1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloombird Law with June Brusso from Bloomberg Radio. 2 00:00:09,000 --> 00:00:13,480 Speaker 1: An entire generation is now settled with unsustainable debt exchange 3 00:00:13,600 --> 00:00:17,160 Speaker 1: for attempts at least of a college degree. In August, 4 00:00:17,239 --> 00:00:21,280 Speaker 1: President Joe Biden announced that his administration is forgiving hundreds 5 00:00:21,280 --> 00:00:24,880 Speaker 1: of billions of dollars in federal student loan debt. The 6 00:00:24,920 --> 00:00:28,120 Speaker 1: Department of Education hasn't even put out the application to 7 00:00:28,240 --> 00:00:32,200 Speaker 1: receive student loan forgiveness yet, but there are already five 8 00:00:32,320 --> 00:00:36,360 Speaker 1: lawsuits challenging Biden's plan. Two of those lawsuits are being 9 00:00:36,360 --> 00:00:42,200 Speaker 1: brought by Republican attorneys general in Arizona, Arkansas, Iowa, Kansas, Missouri, Nebraska, 10 00:00:42,320 --> 00:00:46,519 Speaker 1: and South Carolina Missouri. Republican Senator Roy Blunt said the 11 00:00:46,560 --> 00:00:51,680 Speaker 1: program is just unfair, unfair to people who didn't go 12 00:00:51,720 --> 00:00:53,800 Speaker 1: to college because they didn't think they could afford it, 13 00:00:54,200 --> 00:00:56,720 Speaker 1: unfair to people who had paid their loans back, unfair 14 00:00:56,760 --> 00:01:00,520 Speaker 1: to people who got the higher education in an area 15 00:01:00,520 --> 00:01:04,480 Speaker 1: that the government didn't make loans, and just bad economics. 16 00:01:04,640 --> 00:01:07,919 Speaker 1: My guest is Mark cantrowits an expert in student loans 17 00:01:07,959 --> 00:01:11,640 Speaker 1: and financial aid. Start by just telling us a little 18 00:01:11,640 --> 00:01:16,440 Speaker 1: about Biden's student Loan Relief Plan. SO Biden's Student Loan 19 00:01:16,480 --> 00:01:20,720 Speaker 1: Forgiveness Plan forgives up to ten or twenty thousand dollars 20 00:01:20,720 --> 00:01:25,520 Speaker 1: of student loan debt, depending on whether the bower received 21 00:01:25,640 --> 00:01:28,920 Speaker 1: a federal pell grant while they were in college. The 22 00:01:29,080 --> 00:01:32,440 Speaker 1: higher amount is for pell grant recipients. There is an 23 00:01:32,480 --> 00:01:37,319 Speaker 1: income cap at five thousand dollars for single ballers and 24 00:01:37,400 --> 00:01:42,440 Speaker 1: two fifty dollars for bowers who are married finally jointly 25 00:01:42,600 --> 00:01:46,840 Speaker 1: or head of household. And the application for this loan 26 00:01:46,920 --> 00:01:50,960 Speaker 1: forgiveness is supposed to come out in early October, so 27 00:01:51,080 --> 00:01:55,200 Speaker 1: any day now, and bowers have until December thirty one 28 00:01:55,640 --> 00:01:59,000 Speaker 1: to buy all The form forgiveness should occur for to 29 00:01:59,120 --> 00:02:03,160 Speaker 1: six weeks after the borrower applies for it, so if 30 00:02:03,160 --> 00:02:06,440 Speaker 1: a borrower wants their forgiveness to occur before the restart 31 00:02:06,520 --> 00:02:11,559 Speaker 1: repayment in January, they should aim to file the form 32 00:02:11,560 --> 00:02:15,080 Speaker 1: by November. Is it only for college or is it 33 00:02:15,120 --> 00:02:19,040 Speaker 1: for graduate school as well? It includes undergraduate and graduate 34 00:02:19,080 --> 00:02:22,560 Speaker 1: student loan debt is only available for federal student loans 35 00:02:22,639 --> 00:02:26,359 Speaker 1: and parent loans that are held by or on behalf 36 00:02:26,480 --> 00:02:30,080 Speaker 1: of the U S Department of Education. So loans that 37 00:02:30,200 --> 00:02:33,560 Speaker 1: were in the Federal Family Education Loan Program that are 38 00:02:33,600 --> 00:02:38,240 Speaker 1: commercially held are not eligible for forgiveness. Now, a borrower 39 00:02:38,320 --> 00:02:42,760 Speaker 1: could have consolidated those loans into the direct loan program, 40 00:02:42,880 --> 00:02:47,160 Speaker 1: and the federal direct Consolidation loan does qualify, but they 41 00:02:47,280 --> 00:02:51,960 Speaker 1: would have had to apply for it by before September. 42 00:02:54,840 --> 00:02:58,160 Speaker 1: Do you have an idea of what percentage of student 43 00:02:58,200 --> 00:03:02,920 Speaker 1: loan borrowers would be covered by this, Well, the income 44 00:03:03,440 --> 00:03:08,600 Speaker 1: caps reduce the number of ballers by somewhere between five 45 00:03:08,639 --> 00:03:12,120 Speaker 1: and ten percent. As far as being eligible for the 46 00:03:12,240 --> 00:03:16,400 Speaker 1: higher twenty dollars of forgiveness, it's somewhere between fifty and 47 00:03:16,440 --> 00:03:21,360 Speaker 1: sixty of followers received a federal hell grant while they 48 00:03:21,360 --> 00:03:24,840 Speaker 1: were undergraduate students. So now it's hard to keep track 49 00:03:25,080 --> 00:03:28,520 Speaker 1: of the lawsuits because they keep on coming the challenges 50 00:03:28,560 --> 00:03:32,080 Speaker 1: to this plan. How tough will it be for the 51 00:03:32,120 --> 00:03:35,240 Speaker 1: opponents to get over the standing issue that they will 52 00:03:35,280 --> 00:03:38,040 Speaker 1: be harmed by the plan? Well, I think that is 53 00:03:38,080 --> 00:03:41,240 Speaker 1: the key issue that the plaintiffs are going to have 54 00:03:41,280 --> 00:03:45,080 Speaker 1: a lot of difficulty demonstrating that they have the legal 55 00:03:45,160 --> 00:03:48,240 Speaker 1: standing to file a lawsuit. First of all, you have 56 00:03:48,320 --> 00:03:52,000 Speaker 1: to demonstrate that you are harmed and there are certain 57 00:03:52,160 --> 00:03:56,000 Speaker 1: categories of harm that don't establish legal standing. For example, 58 00:03:56,240 --> 00:03:59,920 Speaker 1: taxpayers do not have the legal standing to file laws 59 00:04:00,000 --> 00:04:03,320 Speaker 1: it against the federal government because they play two thousand 60 00:04:03,440 --> 00:04:07,040 Speaker 1: seven u. S. Supreme Court ruling it was kind versus 61 00:04:07,040 --> 00:04:10,200 Speaker 1: freedom from a religion foundation. And also, bowers who do 62 00:04:10,280 --> 00:04:14,480 Speaker 1: not qualify for student loan forgiveness can't demonstrate that they 63 00:04:14,520 --> 00:04:18,080 Speaker 1: were harmed because you're not getting something that does mean 64 00:04:18,240 --> 00:04:23,320 Speaker 1: you're worse off. And also the Higher Education Act does 65 00:04:23,360 --> 00:04:26,600 Speaker 1: not provide bowers with a private right of action. Now, 66 00:04:26,640 --> 00:04:30,680 Speaker 1: one of these lawsuits tried to argue that the Administrative 67 00:04:30,720 --> 00:04:35,400 Speaker 1: Procedures Act has a requirement for notice and comment public comment, 68 00:04:35,880 --> 00:04:40,080 Speaker 1: and that two bowers were not afforded the opportunity to 69 00:04:40,120 --> 00:04:44,599 Speaker 1: provide public comments. But they obviously didn't read the Heroes 70 00:04:44,680 --> 00:04:49,400 Speaker 1: Act to two thousand three, which specifically exempts actions taken 71 00:04:49,440 --> 00:04:53,520 Speaker 1: under the Heroes Act from the requirement for public comment. 72 00:04:53,920 --> 00:04:56,440 Speaker 1: The sole requirement is that they publish it in the 73 00:04:56,440 --> 00:05:01,039 Speaker 1: Federal Register, which the Bide administration has done, so that 74 00:05:01,279 --> 00:05:04,600 Speaker 1: trying to argue for legal standing just falls completely flat 75 00:05:04,640 --> 00:05:07,840 Speaker 1: based on the plain language of the law. As you know, 76 00:05:08,200 --> 00:05:12,479 Speaker 1: Republican state ages of Nebraska, Missouri Arkansas, Iowa, Kansas, and 77 00:05:12,520 --> 00:05:16,520 Speaker 1: South Carolina filed suit and a separate suit by Arizona. 78 00:05:16,800 --> 00:05:20,880 Speaker 1: And Arizona says that this plan will harm the state's economy, 79 00:05:21,040 --> 00:05:24,240 Speaker 1: increase its cost of borrowing, and limit the ability of 80 00:05:24,279 --> 00:05:28,599 Speaker 1: the state attorneys General's office to recruit legal talent. That 81 00:05:28,760 --> 00:05:32,760 Speaker 1: sounds like they're really reaching. Well, there's kind of throwing 82 00:05:32,800 --> 00:05:35,560 Speaker 1: the entire kitchen sink at this is hoping that something 83 00:05:36,080 --> 00:05:39,120 Speaker 1: makes it through to demonstrate legal standing, because once one 84 00:05:39,160 --> 00:05:42,960 Speaker 1: of these lawsuits demonstrates legal standing, then the arguments they 85 00:05:42,960 --> 00:05:46,440 Speaker 1: can bring about the legality of the president's plan are 86 00:05:46,560 --> 00:05:50,680 Speaker 1: much more powerful. And I believe that if they can 87 00:05:50,760 --> 00:05:53,560 Speaker 1: make it to the U. S. Supreme Court, the President's 88 00:05:53,960 --> 00:05:57,359 Speaker 1: student and Forgiveness plan will ultimately get blocked. There are 89 00:05:57,360 --> 00:06:00,600 Speaker 1: a lot of reasons for that, but the oranges. In 90 00:06:00,800 --> 00:06:05,239 Speaker 1: demonstrating legal standing, you have to establish that the harm 91 00:06:05,320 --> 00:06:11,320 Speaker 1: was direct and not speculative, not vague, and most of 92 00:06:11,320 --> 00:06:15,119 Speaker 1: these lawsuits don't satisfy that. Now, with the six state 93 00:06:15,160 --> 00:06:20,160 Speaker 1: attorney general lawsuit, they're trying to argue that the state 94 00:06:20,480 --> 00:06:24,800 Speaker 1: is harmed because one aspect of the president's plan was 95 00:06:24,920 --> 00:06:28,880 Speaker 1: allowing bowers in the f f E L program to 96 00:06:28,960 --> 00:06:33,359 Speaker 1: consolidate their loans into the direct loan program, and that 97 00:06:33,480 --> 00:06:37,040 Speaker 1: would then reduce the loan volume that the state manages 98 00:06:37,120 --> 00:06:40,440 Speaker 1: and services in the f E L program, therefore causing 99 00:06:40,480 --> 00:06:44,240 Speaker 1: financial harm. And that would have been a good argument, 100 00:06:44,760 --> 00:06:49,000 Speaker 1: except the US Apartment of Education responded by saying, Okay, 101 00:06:49,160 --> 00:06:52,920 Speaker 1: the program bowers are no longer eligible as of September 102 00:06:52,920 --> 00:06:56,880 Speaker 1: twenty nine. If you apply for consolidation, that consolidation loan 103 00:06:57,000 --> 00:07:01,960 Speaker 1: is ineligible. And this demonstrates a flawed legal strategy in 104 00:07:02,000 --> 00:07:04,760 Speaker 1: the five lawsuits and then filed to date, which is 105 00:07:04,839 --> 00:07:08,360 Speaker 1: they jumped the gun. They decided to file a lawsuit 106 00:07:09,040 --> 00:07:12,240 Speaker 1: before the U. S Department of Education had given any 107 00:07:12,280 --> 00:07:17,480 Speaker 1: loans or even publish the student Loan Forgiveness application. And 108 00:07:17,680 --> 00:07:22,960 Speaker 1: once they published the application and they start collecting applications 109 00:07:23,040 --> 00:07:27,520 Speaker 1: and start for giving loans, the program is more finalized 110 00:07:27,800 --> 00:07:30,680 Speaker 1: and at that point is when you should file a lawsuits. 111 00:07:30,680 --> 00:07:34,040 Speaker 1: By filing the lawsuits too soon, they gave the US 112 00:07:34,080 --> 00:07:37,760 Speaker 1: Apartment of Education the opportunity to change the terms of 113 00:07:37,800 --> 00:07:42,520 Speaker 1: the program to eliminate legal standing for for these litigants. 114 00:07:43,720 --> 00:07:49,200 Speaker 1: It seems like Republican states and conservative organizations are against 115 00:07:49,200 --> 00:07:53,680 Speaker 1: this plan. Is it just political or are there real 116 00:07:53,800 --> 00:07:58,280 Speaker 1: consequences that they're concerned about. Well, and it's partly political, 117 00:07:58,440 --> 00:08:02,360 Speaker 1: but it's also part the The president is using an 118 00:08:02,440 --> 00:08:07,400 Speaker 1: executive order to forgive around for billion dollars of student loans. 119 00:08:07,440 --> 00:08:11,440 Speaker 1: That's a right that's usually reserved to Congress, and only 120 00:08:11,520 --> 00:08:15,240 Speaker 1: Congress has the power of the purse. And if you 121 00:08:15,320 --> 00:08:20,440 Speaker 1: start allowing the executive branch to appropriate funds, then there's 122 00:08:20,480 --> 00:08:24,880 Speaker 1: no stopping what a democratic administration or of republican administration 123 00:08:25,320 --> 00:08:30,480 Speaker 1: can do, and some people are very strongly opposed to it. 124 00:08:30,880 --> 00:08:35,640 Speaker 1: There's also the financial fairness considerations, and for some reason, 125 00:08:35,960 --> 00:08:40,400 Speaker 1: people are taking the financial fairness aspects of the president's 126 00:08:40,440 --> 00:08:44,480 Speaker 1: plan much more personally. And it's not oh, there are 127 00:08:44,480 --> 00:08:49,320 Speaker 1: certain groups of individuals who aren't benefiting, or taxpayer dollars 128 00:08:49,400 --> 00:08:52,480 Speaker 1: is being used to it, it's my taxpayers dollars are 129 00:08:52,520 --> 00:08:56,000 Speaker 1: being used to it, or I'm not qualifying, I'm not 130 00:08:56,080 --> 00:09:00,680 Speaker 1: receiving forgiveness. And so the arguments relate to what about 131 00:09:00,760 --> 00:09:04,320 Speaker 1: people who already paid off their student loans, or people 132 00:09:04,480 --> 00:09:07,840 Speaker 1: who didn't borrow because they saved before college or worked 133 00:09:08,160 --> 00:09:11,160 Speaker 1: several jobs while in college, or what about people who 134 00:09:11,440 --> 00:09:14,040 Speaker 1: just didn't go to college and they don't have a 135 00:09:14,040 --> 00:09:16,480 Speaker 1: college degree yet they are going to be paying to 136 00:09:16,720 --> 00:09:20,640 Speaker 1: repay someone else's student loans, or what about future generations 137 00:09:20,679 --> 00:09:24,520 Speaker 1: of students who aren't going to get this one time forgiveness. 138 00:09:24,520 --> 00:09:28,120 Speaker 1: So those are the kind of is this right type 139 00:09:28,120 --> 00:09:31,360 Speaker 1: of arguments, But then there's also a lot of negative 140 00:09:31,400 --> 00:09:37,560 Speaker 1: animus concerning uh, the other party. It's something that they're 141 00:09:37,920 --> 00:09:42,920 Speaker 1: using to try to draw a political distinction to fire 142 00:09:43,000 --> 00:09:46,480 Speaker 1: up their base. Um potentially this is going to backfire 143 00:09:46,480 --> 00:09:49,760 Speaker 1: on them, and this is a kind of heads I win, 144 00:09:49,920 --> 00:09:53,560 Speaker 1: tails you lose scenario for Democrats. If they succeed in 145 00:09:53,640 --> 00:09:56,600 Speaker 1: providing the forgiveness, they have a lot of very happy bowers, 146 00:09:56,679 --> 00:09:59,880 Speaker 1: tens of millions of them who are presumably more like 147 00:10:00,040 --> 00:10:02,640 Speaker 1: clear to vote. Democrats are more likely to get out 148 00:10:02,640 --> 00:10:06,760 Speaker 1: and vote if the Republicans succeed in blocking it than 149 00:10:07,080 --> 00:10:11,440 Speaker 1: that clear distinction between the Democrats and Republicans still helps 150 00:10:11,440 --> 00:10:15,079 Speaker 1: the Democrats get out the vote, because then they'll say, well, 151 00:10:15,120 --> 00:10:17,360 Speaker 1: the only way to get this to happen is if 152 00:10:17,400 --> 00:10:20,320 Speaker 1: you vote in a few more Democrats, especially in the Senate, 153 00:10:20,440 --> 00:10:24,079 Speaker 1: and can retain the House in order to pass this 154 00:10:24,160 --> 00:10:28,400 Speaker 1: through legislation and student loan issues have been winning issues 155 00:10:28,440 --> 00:10:31,480 Speaker 1: for Democrats in the past. In two thousand and six, 156 00:10:31,559 --> 00:10:34,720 Speaker 1: they had six pledges for two thousand six. They called 157 00:10:34,720 --> 00:10:37,760 Speaker 1: it six four oh six, one of which was to 158 00:10:37,840 --> 00:10:41,320 Speaker 1: slash the interest rates on student loans in half. Because 159 00:10:41,360 --> 00:10:43,920 Speaker 1: of that, Democrats took over the House and the Senate 160 00:10:43,960 --> 00:10:47,679 Speaker 1: that year and then they implemented their promise. So this 161 00:10:47,760 --> 00:10:49,880 Speaker 1: has worked for them in the past. See if it 162 00:10:49,880 --> 00:10:52,600 Speaker 1: works for them this time. Now you refer to this, 163 00:10:52,840 --> 00:10:55,520 Speaker 1: I want to talk about the merits argument. Is it 164 00:10:55,679 --> 00:10:58,800 Speaker 1: that the president doesn't have the power to do what 165 00:10:58,840 --> 00:11:02,640 Speaker 1: he did by executive order? Well, and that's part of it. 166 00:11:03,000 --> 00:11:07,560 Speaker 1: There are a lot of um aspects of the president's 167 00:11:07,600 --> 00:11:13,560 Speaker 1: plans that are potentially going too far. So first of all, 168 00:11:13,600 --> 00:11:16,320 Speaker 1: they assert that they have the legal authority to do 169 00:11:16,400 --> 00:11:19,439 Speaker 1: this because of the Heroes Act to two thousand three. 170 00:11:20,240 --> 00:11:23,120 Speaker 1: But the Heroes Act to two thousand three doesn't explicitly 171 00:11:23,200 --> 00:11:27,720 Speaker 1: authorize a loan forgiveness program. It provides for certain waivers, 172 00:11:27,800 --> 00:11:31,920 Speaker 1: and they're using an expansive reading of that waiver authority 173 00:11:32,080 --> 00:11:35,360 Speaker 1: to say they have the authority to create a loan 174 00:11:35,360 --> 00:11:38,760 Speaker 1: forgiveness program. On the other hand, Congress has other loan 175 00:11:38,800 --> 00:11:42,600 Speaker 1: forgiveness programs like teacher loan forgiveness, public service own forgiveness, 176 00:11:42,920 --> 00:11:47,480 Speaker 1: disability discharges that they have explicitly passed. And there have 177 00:11:47,679 --> 00:11:53,040 Speaker 1: been attempts to pass legislation to implement something like the 178 00:11:53,040 --> 00:11:56,400 Speaker 1: President's plan, but they usually haven't been reported out of committee, 179 00:11:56,720 --> 00:11:59,240 Speaker 1: so they can't get it through Congress, and now they 180 00:11:59,280 --> 00:12:02,040 Speaker 1: got the President to do it through executive action. There's 181 00:12:02,080 --> 00:12:06,120 Speaker 1: something called the major questions doctrine, which we most recently 182 00:12:06,160 --> 00:12:09,600 Speaker 1: saw in the two thousand twenty two U. S. Supreme 183 00:12:09,600 --> 00:12:12,480 Speaker 1: Court ruling in West Virginia versus E. P A that 184 00:12:12,640 --> 00:12:17,440 Speaker 1: cases involving vast economic and political significant such as massive 185 00:12:17,480 --> 00:12:22,160 Speaker 1: spending and for billion dollars certainly qualifies requires a clear 186 00:12:22,520 --> 00:12:28,520 Speaker 1: and unambiguous statutory text authorizing that agency action. And this 187 00:12:28,600 --> 00:12:32,560 Speaker 1: isn't something that's brand new in two with the current court. 188 00:12:32,720 --> 00:12:36,040 Speaker 1: In two thousand one, there was a U. S. Supreme 189 00:12:36,040 --> 00:12:41,960 Speaker 1: Court ruling in Whitman versus American Trucking where the ruling 190 00:12:42,040 --> 00:12:46,040 Speaker 1: said Congress does not hide elephants in mouseholds. So if 191 00:12:46,080 --> 00:12:51,040 Speaker 1: you're Congress intended to have massive student loan forgiveness, and 192 00:12:51,080 --> 00:12:53,480 Speaker 1: this is forgiving a quarter of federal student loan debt. 193 00:12:53,840 --> 00:12:57,560 Speaker 1: They would have explicitly authorized it. And as I said before, 194 00:12:57,640 --> 00:13:00,160 Speaker 1: only Congress has the power of the purse. It's the 195 00:13:00,240 --> 00:13:02,840 Speaker 1: U S Constitution. And there's also a law called the 196 00:13:02,880 --> 00:13:06,800 Speaker 1: Anti Deficiency Act, so they can't delegate that authority to 197 00:13:06,840 --> 00:13:10,680 Speaker 1: the executive branch. And they didn't authorize spending hundreds of 198 00:13:10,679 --> 00:13:14,080 Speaker 1: billions of dollars on a new loan forgiveness program. And then, 199 00:13:14,840 --> 00:13:20,040 Speaker 1: and even if you think that okay, this is all okay, 200 00:13:20,160 --> 00:13:23,600 Speaker 1: they don't satisfy the legal requirements of the Heroes Act 201 00:13:23,600 --> 00:13:27,000 Speaker 1: of two thousand three. The waiver authority in the Heroes 202 00:13:27,080 --> 00:13:30,400 Speaker 1: Act of two thousand three is limited to ensuring that 203 00:13:31,000 --> 00:13:35,840 Speaker 1: affected individuals are not placed in a worse position financially. 204 00:13:36,280 --> 00:13:39,040 Speaker 1: Not worse off does not mean better off. Now, this 205 00:13:39,160 --> 00:13:42,240 Speaker 1: authority was used to implement the payment pause and interest waiver, 206 00:13:42,600 --> 00:13:46,160 Speaker 1: because that put the eligible loans essentially in hibernation. They're 207 00:13:46,160 --> 00:13:48,440 Speaker 1: going to be the same when we payments be starts 208 00:13:48,520 --> 00:13:51,720 Speaker 1: as they were prior to the pandemics to and loan forgiveness, 209 00:13:51,720 --> 00:13:54,040 Speaker 1: on the other hand, puts the bowers in a better 210 00:13:54,080 --> 00:13:58,079 Speaker 1: financial position by reducing their loan balances so that's saying 211 00:13:58,120 --> 00:14:02,680 Speaker 1: it doesn't match the textual language of the Heroes Act. Also, 212 00:14:03,120 --> 00:14:06,800 Speaker 1: the definition of an affected individual, and I'm quoting here 213 00:14:07,120 --> 00:14:11,560 Speaker 1: is someone who has suffered direct economic hardship as a 214 00:14:11,640 --> 00:14:15,000 Speaker 1: direct result of a national emergency. The word direct appears 215 00:14:15,000 --> 00:14:20,400 Speaker 1: twice extra emphasis. And the President hasn't limited the forgiveness 216 00:14:20,440 --> 00:14:24,000 Speaker 1: to bowers who experienced direct economic hardship as a result 217 00:14:24,040 --> 00:14:26,920 Speaker 1: of the pandemic, and targeting it by income is not 218 00:14:27,000 --> 00:14:30,080 Speaker 1: the same as targeting based on a decrease in income. 219 00:14:30,280 --> 00:14:33,800 Speaker 1: And I think there are a lot of policy proponents 220 00:14:33,840 --> 00:14:37,960 Speaker 1: who would have preferred that the President's plan be much 221 00:14:38,040 --> 00:14:44,200 Speaker 1: more targeted to bowers who are negatively impacted by the pandemic, 222 00:14:44,400 --> 00:14:48,720 Speaker 1: or bowers who are struggling financially, bowers who are in 223 00:14:49,040 --> 00:14:53,960 Speaker 1: uh default or long term delinquency. A third of bowers 224 00:14:53,960 --> 00:14:56,520 Speaker 1: who are senior citizens are in default on their federal 225 00:14:56,600 --> 00:14:59,400 Speaker 1: student loans, half of those age seventy five and older. 226 00:14:59,600 --> 00:15:05,920 Speaker 1: So this does give everyone forgiveness. Some people object to that. Now, 227 00:15:06,000 --> 00:15:08,360 Speaker 1: the the other arguments that have been made in some 228 00:15:08,440 --> 00:15:12,280 Speaker 1: of these lawsuits include equal protection clause of US Constitution 229 00:15:12,640 --> 00:15:16,720 Speaker 1: and trying to argue that the present plan was motivated 230 00:15:16,800 --> 00:15:20,240 Speaker 1: by a goal of advancing racial equity and narrowing the 231 00:15:20,360 --> 00:15:23,120 Speaker 1: racial wealth gap. I think that's a very tenuous argument 232 00:15:23,200 --> 00:15:27,720 Speaker 1: and likely wouldn't succeed. And then there's the Administrative Procedures Act, 233 00:15:27,960 --> 00:15:32,000 Speaker 1: which we discussed before, and it was exceeding statutory authority, 234 00:15:32,520 --> 00:15:36,720 Speaker 1: arbitrary and caprecious agency action. Again, that's a weaker argument 235 00:15:36,800 --> 00:15:40,480 Speaker 1: than the power of the first type arguments and the 236 00:15:40,600 --> 00:15:44,920 Speaker 1: failure to fulfill the requirements of the Hero's Attitude thousand three. 237 00:15:45,400 --> 00:15:50,520 Speaker 1: It seems like what the challengers here need is a 238 00:15:50,640 --> 00:15:54,760 Speaker 1: temporary injunction to stop the plan from going into effect, 239 00:15:55,240 --> 00:15:58,720 Speaker 1: and a federal judge who dismissed a Wisconsin group's legal 240 00:15:58,800 --> 00:16:03,320 Speaker 1: challenge Wisconsin Institute for Law and Liberty, said that even 241 00:16:03,360 --> 00:16:06,080 Speaker 1: if the group did have standing for the case to proceed, 242 00:16:06,560 --> 00:16:09,320 Speaker 1: it's unclear if they would succeed in their request to 243 00:16:09,440 --> 00:16:13,120 Speaker 1: temporarily block the plan. That's a high burden to get 244 00:16:13,120 --> 00:16:17,600 Speaker 1: an injunction to block the plan, right well. A temporary 245 00:16:17,600 --> 00:16:23,760 Speaker 1: restraining order or preliminary injunction would temporarily block the plan, 246 00:16:24,360 --> 00:16:29,160 Speaker 1: would suspend it until the court had an opportunity to 247 00:16:29,720 --> 00:16:33,680 Speaker 1: process the case, have a testimony and review everything and 248 00:16:33,960 --> 00:16:39,640 Speaker 1: reach a conclusion. So if a case surpasses the legal 249 00:16:39,720 --> 00:16:42,880 Speaker 1: standing hurdle, it isn't clear whether they would succeed in 250 00:16:43,000 --> 00:16:46,680 Speaker 1: getting a restraining order or injunction, but if they did, 251 00:16:46,720 --> 00:16:51,120 Speaker 1: that would certainly delay forgiveness. And then ultimately, though I 252 00:16:51,160 --> 00:16:56,320 Speaker 1: think they would probably succeed in getting a permanent blocked 253 00:16:56,320 --> 00:16:59,440 Speaker 1: to it if it reached high enough the level of 254 00:16:59,440 --> 00:17:02,440 Speaker 1: a court. Because of the reasons that we just discussed. 255 00:17:02,680 --> 00:17:07,359 Speaker 1: So there are some procedural hurdles that they have to meet, 256 00:17:07,480 --> 00:17:10,960 Speaker 1: and if they can't establish legal standing, it doesn't matter 257 00:17:11,080 --> 00:17:15,200 Speaker 1: whether their arguments concerning the president's legal authority have married 258 00:17:15,280 --> 00:17:17,720 Speaker 1: or not. They won't be heard. They won't be considered. 259 00:17:18,200 --> 00:17:21,240 Speaker 1: Suppose that none of these groups can get restraining order 260 00:17:21,359 --> 00:17:24,960 Speaker 1: or temporary injunction, and suppose the plan goes forward and 261 00:17:25,119 --> 00:17:28,600 Speaker 1: loans are forgiven, and then Biden loses in court. Then 262 00:17:28,640 --> 00:17:33,400 Speaker 1: what happens, Well, there is a significant possibility that any 263 00:17:33,440 --> 00:17:37,200 Speaker 1: bar who already received forgiveness would get to keep it, 264 00:17:37,520 --> 00:17:40,719 Speaker 1: and the courts are reluctant to call back benefits like 265 00:17:40,800 --> 00:17:45,440 Speaker 1: that after the fact. So once the application becomes available, 266 00:17:45,600 --> 00:17:48,240 Speaker 1: it is in the bar's best interest to submit it 267 00:17:48,280 --> 00:17:52,560 Speaker 1: as soon as possible, because if they succeed in receiving forgiveness, 268 00:17:52,760 --> 00:17:55,720 Speaker 1: they might well get to keep it. Thanks Mark. That's 269 00:17:55,760 --> 00:17:59,320 Speaker 1: Mark Counterwits, an expert in student loans and financial aid. 270 00:18:01,480 --> 00:18:05,199 Speaker 1: A Fifth Circuit Appeals Court judge James Hoe says he 271 00:18:05,240 --> 00:18:08,480 Speaker 1: won't hire law clerks from Yale Law School in the future, 272 00:18:08,920 --> 00:18:13,040 Speaker 1: citing cancel culture. In a keynote address to Kentucky chapters 273 00:18:13,080 --> 00:18:16,720 Speaker 1: of the Conservative Federalist Society, the judge said, I don't 274 00:18:16,720 --> 00:18:20,280 Speaker 1: want to cancel Yale. I want Yale to stop canceling 275 00:18:20,320 --> 00:18:24,280 Speaker 1: people like me. Judge Hoe encourage students thinking about law 276 00:18:24,320 --> 00:18:27,680 Speaker 1: school to think about academic environments that will help them grow. 277 00:18:28,240 --> 00:18:32,200 Speaker 1: He graduated from the University of Chicago Law School, whose 278 00:18:32,280 --> 00:18:36,560 Speaker 1: unusual vow not to hire students from Yale is attracting 279 00:18:36,640 --> 00:18:41,080 Speaker 1: criticism from some judges, but others are joining his boycott. 280 00:18:41,920 --> 00:18:44,840 Speaker 1: My guest is Carl Tobias, a professor at the University 281 00:18:44,840 --> 00:18:48,240 Speaker 1: of Richmond Law School. Can you explain the reasons why 282 00:18:48,400 --> 00:18:54,760 Speaker 1: Judge Hoe is essentially blacklisting Yale students? Well, He says 283 00:18:54,880 --> 00:18:58,840 Speaker 1: himself that he's concerned about the lack of civility I 284 00:18:58,880 --> 00:19:04,359 Speaker 1: think at Yale especially where they are outside speakers who 285 00:19:04,480 --> 00:19:08,760 Speaker 1: come who might be pretty conservative politically, and I think 286 00:19:09,200 --> 00:19:13,720 Speaker 1: some incidents have happened at Yale that troubled him, and 287 00:19:13,840 --> 00:19:18,320 Speaker 1: so he has said he will not consider Yale students 288 00:19:18,359 --> 00:19:22,520 Speaker 1: going forward, which is unfortunately regrettable. As his colleague Jerry 289 00:19:22,520 --> 00:19:27,720 Speaker 1: Smith said, who is equally conservative, but says he enjoys 290 00:19:28,080 --> 00:19:31,800 Speaker 1: hiring the Yale clerks and they recent ones have been excellent. 291 00:19:32,520 --> 00:19:35,840 Speaker 1: So let me go back for a moment. Do most 292 00:19:35,960 --> 00:19:42,639 Speaker 1: conservative judges and conservative Supreme Court justices? Higher clerks who 293 00:19:42,720 --> 00:19:47,800 Speaker 1: are conservative, yes, to some extent, but not exclusively, and 294 00:19:48,560 --> 00:19:54,480 Speaker 1: judges whom everyone respects, like Justice Scalia, often wanted to 295 00:19:54,560 --> 00:19:59,360 Speaker 1: have what one clerk called counter clerks who took very 296 00:19:59,440 --> 00:20:03,400 Speaker 1: different news. And I think Professor Steinfeld, I think at 297 00:20:03,440 --> 00:20:07,200 Speaker 1: Michigan was saying he was such a clerk for Justice Scalian. 298 00:20:07,320 --> 00:20:11,840 Speaker 1: They hardly ever agreed on anything politically, but he enjoyed, 299 00:20:12,400 --> 00:20:15,800 Speaker 1: you know, the back and forth, and I think Justice 300 00:20:15,800 --> 00:20:19,520 Speaker 1: Scalia did too, And so it may be counter productive 301 00:20:19,640 --> 00:20:23,240 Speaker 1: to not have clerks, as many judges like to do, 302 00:20:23,320 --> 00:20:26,960 Speaker 1: who will take the opposite perspective from the judge and 303 00:20:27,040 --> 00:20:31,040 Speaker 1: sometimes went over the judge on the argument because looking 304 00:20:31,080 --> 00:20:33,920 Speaker 1: at it, mean it seems like very narrow minded to me, because, 305 00:20:33,960 --> 00:20:37,320 Speaker 1: to put in perspective, some of the Supreme Court's most 306 00:20:37,359 --> 00:20:44,200 Speaker 1: conservative conservatives went to Yale Clarence Thomas, Samuel Alito, Brett Kavanaugh, 307 00:20:44,800 --> 00:20:49,439 Speaker 1: Senator Josh Holly, very conservative JD. Vance, even Stewart Rose, 308 00:20:49,440 --> 00:20:52,040 Speaker 1: who the leader of the Oath Keepers, went to Yale. 309 00:20:52,359 --> 00:20:55,919 Speaker 1: So I mean, there are conservatives coming out of Yale, 310 00:20:56,119 --> 00:21:00,080 Speaker 1: and by doing this, the judges punishing them. Well, I 311 00:21:00,080 --> 00:21:02,800 Speaker 1: think that's true to some expense, and Judge Smith his 312 00:21:02,960 --> 00:21:05,680 Speaker 1: colleague on the Fifth Circuits that I'm happy to hire them, 313 00:21:05,800 --> 00:21:08,880 Speaker 1: please send more. And I think a number of judges 314 00:21:08,920 --> 00:21:12,679 Speaker 1: feel very similarly. So it is regrettable and unfortunate for 315 00:21:12,720 --> 00:21:15,880 Speaker 1: the school and Ford students and the judges who may 316 00:21:15,880 --> 00:21:19,920 Speaker 1: not take excellent students because of that. So I think 317 00:21:19,920 --> 00:21:25,280 Speaker 1: it is unfortunate should a judge be making comments like this. 318 00:21:26,119 --> 00:21:28,560 Speaker 1: You know, judges are supposed to speak to their opinions. 319 00:21:28,560 --> 00:21:32,400 Speaker 1: Should they be making comments like this about basically cultural 320 00:21:32,440 --> 00:21:36,560 Speaker 1: war issues. Well, I think Bloomberg actually had a news 321 00:21:36,680 --> 00:21:41,720 Speaker 1: article where one of your reporters quoted Arthur Hellman at Pittsburgh, 322 00:21:41,880 --> 00:21:46,600 Speaker 1: long established and well respected federal court scholar who even 323 00:21:46,680 --> 00:21:51,399 Speaker 1: raised the possibility that this would violate the canons. I 324 00:21:51,440 --> 00:21:54,320 Speaker 1: don't know whether that's true, but he is an expert 325 00:21:54,400 --> 00:21:59,199 Speaker 1: in he suggested that as a law professor, do you 326 00:21:59,240 --> 00:22:03,080 Speaker 1: think a student would ever turn down Yale Law School 327 00:22:03,119 --> 00:22:07,920 Speaker 1: if they were admitted because certain conservative judges would not 328 00:22:08,200 --> 00:22:12,200 Speaker 1: take them as clerks. I doubt. They probably have many, 329 00:22:12,200 --> 00:22:17,480 Speaker 1: many opportunities, and so it's really the judge's loss because 330 00:22:18,000 --> 00:22:22,680 Speaker 1: they received such a fine education and they're extremely well qualified, 331 00:22:23,119 --> 00:22:26,000 Speaker 1: and so they often write their own tickets anyway. But 332 00:22:26,160 --> 00:22:29,200 Speaker 1: many of them want to Clark, and so they would 333 00:22:29,520 --> 00:22:34,120 Speaker 1: could potentially lose that opportunity. The Senate has confirmed twenty 334 00:22:34,160 --> 00:22:38,320 Speaker 1: five of President Joe Biden's nominees to federal appellate courts 335 00:22:38,359 --> 00:22:42,320 Speaker 1: and fifty eight nominees to federal district courts, but thirteen 336 00:22:42,520 --> 00:22:46,840 Speaker 1: circuit and forty four district nominees await Senate action. So, 337 00:22:47,000 --> 00:22:50,760 Speaker 1: with the mid term outcome potentially changing the composition of 338 00:22:50,800 --> 00:22:55,440 Speaker 1: the Senate, progressives are pressing Democrats to expedite the judicial 339 00:22:55,480 --> 00:22:59,399 Speaker 1: nominations process. I've been talking to professor Carl Tobias of 340 00:22:59,400 --> 00:23:03,680 Speaker 1: a Universe Richmond Law School. So the Senate Judiciary Committee 341 00:23:03,720 --> 00:23:07,240 Speaker 1: is going to hold a hearing for judicial nominees during 342 00:23:07,240 --> 00:23:12,639 Speaker 1: the October recess. And progressive say that these are the 343 00:23:12,680 --> 00:23:16,600 Speaker 1: same tactics that Republicans used in the Trump era to 344 00:23:16,680 --> 00:23:21,040 Speaker 1: move nominations faster, But some like Senator Grassly says, no, 345 00:23:21,200 --> 00:23:26,280 Speaker 1: this isn't what Republicans did. Is this what Republicans did? Well? Yes, 346 00:23:26,480 --> 00:23:31,320 Speaker 1: and he was the Republican chaired the Judiciary Committee when 347 00:23:31,320 --> 00:23:36,480 Speaker 1: this happened in seen, but more pertinently in when Justice 348 00:23:36,560 --> 00:23:42,080 Speaker 1: Kavanaugh was a nominee and under consideration. I believed during 349 00:23:42,240 --> 00:23:48,000 Speaker 1: the recess that summer, there were two hearings um that 350 00:23:48,119 --> 00:23:52,960 Speaker 1: Grassly held when the Senate was in recess um and 351 00:23:53,080 --> 00:23:57,639 Speaker 1: one for sixth District nominees and an appellate nominee for 352 00:23:57,720 --> 00:24:01,879 Speaker 1: the second Circuit, And so they set the precedent. And 353 00:24:02,720 --> 00:24:07,560 Speaker 1: Chair Durban has been very meticulous about not going any 354 00:24:07,840 --> 00:24:13,920 Speaker 1: further than Republicans did UH during the Trump administration in 355 00:24:14,040 --> 00:24:18,960 Speaker 1: terms of changing precedent. And so he still is entitled 356 00:24:18,960 --> 00:24:23,680 Speaker 1: to at least one more in the session the recess 357 00:24:23,760 --> 00:24:28,400 Speaker 1: right now that they are currently in UH, and I 358 00:24:28,440 --> 00:24:33,080 Speaker 1: think he should consider that so, and the progressive groups 359 00:24:33,080 --> 00:24:37,600 Speaker 1: have also suggested he ought to hold hearings every week 360 00:24:37,680 --> 00:24:40,520 Speaker 1: instead of every two weeks which is the custom, as 361 00:24:40,560 --> 00:24:45,159 Speaker 1: well as have more nominees on the panels, so maybe 362 00:24:45,240 --> 00:24:49,000 Speaker 1: we would have uh four or five rather than just 363 00:24:49,200 --> 00:24:54,040 Speaker 1: three district nominees in each hearing. And he's resisted that 364 00:24:54,480 --> 00:24:56,960 Speaker 1: well to some extent, but he has four coming up 365 00:24:57,000 --> 00:25:01,520 Speaker 1: because he only has one pellet nominee on Wednesday, so 366 00:25:02,080 --> 00:25:08,720 Speaker 1: he's allowing for a fifth to be added there um, 367 00:25:08,760 --> 00:25:12,440 Speaker 1: which makes sense. But it's clear that some nominees will 368 00:25:12,480 --> 00:25:15,920 Speaker 1: not even have hearings, and the bottleneck when they come 369 00:25:15,920 --> 00:25:19,600 Speaker 1: back in the Lame Duck will be moving people through 370 00:25:19,640 --> 00:25:23,119 Speaker 1: committee because I think there are only twenty days I 371 00:25:23,280 --> 00:25:28,959 Speaker 1: counted after the four when they return before the end 372 00:25:29,000 --> 00:25:32,240 Speaker 1: of the year, given the holidays like Thanksgiving and Christmas 373 00:25:32,320 --> 00:25:35,120 Speaker 1: and New Year's when the Senate will be in session. 374 00:25:35,560 --> 00:25:40,240 Speaker 1: And so under this schedule that Chair Durban has followed, 375 00:25:41,080 --> 00:25:45,800 Speaker 1: at most there could be maybe two more hearings, and 376 00:25:45,960 --> 00:25:51,199 Speaker 1: there are many more nominees than can be accommodated in 377 00:25:51,240 --> 00:25:54,480 Speaker 1: two hearings who won't have had hearings by the end 378 00:25:54,520 --> 00:25:57,920 Speaker 1: of the year. Let's say the Republicans retake the Senate 379 00:25:58,840 --> 00:26:02,680 Speaker 1: in the lame duck and they hold up the committee 380 00:26:02,720 --> 00:26:06,040 Speaker 1: hearing by not showing up. Well, they could, but that 381 00:26:06,080 --> 00:26:12,320 Speaker 1: would be very extreme. If you remember, back in after 382 00:26:13,359 --> 00:26:21,000 Speaker 1: Biden had defeated Trump for the presidency, the Senate, controlled 383 00:26:21,000 --> 00:26:25,879 Speaker 1: by Republicans, then went on to confirm one appellate nominee 384 00:26:26,040 --> 00:26:30,359 Speaker 1: and thirteen district nominees during the lame duck session that 385 00:26:30,440 --> 00:26:35,159 Speaker 1: they conducted. And so I don't think this is just 386 00:26:35,280 --> 00:26:39,320 Speaker 1: a mid term lame duck that's coming up, and so 387 00:26:39,600 --> 00:26:46,480 Speaker 1: I don't see how Republicans can protest that actions should 388 00:26:46,480 --> 00:26:50,400 Speaker 1: Democrats lose the majority. So I you know, I would 389 00:26:50,480 --> 00:26:55,120 Speaker 1: encourage the Democrats to go forward and confirm as many 390 00:26:55,119 --> 00:26:59,760 Speaker 1: people as they can, regardless of whom wins a majority. 391 00:26:59,840 --> 00:27:04,480 Speaker 1: And by the way, we may not even know by 392 00:27:04,800 --> 00:27:08,600 Speaker 1: January who the majority of the Senate is because the 393 00:27:08,680 --> 00:27:12,040 Speaker 1: number of elections may be contested and be very close. 394 00:27:13,440 --> 00:27:17,440 Speaker 1: So have the Democrats. Have the Senate Democrats been prioritizing 395 00:27:17,480 --> 00:27:22,480 Speaker 1: circuit court nominees? Yes, they certainly have. Uh, if you've noticed, 396 00:27:22,960 --> 00:27:28,159 Speaker 1: since returning from the August recess, the only people confirmed 397 00:27:28,680 --> 00:27:33,919 Speaker 1: have been appellate nominees, and so they've been focused like 398 00:27:34,000 --> 00:27:37,240 Speaker 1: a laser on those and no district nominees have been 399 00:27:37,240 --> 00:27:41,200 Speaker 1: confirmed since back in the summer um I think August, 400 00:27:41,640 --> 00:27:45,200 Speaker 1: and so they're fifteen of them now on the floor 401 00:27:45,320 --> 00:27:48,040 Speaker 1: and they'll be more to come as soon as they 402 00:27:48,080 --> 00:27:53,840 Speaker 1: return in November. And not so many circuit nominees I believe. 403 00:27:54,440 --> 00:27:56,960 Speaker 1: I think there are five on the floor and then 404 00:27:57,080 --> 00:28:00,160 Speaker 1: there are a few others three or four more who 405 00:28:00,160 --> 00:28:03,360 Speaker 1: either have had hearings or in the process. So how 406 00:28:03,400 --> 00:28:08,159 Speaker 1: many circuit court openings are there? There are nine current 407 00:28:08,240 --> 00:28:13,520 Speaker 1: vacancies and seven future vacancies. With the calendar as it is, 408 00:28:14,000 --> 00:28:16,640 Speaker 1: are they likely to be able to fill those before 409 00:28:17,320 --> 00:28:20,359 Speaker 1: the end of the year, Probably not all of them, 410 00:28:20,400 --> 00:28:22,840 Speaker 1: but a number of them they will. Because five are 411 00:28:22,880 --> 00:28:26,679 Speaker 1: on the floor now, several more are likely to be 412 00:28:26,760 --> 00:28:31,439 Speaker 1: on the floor in November and then I think they 413 00:28:31,480 --> 00:28:35,359 Speaker 1: could be confirmed. There are only two I see who 414 00:28:35,480 --> 00:28:40,480 Speaker 1: have not had hearings. One will have one Wednesday, Anthony 415 00:28:40,560 --> 00:28:44,719 Speaker 1: Johnstone for the ninth Circuit of Montana. And then there 416 00:28:44,760 --> 00:28:48,640 Speaker 1: are two others Jabari Wombo for the ten circuit in 417 00:28:48,760 --> 00:28:52,320 Speaker 1: DeAndrea Benjamin for the fourth Circuit who have yet to 418 00:28:52,360 --> 00:28:55,520 Speaker 1: have hearings, and hopefully they'll have them in November, so 419 00:28:55,680 --> 00:28:58,680 Speaker 1: they could go through all of those, but there's still four, 420 00:28:58,760 --> 00:29:03,240 Speaker 1: I believe vacancies that have no nominees. Let's just talk 421 00:29:03,280 --> 00:29:07,200 Speaker 1: about some of the circuit court nominees who have been confirmed. 422 00:29:07,920 --> 00:29:12,880 Speaker 1: So former Public Defender Arianna Freeman yes, for the Third Circuit, 423 00:29:13,000 --> 00:29:16,520 Speaker 1: the first woman of color on the Third Circuit and 424 00:29:16,720 --> 00:29:21,720 Speaker 1: former federal public defender. She lost the vote first time 425 00:29:22,440 --> 00:29:26,240 Speaker 1: to fifty, but when everyone was there, subsequently she did 426 00:29:26,640 --> 00:29:31,560 Speaker 1: secure confirmation and they filled Justice Katangi Brown Jackson's spot 427 00:29:31,720 --> 00:29:36,200 Speaker 1: on the d C Circuit. Yes, Florence Pan who was 428 00:29:36,280 --> 00:29:42,640 Speaker 1: elevated from the DC Superior Court to Justice Jackson's District 429 00:29:42,640 --> 00:29:45,800 Speaker 1: Court seat when she was elevated to the DC Circuit, 430 00:29:46,120 --> 00:29:51,120 Speaker 1: and then it happened again when Justice Jackson went to 431 00:29:51,160 --> 00:29:54,480 Speaker 1: the Supreme Court, Florence Pan was elevated to the d 432 00:29:54,600 --> 00:29:58,640 Speaker 1: C Circuit from the d C District person to follow. Yes, 433 00:29:58,720 --> 00:30:03,400 Speaker 1: absolutely in Florence Pan is very well qualified and everyone 434 00:30:03,400 --> 00:30:08,120 Speaker 1: agrees and excellent addition to the Dcney Circuit. And so 435 00:30:08,240 --> 00:30:13,080 Speaker 1: what other circuit court nominees stand out to you? Well, 436 00:30:13,520 --> 00:30:16,960 Speaker 1: of course brad Garcia for the d C Circuit. He 437 00:30:17,120 --> 00:30:22,360 Speaker 1: is awaiting UH confirmation vote. And is very well qualified 438 00:30:22,960 --> 00:30:26,520 Speaker 1: and young for the d C Circuit, the second most 439 00:30:26,560 --> 00:30:31,520 Speaker 1: important court in the country. Then they're also on either 440 00:30:31,640 --> 00:30:36,760 Speaker 1: side of him. There too black magistrate judges Doris Prior 441 00:30:36,840 --> 00:30:40,440 Speaker 1: for the seventh Circuit and Dana Douglas for the Fifth Circuit, 442 00:30:40,840 --> 00:30:43,959 Speaker 1: who are waiting on the floor. So I think those 443 00:30:44,000 --> 00:30:48,440 Speaker 1: three will will come up. And then there's Tamika Montgomery 444 00:30:48,480 --> 00:30:52,520 Speaker 1: Reeves who sits on the Delaware Supreme Court and Cindy 445 00:30:52,600 --> 00:30:55,080 Speaker 1: Chung who is U S Attorney for the Western District 446 00:30:55,080 --> 00:30:59,600 Speaker 1: of Pennsylvania. They are both on the floor third Circuit nominees, 447 00:30:59,840 --> 00:31:03,480 Speaker 1: and they are both women of color and very qualified 448 00:31:03,920 --> 00:31:06,840 Speaker 1: and had strong support. And then there's some others who 449 00:31:06,920 --> 00:31:11,920 Speaker 1: are somewhat more controversial. UM, and we're waiting to see 450 00:31:12,680 --> 00:31:16,600 Speaker 1: what will happen. Nancy A. Voodoo needs a discharge vote 451 00:31:16,640 --> 00:31:18,360 Speaker 1: because she had a tie vote and committee for the 452 00:31:18,400 --> 00:31:24,360 Speaker 1: eleventh Circuit. Rachel bloom Cats for the sixth Circuit, I 453 00:31:24,400 --> 00:31:27,680 Speaker 1: think is not yet on the floor. And then Julie 454 00:31:27,720 --> 00:31:31,680 Speaker 1: Rickelman has only had a hearing, hasn't yet gone before 455 00:31:31,720 --> 00:31:36,560 Speaker 1: the committee for a vote. What makes them controversial? It varies. 456 00:31:36,680 --> 00:31:40,320 Speaker 1: For example, UM, I think it was the kind of 457 00:31:40,360 --> 00:31:46,800 Speaker 1: cases that Voodoo and boom Cats and Rickelman, who represented 458 00:31:47,320 --> 00:31:53,160 Speaker 1: the opponents in Dobbs, who basically said Dobbs was wrong. 459 00:31:53,240 --> 00:31:58,160 Speaker 1: We decided Um and Rickman argued before the court in 460 00:31:58,320 --> 00:32:04,600 Speaker 1: that case and number of other cases involving reproductive freedom. 461 00:32:04,880 --> 00:32:07,360 Speaker 1: Bloom Cats did a fair amount of environmental work and 462 00:32:07,560 --> 00:32:13,960 Speaker 1: some I think voter rights cases that some GOP senators 463 00:32:14,000 --> 00:32:16,840 Speaker 1: were concerned about. A Boodhoo, I think, did a fair 464 00:32:16,880 --> 00:32:22,160 Speaker 1: amount of federal defender kind of work. Mostly I think 465 00:32:22,240 --> 00:32:25,480 Speaker 1: under the auspices of the Southern Poverty Law Center. There's 466 00:32:25,480 --> 00:32:30,200 Speaker 1: a nominee for a district court position in Washington that 467 00:32:30,240 --> 00:32:33,760 Speaker 1: would be only one of a handful of federal judges 468 00:32:34,200 --> 00:32:39,840 Speaker 1: who have a disability. Yes, in Washington State, you're correct, 469 00:32:40,520 --> 00:32:43,800 Speaker 1: Jamal Whitehead I think is his name, and he's had 470 00:32:43,840 --> 00:32:49,920 Speaker 1: a hearing and Bloomberg reported on that piece about how 471 00:32:50,080 --> 00:32:56,680 Speaker 1: few people with disabilities or conditions physical or mental are 472 00:32:56,800 --> 00:33:01,080 Speaker 1: on the federal bench. Um and I think partly talking 473 00:33:01,120 --> 00:33:05,520 Speaker 1: about the perhaps the stigma that attaches UM, but we 474 00:33:05,560 --> 00:33:09,320 Speaker 1: do have a number of serving federal judges and Um 475 00:33:09,400 --> 00:33:12,440 Speaker 1: Whitehead will be a fine edition to sit on the 476 00:33:12,480 --> 00:33:15,320 Speaker 1: Western District of Washington and Seattle, and he had a 477 00:33:15,400 --> 00:33:18,640 Speaker 1: hearing and I think that very well, so he will 478 00:33:18,680 --> 00:33:23,000 Speaker 1: be confirmed. We've talked before about the Biden administration trying 479 00:33:23,000 --> 00:33:26,840 Speaker 1: to not only open up the judiciary to you know, 480 00:33:26,960 --> 00:33:31,320 Speaker 1: racial diversity, but also diversity in their prior jobs, more 481 00:33:31,360 --> 00:33:35,280 Speaker 1: federal politic defenders, civil rights attorneys, etcetera. Are they also 482 00:33:35,400 --> 00:33:39,880 Speaker 1: trying to open up the judiciary to more judges with 483 00:33:39,920 --> 00:33:43,800 Speaker 1: disabilities or was this just happen to be No. I 484 00:33:43,840 --> 00:33:48,680 Speaker 1: think they are when they can uh and have an opportunity. 485 00:33:48,720 --> 00:33:50,920 Speaker 1: And I think of you know a number of lawyers 486 00:33:51,000 --> 00:33:56,040 Speaker 1: who are quite good. UM, lawyers do have some kind 487 00:33:56,160 --> 00:34:02,160 Speaker 1: of disability of some sort. And so the periential diversity 488 00:34:02,200 --> 00:34:08,000 Speaker 1: that Biden has orchestrated has been incredible in terms, as 489 00:34:08,000 --> 00:34:11,000 Speaker 1: you suggest, of the types of people. I mean, for 490 00:34:11,040 --> 00:34:16,080 Speaker 1: a long time in democratic and republic administrations, UM, we 491 00:34:16,120 --> 00:34:21,680 Speaker 1: have had mostly former federal and state prosecutors and people 492 00:34:21,760 --> 00:34:27,200 Speaker 1: from big law firms, mostly defense counsel in civil matters. UM. 493 00:34:27,480 --> 00:34:31,239 Speaker 1: So it's refreshing to have and that kind of diversity 494 00:34:31,960 --> 00:34:37,680 Speaker 1: is important, UM to have federal public defenders, state public defenders, 495 00:34:38,200 --> 00:34:41,320 Speaker 1: people who, as you suggest, to consumer law, legal aid 496 00:34:42,440 --> 00:34:48,200 Speaker 1: representing all kinds of of people in disputes who may 497 00:34:48,239 --> 00:34:50,640 Speaker 1: have a different perspective, and that could be good for 498 00:34:50,680 --> 00:34:54,880 Speaker 1: the judicial decision making process. UH inspires confidence in the 499 00:34:54,920 --> 00:34:57,520 Speaker 1: courts on the part of the public and people who 500 00:34:57,520 --> 00:35:00,759 Speaker 1: are involved in federal litigation. So I think those are 501 00:35:00,800 --> 00:35:06,400 Speaker 1: all valuable attributes that these nominees Brick Carl, do you 502 00:35:06,440 --> 00:35:10,399 Speaker 1: have the number so far of appointees of Biden appointees 503 00:35:10,400 --> 00:35:12,520 Speaker 1: to the circuit courts and the district courts? Do you 504 00:35:12,520 --> 00:35:16,240 Speaker 1: know the number? Yes, I do. UM to the appeals courts, 505 00:35:16,320 --> 00:35:20,560 Speaker 1: we have twenty five and to the district courts we 506 00:35:20,600 --> 00:35:23,839 Speaker 1: have fifty eight. And where does that put him as 507 00:35:23,880 --> 00:35:27,719 Speaker 1: far as other presidents until recently, I think he was 508 00:35:27,760 --> 00:35:31,640 Speaker 1: setting records for the first two years. Because of this 509 00:35:31,840 --> 00:35:36,120 Speaker 1: recess necessitated by the campaigning. In the close nature of 510 00:35:36,160 --> 00:35:41,440 Speaker 1: the Senate UM, he won't do as well as he 511 00:35:41,520 --> 00:35:43,759 Speaker 1: might have if the Senate had stayed in They were 512 00:35:43,760 --> 00:35:47,000 Speaker 1: supposed to work two weeks in October, and that didn't happen. 513 00:35:47,040 --> 00:35:51,000 Speaker 1: They just canceled that UM, and so he would still 514 00:35:51,040 --> 00:35:55,759 Speaker 1: be relatively competitive with a number of recent presidents. I think, 515 00:35:55,840 --> 00:36:01,279 Speaker 1: still many more than Obama appointed, but probably closer to 516 00:36:01,400 --> 00:36:04,759 Speaker 1: maybe Bush and Clinton in terms of numbers, though I 517 00:36:04,840 --> 00:36:08,880 Speaker 1: think the second year of Clinton they pointed something like 518 00:36:08,920 --> 00:36:12,399 Speaker 1: a hundred and thirteen and Biden was share of judiciary then, 519 00:36:12,480 --> 00:36:15,360 Speaker 1: so he deserved some credit for that. But they really 520 00:36:15,360 --> 00:36:18,920 Speaker 1: moved people that second year. UH, and Trump moved very quickly, 521 00:36:18,920 --> 00:36:22,160 Speaker 1: you know once um, once they got into the second year, 522 00:36:22,920 --> 00:36:26,640 Speaker 1: especially on the appeals courts with fifty four total and 523 00:36:26,800 --> 00:36:31,040 Speaker 1: Obama only had fifty five total UM in his eight 524 00:36:31,160 --> 00:36:34,840 Speaker 1: years and Trump, you know, had one less in his 525 00:36:35,000 --> 00:36:38,960 Speaker 1: four years. Well, Obama was the problem, you know, the 526 00:36:39,000 --> 00:36:42,319 Speaker 1: pace of the White House proposing nominees, or was it 527 00:36:42,760 --> 00:36:46,480 Speaker 1: center Mitch McConnell holding things up. It was a combination. 528 00:36:46,680 --> 00:36:51,640 Speaker 1: I think the Obama administration started very slowly. UM the 529 00:36:51,719 --> 00:36:56,560 Speaker 1: first year only I think confirmed three appellate and nine 530 00:36:56,760 --> 00:37:01,560 Speaker 1: district UH. It was accelerated substantilly after that, but could 531 00:37:01,600 --> 00:37:05,640 Speaker 1: never catch up then, as you suggest, at the end 532 00:37:07,600 --> 00:37:12,600 Speaker 1: only UH, primarily at the instigation of McConnell, who also 533 00:37:12,719 --> 00:37:18,480 Speaker 1: blocked for all of the Marrick Garland to the Supreme Court, 534 00:37:19,320 --> 00:37:26,399 Speaker 1: only twenty UH judges were confirmed in UH. McConnell and 535 00:37:27,239 --> 00:37:31,960 Speaker 1: Grassley just delayed them horribly. And it was the fewest 536 00:37:32,200 --> 00:37:37,320 Speaker 1: appointees since Harry Truman's time in that that two year span. 537 00:37:37,800 --> 00:37:40,680 Speaker 1: And so that's uh. And that allowed Trump to then 538 00:37:40,719 --> 00:37:43,520 Speaker 1: walk in and have a hundred five vacancies he could fill. 539 00:37:44,680 --> 00:37:46,359 Speaker 1: I just before I let you go, I wanted to 540 00:37:46,400 --> 00:37:51,840 Speaker 1: ask you your reaction to the way now new Supreme 541 00:37:51,840 --> 00:37:56,480 Speaker 1: Court Justice Katangi Brown Jackson took on her first two 542 00:37:56,640 --> 00:38:00,680 Speaker 1: oral arguments, she kind of just jumped in and actually 543 00:38:00,719 --> 00:38:04,520 Speaker 1: she spoke more than any other justice in those arguments. Well, 544 00:38:04,560 --> 00:38:08,400 Speaker 1: I think she was ready to roll. She had already, 545 00:38:08,680 --> 00:38:11,640 Speaker 1: you know, had a decade on almost on the district 546 00:38:11,640 --> 00:38:15,279 Speaker 1: bench in brief tenure on the DC Circuit, and we 547 00:38:15,440 --> 00:38:21,279 Speaker 1: stood criticism in her hearing and performed very professionally. And 548 00:38:21,360 --> 00:38:25,880 Speaker 1: she's ready and quite able and showed it in the 549 00:38:26,000 --> 00:38:29,280 Speaker 1: first arguments that I expect we'll see much more, especially 550 00:38:29,320 --> 00:38:31,640 Speaker 1: this term, and we'll see how her week two on 551 00:38:31,680 --> 00:38:34,959 Speaker 1: the bench goes. Thanks so much, Carl. That's Professor Carl 552 00:38:35,040 --> 00:38:38,479 Speaker 1: Tobias of the University of Richmond Law School. And that's 553 00:38:38,480 --> 00:38:41,120 Speaker 1: it for this edition of the Bloomberg Law Show. Remember 554 00:38:41,160 --> 00:38:43,200 Speaker 1: you can always get the latest legal news on our 555 00:38:43,239 --> 00:38:47,360 Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 556 00:38:47,600 --> 00:38:52,640 Speaker 1: and at www dot bloomberg dot com, slash podcast, slash Law. 557 00:38:52,920 --> 00:38:55,600 Speaker 1: I'm June Grosso and you're listening to Bloomberg