439
<v Speaker 1>have to go back to the beginning of the Trump administration,

0:09:09.320 --> 0:09:14.839
<v Speaker 1>and as we've talked about it before, the administration wanted

0:09:14.880 --> 0:09:18.559
<v Speaker 1>to concentrate on filling all of the appellate court vacancies,

0:09:19.000 --> 0:09:23.800
<v Speaker 1>and there were a number in California they have now filled,

0:09:23.840 --> 0:09:27.840
<v Speaker 1>I believe for ap pellet vacancies, all with the President's

0:09:27.920 --> 0:09:32.840
<v Speaker 1>choices all of whom were opposed by the to California senators,

0:09:33.120 --> 0:09:36.720
<v Speaker 1>but there seemed to be some agreement on the district

0:09:37.120 --> 0:09:42.559
<v Speaker 1>nominees for what are now seventeen vacancies statewide. There are

0:09:42.640 --> 0:09:46.680
<v Speaker 1>nominees for fourteen of those, and I don't have any

0:09:46.760 --> 0:09:51.760
<v Speaker 1>sense that either senators opposed to any of those nominees.

0:09:51.800 --> 0:09:54.800
<v Speaker 1>In fact, they returned their blue slips on all of them,

0:09:54.880 --> 0:09:57.840
<v Speaker 1>and some, as we said, have hearings and are before

0:09:58.720 --> 0:10:04.280
<v Speaker 1>on the Senate floor. So it's a little mystifying exactly

0:10:04.360 --> 0:10:09.000
<v Speaker 1>what McConnell's spokesperson is saying. There seems to be substantial

0:10:09.000 --> 0:10:12.240
<v Speaker 1>cooperation from the senators. For those who haven't been listening

0:10:12.320 --> 0:10:17.000
<v Speaker 1>to our conversations about these judges, explain the blue slip

0:10:17.200 --> 0:10:21.360
<v Speaker 1>and how it's still being used for district court nominees. Yes,

0:10:21.800 --> 0:10:26.960
<v Speaker 1>the Republicans essentially eliminated for the appeals courts, which enabled

0:10:27.000 --> 0:10:30.200
<v Speaker 1>them to confirm record numbers of people and leave only

0:10:30.320 --> 0:10:34.600
<v Speaker 1>one pellet vacancy nationwide out of seventy nine now, but

0:10:35.200 --> 0:10:39.199
<v Speaker 1>Chairman Graham of the Senate Judiciary Committee has said he

0:10:39.240 --> 0:10:42.720
<v Speaker 1>would honor them for the district courts. So both Home

0:10:42.800 --> 0:10:45.760
<v Speaker 1>state senators received blue slips from the chair when there's

0:10:45.760 --> 0:10:50.360
<v Speaker 1>a nomination in their state, and then they may choose

0:10:50.559 --> 0:10:54.360
<v Speaker 1>to return that, which signals that they agree the person

0:10:54.440 --> 0:10:56.920
<v Speaker 1>should have a hearing and go through the process, or

0:10:57.200 --> 0:10:59.760
<v Speaker 1>the senators can retain it and that would be the

0:11:00.040 --> 0:11:04.480
<v Speaker 1>end of the nomination. And so the senators have returned

0:11:04.480 --> 0:11:08.000
<v Speaker 1>to all of those blue slips for the nominees in California.

0:11:08.160 --> 0:11:12.080
<v Speaker 1>Are some senators push here about this. Let's talk about

0:11:12.080 --> 0:11:14.760
<v Speaker 1>blue states because that's where most of the emergencies are

0:11:14.800 --> 0:11:17.360
<v Speaker 1>are some of the senators push here about this, and

0:11:17.400 --> 0:11:21.360
<v Speaker 1>that's why they're moving a little bit faster than let's say, California.

0:11:21.480 --> 0:11:25.440
<v Speaker 1>We're New Jersey. Well they are, But some of it

0:11:25.520 --> 0:11:29.120
<v Speaker 1>comes down to the relationship between the White House Council,

0:11:29.679 --> 0:11:32.360
<v Speaker 1>who is really in charge of what happens in the

0:11:32.360 --> 0:11:37.840
<v Speaker 1>White House on nominations UH and the home state senators.

0:11:38.880 --> 0:11:46.679
<v Speaker 1>For example, Senator Durban from Illinois has been very aggressive

0:11:47.280 --> 0:11:50.920
<v Speaker 1>and very effective in working closely with the first White

0:11:50.920 --> 0:11:54.440
<v Speaker 1>House Council and the present White House Council to secure

0:11:54.480 --> 0:11:59.000
<v Speaker 1>nominations in a timely way and move them through the Senate.

0:11:59.120 --> 0:12:03.640
<v Speaker 1>He's very high in the leadership on the Democratic side

0:12:03.679 --> 0:12:07.720
<v Speaker 1>and he's a longtime member of the committee, and he's

0:12:07.760 --> 0:12:13.600
<v Speaker 1>been extremely successful, as has Senator Schumer Um by way

0:12:13.720 --> 0:12:17.880
<v Speaker 1>of filling vacancies in New York and having nominees for

0:12:18.760 --> 0:12:23.520
<v Speaker 1>present vacancies, though there's some vacancy still there, and so

0:12:24.120 --> 0:12:26.920
<v Speaker 1>UH and Senator of Einstein is ranking member on Judiciary

0:12:27.200 --> 0:12:31.240
<v Speaker 1>has enjoyed some success with district nominees from California, though

0:12:31.280 --> 0:12:35.520
<v Speaker 1>they haven't been confirmed yet, and so it really depends

0:12:35.600 --> 0:12:39.600
<v Speaker 1>on Um, the senators from the Home States working closely

0:12:40.360 --> 0:12:46.199
<v Speaker 1>and cooperatively with UH the White House, but there's plenty

0:12:46.200 --> 0:12:48.520
<v Speaker 1>of blame to go around, and often the White House

0:12:48.559 --> 0:12:53.920
<v Speaker 1>has not reached out or been as collegial as it

0:12:54.000 --> 0:12:57.040
<v Speaker 1>might be in working with the Home States senators. You

0:12:57.080 --> 0:13:01.680
<v Speaker 1>mentioned before that California asking now for them to suspend

0:13:01.679 --> 0:13:06.240
<v Speaker 1>the Speedy Trial Eastern District of California, the chief judge

0:13:06.320 --> 0:13:09.400
<v Speaker 1>there as well as Chief Judge Phillips in the Central District,

0:13:09.400 --> 0:13:13.480
<v Speaker 1>have asked the Nice Circuit Judicial Council to suspend the

0:13:13.520 --> 0:13:17.040
<v Speaker 1>Speedy Trial Act because of the crunch of case loads.

0:13:17.480 --> 0:13:20.920
<v Speaker 1>Will there be any problems with with attorneys for those

0:13:20.920 --> 0:13:24.520
<v Speaker 1>defendants saying he or she has a constitutional right to

0:13:24.920 --> 0:13:28.000
<v Speaker 1>have a speedy trial. Well, yes, and that would be

0:13:28.040 --> 0:13:31.000
<v Speaker 1>the argument that could well be made by individual council

0:13:31.080 --> 0:13:36.520
<v Speaker 1>for specific defendants. And that's why they have these exceptions

0:13:36.960 --> 0:13:40.360
<v Speaker 1>in the Speedy Trial Act, which act as a sort

0:13:40.360 --> 0:13:43.360
<v Speaker 1>of safety valve. But by and large they're supposed to

0:13:43.360 --> 0:13:46.840
<v Speaker 1>be speedy trials. That's Carl Tobias, a professor at the

0:13:46.920 --> 0:13:52.640
<v Speaker 1>University of Richmond Law School. You're listening to Bloomberg Law

0:13:52.920 --> 0:13:57.880
<v Speaker 1>with June Grazzo from Bloomberg Radio. Drive through Easter Services

0:13:57.920 --> 0:14:01.680
<v Speaker 1>took place in Kentucky after a new federal judge nominated

0:14:01.679 --> 0:14:05.400
<v Speaker 1>to a high profile appeals court found that restrictions placed

0:14:05.440 --> 0:14:09.599
<v Speaker 1>on those services were unconstitutional. But it wasn't the decision

0:14:09.679 --> 0:14:13.720
<v Speaker 1>itself that attracted attention. It was the way Judge Justin

0:14:13.840 --> 0:14:17.680
<v Speaker 1>Walker wrote that opinion. He begins by sighting St. Paul's

0:14:17.720 --> 0:14:21.359
<v Speaker 1>Gospels rather than case law, and delves into the historical

0:14:21.480 --> 0:14:24.760
<v Speaker 1>plight of Christians before getting to the case at hand.

0:14:24.960 --> 0:14:28.240
<v Speaker 1>About page seven more of a sermon than a legal decision,

0:14:28.720 --> 0:14:31.800
<v Speaker 1>joining me, as Josh Blackman, a constitutional law professor at

0:14:31.800 --> 0:14:35.120
<v Speaker 1>the South Texas College of Law, tell us about the

0:14:35.200 --> 0:14:39.960
<v Speaker 1>decision itself, was it in line with legal authority? Was

0:14:40.000 --> 0:14:43.120
<v Speaker 1>he correct When you look at this decision, I think

0:14:43.200 --> 0:14:46.560
<v Speaker 1>Cats considered the timeline. The timeline is very important here.

0:14:47.440 --> 0:14:51.960
<v Speaker 1>You have eastern Sunday, you have these emergency papers filed

0:14:51.960 --> 0:14:55.640
<v Speaker 1>on Thursday and into Friday, and then you are ruling

0:14:55.680 --> 0:15:00.760
<v Speaker 1>on Saturday. My objection to this ruling w so much

0:15:00.920 --> 0:15:03.440
<v Speaker 1>the outcome. I think he probably got the law right.

0:15:04.560 --> 0:15:07.000
<v Speaker 1>My objection to this ruling was the fact that it

0:15:07.040 --> 0:15:10.960
<v Speaker 1>even needs to happen. M Had the court held a

0:15:11.040 --> 0:15:14.600
<v Speaker 1>short twenty minute status conference, he could have gotten the

0:15:14.600 --> 0:15:16.800
<v Speaker 1>mayor's position, and I think the mayor would have said

0:15:16.840 --> 0:15:19.280
<v Speaker 1>that we are not going to take any action against

0:15:19.840 --> 0:15:24.560
<v Speaker 1>the churchgoers. At that point, the motion for a temporary

0:15:24.560 --> 0:15:27.760
<v Speaker 1>straining order against the mayor becomes moot. Perhaps there will

0:15:27.800 --> 0:15:30.040
<v Speaker 1>be some relief against the governor or the state police,

0:15:30.360 --> 0:15:32.760
<v Speaker 1>but would not be against the City of Louisville. So

0:15:32.840 --> 0:15:35.280
<v Speaker 1>I think the decision was probably right on the merits.

0:15:35.920 --> 0:15:38.560
<v Speaker 1>But it isn't clear to me that this decision needs

0:15:38.600 --> 0:15:40.920
<v Speaker 1>to happen, that you need to issue an injunction against

0:15:40.960 --> 0:15:43.200
<v Speaker 1>the mayor because he didn't plan to take action in

0:15:43.200 --> 0:15:46.920
<v Speaker 1>the first place. What about the way he wrote the opinion.

0:15:47.400 --> 0:15:52.760
<v Speaker 1>He begins by citing St. Paul's Gospel. According to St. Paul,

0:15:52.840 --> 0:15:55.960
<v Speaker 1>the first Pilgrim was able. He talks about the passion

0:15:56.000 --> 0:16:00.000
<v Speaker 1>of Christ, the plight of Christians. What was your reaction

0:16:00.080 --> 0:16:03.520
<v Speaker 1>into just the way this sounded more like a sermon

0:16:03.640 --> 0:16:08.040
<v Speaker 1>than a legal opinion. It sounded like a sermon. Um.

0:16:08.080 --> 0:16:12.200
<v Speaker 1>I I was. I was concurprised by the tone. UM.

0:16:12.320 --> 0:16:13.960
<v Speaker 1>I also think that parts of it were a little

0:16:13.960 --> 0:16:16.760
<v Speaker 1>bit political. Um. He was talking about history of a

0:16:16.800 --> 0:16:20.320
<v Speaker 1>religious discrimination and he mentioned that KKK, which has a

0:16:20.320 --> 0:16:24.200
<v Speaker 1>lot of religious scrimination. And he noted that Justice Hugo

0:16:24.240 --> 0:16:28.280
<v Speaker 1>Black and the Democratic Majority leader Robert Burger clans members. Um.

0:16:28.320 --> 0:16:31.760
<v Speaker 1>That's fairly well known in legal circles. But who cares, right,

0:16:31.880 --> 0:16:34.640
<v Speaker 1>it's not relevant. I mean, I suppose it's relevant show

0:16:34.680 --> 0:16:39.320
<v Speaker 1>that clans members reach high ranked society, but it's taken

0:16:39.360 --> 0:16:42.440
<v Speaker 1>on a political tone in modern day usage. Um. I

0:16:42.480 --> 0:16:44.720
<v Speaker 1>think the opinion could have been a lot shorter to

0:16:44.840 --> 0:16:47.200
<v Speaker 1>have gotten the point quicker. And I didn't think a

0:16:47.240 --> 0:16:50.200
<v Speaker 1>lot of the rhetoric was really helpful to the analysis.

0:16:51.760 --> 0:16:55.040
<v Speaker 1>But was it appropriate even to be talking about the

0:16:55.040 --> 0:16:59.880
<v Speaker 1>passion of Christ and ending with Grayer almost saying Christ

0:17:00.040 --> 0:17:02.000
<v Speaker 1>being there for us and have faith in that. Is

0:17:02.080 --> 0:17:04.879
<v Speaker 1>that even appropriate? I don't think I've ever seen an

0:17:04.880 --> 0:17:07.919
<v Speaker 1>opinion quite like it. Um. Perhaps the judge thought it

0:17:08.000 --> 0:17:12.720
<v Speaker 1>was appropriate given the subject matter Easter, but I have

0:17:12.760 --> 0:17:15.399
<v Speaker 1>not seen something like it. I I it was a

0:17:15.400 --> 0:17:17.840
<v Speaker 1>new one for me. So now we come to the

0:17:17.880 --> 0:17:21.920
<v Speaker 1>point of why. So this is a judge who has

0:17:21.960 --> 0:17:26.639
<v Speaker 1>been a federal judge for about six months after getting

0:17:26.640 --> 0:17:32.160
<v Speaker 1>an unqualified rating from the American Bar Association, but President

0:17:32.200 --> 0:17:35.760
<v Speaker 1>Trump has nominated him to the d C. Circuit Court

0:17:35.760 --> 0:17:39.000
<v Speaker 1>of Appeals, considered the second highest court in the land.

0:17:39.600 --> 0:17:42.359
<v Speaker 1>Did he look at this as almost an audition for

0:17:42.440 --> 0:17:46.560
<v Speaker 1>that spot or a higher spot? Um? So a few

0:17:46.560 --> 0:17:50.640
<v Speaker 1>points June. The audition criticism is not new. UM. We've

0:17:50.680 --> 0:17:52.399
<v Speaker 1>seen that in the past. And I'll give you a

0:17:52.440 --> 0:17:58.919
<v Speaker 1>couple examples. UM. When Judge Roberts was on, was in

0:17:58.960 --> 0:18:01.399
<v Speaker 1>the consideration to be to fill the rank with seat

0:18:02.040 --> 0:18:04.040
<v Speaker 1>back in or actually with your Connor seat back. In

0:18:04.080 --> 0:18:09.320
<v Speaker 1>two thousand five, UM, Judge Roberts issued a decision on

0:18:09.359 --> 0:18:13.760
<v Speaker 1>a Guantanmo case that was very much pro Bush administration, UM,

0:18:13.840 --> 0:18:18.040
<v Speaker 1>and it helped the Bush administration on an important detention issue. UM.

0:18:18.080 --> 0:18:20.520
<v Speaker 1>A lot of people said that Roberts wrote that opinion

0:18:20.640 --> 0:18:22.800
<v Speaker 1>as an audition tape for the Supreme Court and he

0:18:22.880 --> 0:18:25.560
<v Speaker 1>was actually picked eventually. I don't think so. I think

0:18:25.640 --> 0:18:28.000
<v Speaker 1>Roberts wrote what he actually thinks and would have written

0:18:28.000 --> 0:18:32.720
<v Speaker 1>in any circumstance. Um. There was another audition issue involving

0:18:32.800 --> 0:18:34.560
<v Speaker 1>Judge so to Mayor when she was in the Second

0:18:34.600 --> 0:18:37.080
<v Speaker 1>Circuit time. This is in two thousand I guess the

0:18:37.160 --> 0:18:40.560
<v Speaker 1>nine or so. UM. She was on the shortlist for

0:18:40.600 --> 0:18:43.119
<v Speaker 1>the Supreme Court. And it was widely known that Judge

0:18:43.119 --> 0:18:46.679
<v Speaker 1>Suitor addressed Suitor was going to retire, and the Second

0:18:46.720 --> 0:18:50.600
<v Speaker 1>Circuit had a case involving a racial preferences. The case

0:18:50.640 --> 0:18:53.200
<v Speaker 1>involved Frank Ricci, who was a New Haven firefighters. Is

0:18:53.240 --> 0:18:57.000
<v Speaker 1>a very well known case you probably recall, um, and

0:18:57.160 --> 0:18:59.879
<v Speaker 1>this is a huge case. And the Second Circuit panel

0:18:59.880 --> 0:19:02.960
<v Speaker 1>that heard included Judge out of Mayor, and rather than

0:19:03.000 --> 0:19:06.800
<v Speaker 1>actually engaging the issue, the panel with his very short

0:19:06.840 --> 0:19:10.280
<v Speaker 1>pecure opinion as an unsigned opinion that basically blew off

0:19:10.320 --> 0:19:14.480
<v Speaker 1>the issue. And Judge Jobrand has wrote the scathing descent thing,

0:19:14.520 --> 0:19:16.240
<v Speaker 1>what are you doing? This is such an important issue?

0:19:16.240 --> 0:19:19.000
<v Speaker 1>How can you treated so casually? And it was widely

0:19:19.040 --> 0:19:23.240
<v Speaker 1>assumed that Mayor wrote that to make her confirmation easier.

0:19:23.240 --> 0:19:25.960
<v Speaker 1>And I'm skeptical as argents, I think judges do what

0:19:26.040 --> 0:19:28.879
<v Speaker 1>they do for other reasons. UM. I I don't like

0:19:28.920 --> 0:19:33.920
<v Speaker 1>reading that intense into people. UM. And eventually Supreme Court

0:19:33.920 --> 0:19:35.840
<v Speaker 1>reverse out of my yore uh. And this was a

0:19:35.880 --> 0:19:39.480
<v Speaker 1>huge issue in her confirmation hearing. So going to Judge Walker,

0:19:40.280 --> 0:19:42.399
<v Speaker 1>I think he would have handled this case exactly the

0:19:42.440 --> 0:19:44.879
<v Speaker 1>same if he had never been nominated. I think this

0:19:45.119 --> 0:19:47.800
<v Speaker 1>is probably what he thinks about the case independent of

0:19:47.800 --> 0:19:50.680
<v Speaker 1>his nomination. UM. Indeed, the fact that he's a been

0:19:50.680 --> 0:19:55.159
<v Speaker 1>nominated means he's not auditioning as much he got. He

0:19:55.240 --> 0:19:58.480
<v Speaker 1>basically has the job unless this opinion alienated people, which

0:19:58.520 --> 0:20:00.879
<v Speaker 1>could actually backfire. But he didn't need to suck up

0:20:00.880 --> 0:20:04.600
<v Speaker 1>to anyone to get this nomination. He already has it. UM.

0:20:04.640 --> 0:20:07.920
<v Speaker 1>So I'm skeptical June of the of the audition point.

0:20:08.160 --> 0:20:10.600
<v Speaker 1>I don't um after the A, B A, I have

0:20:10.680 --> 0:20:15.000
<v Speaker 1>an overly critical, overtly critical of their view process. UM.

0:20:15.040 --> 0:20:19.439
<v Speaker 1>The unqualified rating that they give doesn't always mean what

0:20:19.480 --> 0:20:21.040
<v Speaker 1>you think it means. I think a lot of case

0:20:21.160 --> 0:20:25.600
<v Speaker 1>has been it's been given in a unfair fashion. Um.

0:20:25.680 --> 0:20:29.520
<v Speaker 1>To be Frank, justin, Judge Walker has not had a

0:20:29.520 --> 0:20:31.840
<v Speaker 1>lot of legal experience, and that might be a ground

0:20:31.840 --> 0:20:34.400
<v Speaker 1>to knock him is unqualified. But a lot of other

0:20:34.440 --> 0:20:37.360
<v Speaker 1>people were being unqualified the basis of like their character

0:20:37.480 --> 0:20:39.320
<v Speaker 1>and people like them or not. These are sort of

0:20:39.359 --> 0:20:44.480
<v Speaker 1>subjective factors. Is it odd that you take someone who

0:20:44.600 --> 0:20:46.679
<v Speaker 1>is thirty eight years old, who has been on the

0:20:46.720 --> 0:20:51.639
<v Speaker 1>bench for about six months and nominate him to d

0:20:51.760 --> 0:20:54.640
<v Speaker 1>C Circuit Court of Appeals, which is a feeder sort

0:20:54.640 --> 0:20:58.720
<v Speaker 1>of for the Supreme Court. Isn't that a stretch? Yeah?

0:20:58.880 --> 0:21:01.280
<v Speaker 1>I mean, look, June, I'll Frank, there was a very

0:21:01.320 --> 0:21:03.720
<v Speaker 1>long line of people who were waiting for the DC

0:21:03.840 --> 0:21:06.879
<v Speaker 1>Circuit seat. These are people have been partners at prominent

0:21:06.920 --> 0:21:12.440
<v Speaker 1>law firms, prominent academics, UM judges and other courts. UM.

0:21:12.480 --> 0:21:14.040
<v Speaker 1>There were a lot of people who were head of

0:21:14.040 --> 0:21:16.679
<v Speaker 1>the line. UM, and I think the the obvious answer

0:21:16.720 --> 0:21:19.960
<v Speaker 1>is miss McConnell wanted his person. McConnell's made no secret

0:21:19.960 --> 0:21:24.440
<v Speaker 1>about this, UM and Mitch McConnell's cloud. UM. Now, we've

0:21:24.440 --> 0:21:27.280
<v Speaker 1>had a lot of young judges appointed to the Courts

0:21:27.280 --> 0:21:31.560
<v Speaker 1>of Appeals with no judicial experience during the Reagan administration,

0:21:31.560 --> 0:21:33.880
<v Speaker 1>and I think Judge Edith Jones was thirty eight or so,

0:21:34.320 --> 0:21:37.280
<v Speaker 1>and she's now a prominent circuit judge with she's well

0:21:37.320 --> 0:21:39.359
<v Speaker 1>known and everyone likes her, but she's very well she

0:21:39.520 --> 0:21:41.159
<v Speaker 1>was bestly well respected. A lot of people don't like her.

0:21:41.200 --> 0:21:42.560
<v Speaker 1>I like her, I'm a fan of hers, but but

0:21:42.600 --> 0:21:45.600
<v Speaker 1>she's very well known. Judge J. Harvey Wilkinson on the

0:21:45.640 --> 0:21:48.400
<v Speaker 1>fourth Circuit I think it was thirty seven or thirty eight.

0:21:48.720 --> 0:21:51.120
<v Speaker 1>The other one is Alex Kazinski. That's Internet so well,

0:21:51.240 --> 0:21:53.359
<v Speaker 1>maybe it's not such a good idea. I don't know.

0:21:53.359 --> 0:21:55.680
<v Speaker 1>Maybe I think my point back the social climbers who

0:21:55.680 --> 0:21:57.399
<v Speaker 1>get there so young, maybe aren't. But I think as

0:21:57.400 --> 0:22:01.480
<v Speaker 1>a general matter, age is not a a permanentis qualifier.

0:22:01.640 --> 0:22:04.400
<v Speaker 1>I think, more than anything else, Judge Walker got that

0:22:04.480 --> 0:22:07.760
<v Speaker 1>nomination in part because of Senator McConnell's sway, and he

0:22:07.960 --> 0:22:10.720
<v Speaker 1>McConnell has a lot of sway. I think in the

0:22:10.800 --> 0:22:13.879
<v Speaker 1>history there are not many new district court judges who

0:22:13.920 --> 0:22:16.560
<v Speaker 1>put up although I think Judge sent Tell, if memory,

0:22:16.560 --> 0:22:19.600
<v Speaker 1>serves as a district judge in North Carolina. Uh and

0:22:19.720 --> 0:22:21.800
<v Speaker 1>he had been a judge for not a terribly long time,

0:22:21.840 --> 0:22:24.160
<v Speaker 1>but he had been a district judge at the time,

0:22:24.480 --> 0:22:27.560
<v Speaker 1>as the called, Senator Helms was very influential, and Senator

0:22:27.560 --> 0:22:30.479
<v Speaker 1>Helms pushed Reagan to put Sentel in the DC circuit.

0:22:30.720 --> 0:22:32.920
<v Speaker 1>So there there is, you know, some president called good

0:22:32.960 --> 0:22:35.959
<v Speaker 1>or bad, but there's some precedent for this move. Majority

0:22:36.040 --> 0:22:40.960
<v Speaker 1>Leader McConnell tweeted about the decision and praised it, as

0:22:41.040 --> 0:22:44.760
<v Speaker 1>did did the other Kentucky Senator Ran Paul. But does

0:22:44.800 --> 0:22:48.520
<v Speaker 1>a decision like this add to the problems of the

0:22:48.560 --> 0:22:54.760
<v Speaker 1>culture war that seemed to be almost exacerbated during this pandemic. Yeah,

0:22:54.800 --> 0:22:58.680
<v Speaker 1>I mean, look, I June, you can't stop politicians from politicians.

0:22:59.320 --> 0:23:01.320
<v Speaker 1>When politicians and see things they like, they praise it.

0:23:01.440 --> 0:23:04.440
<v Speaker 1>So of course McConnell or Rand Paul sees something like

0:23:04.520 --> 0:23:08.720
<v Speaker 1>they're gonna they're going to celebrate. I think that's that's unavoidable. Um.

0:23:08.760 --> 0:23:11.040
<v Speaker 1>I think Judge Walker could have done well to have

0:23:11.080 --> 0:23:14.000
<v Speaker 1>avoided the sort of toxic culture and these issues in

0:23:14.080 --> 0:23:18.800
<v Speaker 1>this difficult time by maybe issuing a more moderately worded

0:23:18.800 --> 0:23:22.359
<v Speaker 1>opinion and perhaps asking to see of Louisville what your

0:23:22.359 --> 0:23:24.920
<v Speaker 1>plans are before assuing this ruling. I think the entire

0:23:24.960 --> 0:23:27.119
<v Speaker 1>case could have been to be mooted by the fact

0:23:27.160 --> 0:23:28.879
<v Speaker 1>that there's really no needs resolve. It is for you.

0:23:29.000 --> 0:23:32.120
<v Speaker 1>Now ask you about something else while I have you on.

0:23:32.880 --> 0:23:38.399
<v Speaker 1>The Department of Justice announced a tweet that Attorney General

0:23:38.400 --> 0:23:42.119
<v Speaker 1>William Barr is getting ready to sue states that limit

0:23:42.200 --> 0:23:46.160
<v Speaker 1>the ability of parishioners to pray together during the pandemic.

0:23:46.760 --> 0:23:51.240
<v Speaker 1>I'm wondering what the boundaries are here as far as

0:23:51.800 --> 0:23:56.399
<v Speaker 1>parishioners being able to get together during this time. I

0:23:56.440 --> 0:23:59.879
<v Speaker 1>think DJ has actually even moved ahead. There was a

0:24:00.000 --> 0:24:03.560
<v Speaker 1>case filed in Mississippi, I believe, challenging one of these

0:24:03.600 --> 0:24:06.840
<v Speaker 1>bands on people meeting in houses of worship. The Department

0:24:06.840 --> 0:24:09.400
<v Speaker 1>of Justice filed what's called a statement of interest, which

0:24:09.440 --> 0:24:11.159
<v Speaker 1>is not exactly a lawsuit. It's kind of like an

0:24:11.160 --> 0:24:13.720
<v Speaker 1>amicus brief, Friends of the Court brief. So d J

0:24:13.920 --> 0:24:16.919
<v Speaker 1>has gotten involved. Look, I'll be honest, these issues are

0:24:17.000 --> 0:24:20.800
<v Speaker 1>very tough. Generally, the government under the free Exercise Clause

0:24:21.359 --> 0:24:24.400
<v Speaker 1>can't single out religion for certain burdens. Stay at home

0:24:24.520 --> 0:24:29.760
<v Speaker 1>orders aren't really singling out religion. They apply to all institutions.

0:24:29.760 --> 0:24:32.160
<v Speaker 1>You can't meet more than ten people. But then they're

0:24:32.160 --> 0:24:35.080
<v Speaker 1>exceptions right where you carve it. All these various exceptions,

0:24:35.080 --> 0:24:36.879
<v Speaker 1>So why can you have a drive through Wendy's but

0:24:36.880 --> 0:24:39.960
<v Speaker 1>not a drive through church. Thanks for being on Bloomberg Law. Josh.

0:24:40.240 --> 0:24:43.320
<v Speaker 1>That's Josh Plackman, a constitutional law professor at the South

0:24:43.400 --> 0:24:46.560
<v Speaker 1>Texas College of Law. Thanks for listening to the Bloomberg

0:24:46.640 --> 0:24:49.680
<v Speaker 1>Law podcast. You can subscribe and listen to the show

0:24:49.720 --> 0:24:54.439
<v Speaker 1>on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast.

0:24:54.840 --> 0:25:01.280
<v Speaker 1>I'm June Grosso. This is Bloomberg returned to Jack