1 00:00:00,480 --> 00:00:05,720 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,280 --> 00:00:09,240 Speaker 1: On the eve of an already contentious Senate hearing for 3 00:00:09,320 --> 00:00:12,000 Speaker 1: a nominee to the d C Circuit Court of Appeals, 4 00:00:12,440 --> 00:00:15,680 Speaker 1: the chief judge of that court is asking Chief Justice 5 00:00:15,760 --> 00:00:19,640 Speaker 1: John Roberts to have another circuit court investigate just how 6 00:00:19,680 --> 00:00:23,239 Speaker 1: that seat became vacant. Following a New York Times report 7 00:00:23,280 --> 00:00:26,960 Speaker 1: that Senator Mitch McConnell had been contacting appellate court judges 8 00:00:27,160 --> 00:00:31,319 Speaker 1: nominated by Republican presidents to urge them to retire, the 9 00:00:31,440 --> 00:00:36,120 Speaker 1: organization Demand Justice requested an investigation into whether McConnell had 10 00:00:36,159 --> 00:00:40,160 Speaker 1: persuaded d C Circuit Court Judge Thomas Griffith to open 11 00:00:40,280 --> 00:00:44,120 Speaker 1: his seat for McConnell's thirty seven year old protege, Judge 12 00:00:44,200 --> 00:00:47,839 Speaker 1: Justin Walker. Joining me is Carl Tobias, professor at the 13 00:00:47,920 --> 00:00:52,120 Speaker 1: University of Richmond Law School. So, Carl, how unusual is 14 00:00:52,159 --> 00:00:55,000 Speaker 1: it for the chief judge of a federal appeals court 15 00:00:55,360 --> 00:01:00,520 Speaker 1: to ask the chief justice for an investigation? It is unusual. Well, 16 00:01:00,560 --> 00:01:05,360 Speaker 1: but Judge Street of Austin is being very cautious, because, 17 00:01:05,760 --> 00:01:08,200 Speaker 1: of course Justin Walker would be a colleague on the 18 00:01:08,280 --> 00:01:12,080 Speaker 1: same court, and I think that's the reason he's asked 19 00:01:12,120 --> 00:01:17,520 Speaker 1: Chief Justice Roberts to reassign this to another judicial circuit. 20 00:01:18,000 --> 00:01:21,760 Speaker 1: It has happened before, you might remember, with the then 21 00:01:21,880 --> 00:01:25,720 Speaker 1: Chief Judge of the Ninth Circuit in the last decade 22 00:01:25,800 --> 00:01:29,440 Speaker 1: or so. That's the only instance I can remember, of course, 23 00:01:29,640 --> 00:01:33,200 Speaker 1: in the Chief Judge decided to ask the Chief Justice 24 00:01:33,319 --> 00:01:38,000 Speaker 1: to not have the Ninth Circuit undertaken investigation, so that 25 00:01:38,000 --> 00:01:40,440 Speaker 1: exactly what happened there. I think it was assigned to 26 00:01:40,440 --> 00:01:43,280 Speaker 1: the Third Circuit, and I assumed Chief Justice Roberts will 27 00:01:43,319 --> 00:01:46,480 Speaker 1: do the same here in this situation. Still, it's an 28 00:01:46,560 --> 00:01:51,640 Speaker 1: important inquiry, and really it's not so much about Judge Griffith, 29 00:01:51,720 --> 00:01:55,240 Speaker 1: who was assuming senior status on the DC Circuit, but 30 00:01:55,520 --> 00:02:00,880 Speaker 1: rather whether the Majority Leader McConnell has somehow across an 31 00:02:00,880 --> 00:02:06,320 Speaker 1: ethics line and suggested that Judge Griffith and others retire 32 00:02:06,480 --> 00:02:12,040 Speaker 1: early for right away so that President Trump can nominate replacements. 33 00:02:12,160 --> 00:02:16,760 Speaker 1: Wouldn't it be a violation of judicial ethics as opposed 34 00:02:16,760 --> 00:02:19,360 Speaker 1: to Mitch McConnell, I don't know what the violation would 35 00:02:19,400 --> 00:02:25,520 Speaker 1: be there. Well, I think that someone in the Senate 36 00:02:25,600 --> 00:02:31,480 Speaker 1: and certainly the majority leaders cannot pressure, for example, uh, 37 00:02:31,639 --> 00:02:36,839 Speaker 1: someone who's on the bench to change his or her status. 38 00:02:36,840 --> 00:02:43,520 Speaker 1: But you're correct that if something were promised to a 39 00:02:43,760 --> 00:02:48,760 Speaker 1: federal judge in terms of retirement or assuming senior status 40 00:02:49,240 --> 00:02:54,440 Speaker 1: by someone who was in the Senate uh than and 41 00:02:54,639 --> 00:02:59,880 Speaker 1: the judge m acceded to that, then that would raise 42 00:03:00,680 --> 00:03:06,280 Speaker 1: serious questions. Um, we'll have to see. It was relatively 43 00:03:06,320 --> 00:03:10,640 Speaker 1: short notice, but again we'll have to see what the 44 00:03:10,680 --> 00:03:15,600 Speaker 1: investigation shows. Chief Judge Triney Vassen said he made the 45 00:03:15,680 --> 00:03:21,239 Speaker 1: ruling without investigating the question that had been raised. Will 46 00:03:21,320 --> 00:03:26,080 Speaker 1: Chief Justice Roberts definitely assign this to another circuit court 47 00:03:26,160 --> 00:03:30,239 Speaker 1: for an investigation or might he take it under advisement 48 00:03:30,400 --> 00:03:33,160 Speaker 1: and then decide not to My sense of what he's 49 00:03:33,200 --> 00:03:36,800 Speaker 1: done in the past is that he UH, as with 50 00:03:36,920 --> 00:03:41,600 Speaker 1: the Ninth Circuit and in other similar situations, he is 51 00:03:42,080 --> 00:03:47,280 Speaker 1: more likely to send it along to another circuit and 52 00:03:47,360 --> 00:03:51,400 Speaker 1: have its judicial counsel then moved forward on the complaint, 53 00:03:51,520 --> 00:03:56,000 Speaker 1: as it would with any other complaints. UH. And so 54 00:03:56,520 --> 00:04:01,520 Speaker 1: I think it's unlikely it's possible, but more likely he'll 55 00:04:01,560 --> 00:04:05,040 Speaker 1: send it along to some other circuits, maybe the second, 56 00:04:05,200 --> 00:04:09,960 Speaker 1: maybe the third, or any other Circuit Council around the country. 57 00:04:10,200 --> 00:04:13,400 Speaker 1: The nominee, the Trump nomine Actually he hasn't been nominated yet, 58 00:04:13,400 --> 00:04:17,440 Speaker 1: has he. Carl So The Trump nominee, Justin Walker is 59 00:04:17,480 --> 00:04:22,120 Speaker 1: a protege of McConnell's, whom the ABA found unqualified for 60 00:04:22,200 --> 00:04:25,640 Speaker 1: his currency seat on a district court in Kentucky, where 61 00:04:25,640 --> 00:04:29,919 Speaker 1: he's only served about six months. Did he jump the line, 62 00:04:29,960 --> 00:04:33,960 Speaker 1: so to speak? Did he leap frog over other candidates? Yes, 63 00:04:34,080 --> 00:04:38,080 Speaker 1: but the Senate has been doing this throughout Trump administration. 64 00:04:38,560 --> 00:04:42,840 Speaker 1: With the fifty one appellate court nominees confirmed, they have 65 00:04:42,960 --> 00:04:46,480 Speaker 1: leap fragu and take precedence over the district court nominees. 66 00:04:46,520 --> 00:04:49,880 Speaker 1: That's why we have seventy four district nominees and half 67 00:04:49,880 --> 00:04:52,599 Speaker 1: had as many as a hundred and fifties during the 68 00:04:52,600 --> 00:04:56,120 Speaker 1: Trump administration because they focused like a laser on the 69 00:04:56,120 --> 00:05:00,599 Speaker 1: appeals courts and have now only one vacant he left 70 00:05:00,760 --> 00:05:05,880 Speaker 1: out of seventy nine judges, and so we shouldn't be surprised. 71 00:05:06,240 --> 00:05:09,719 Speaker 1: The fact of the matter is twenty people have been 72 00:05:09,720 --> 00:05:14,080 Speaker 1: nominated before Walker for the DC Circuit and he's leapfrogged 73 00:05:14,160 --> 00:05:18,120 Speaker 1: all of them. But that's the priority that the majority 74 00:05:18,240 --> 00:05:23,200 Speaker 1: leader can set in running the Senate, and he's done 75 00:05:23,200 --> 00:05:27,799 Speaker 1: that with a vengeance throughout Trump's administration. The Washington Post 76 00:05:27,920 --> 00:05:31,480 Speaker 1: reported that the White House was considering Walker for the 77 00:05:31,600 --> 00:05:37,240 Speaker 1: seat long before Griffith announced retirement. Well, it's certainly possible. 78 00:05:37,440 --> 00:05:41,240 Speaker 1: Leonard Leo is the legal advisor on judicial selection to 79 00:05:41,320 --> 00:05:45,159 Speaker 1: the President, who was executive vice president and still coaching 80 00:05:45,360 --> 00:05:49,279 Speaker 1: of the Federalist Society, and he has enormous influence in 81 00:05:49,320 --> 00:05:53,400 Speaker 1: this administration, especially on Appellate Court and Supreme Court appointment. 82 00:05:53,520 --> 00:05:57,200 Speaker 1: And so it shouldn't be surprising that this has gone on. 83 00:05:57,440 --> 00:06:02,960 Speaker 1: And apparently Senator McConnell as Judge Walker over to meet 84 00:06:03,080 --> 00:06:06,559 Speaker 1: with the President before he was nominated, and again that's 85 00:06:06,680 --> 00:06:10,400 Speaker 1: not usually done, but Senator McDonald thought it a good idea. 86 00:06:10,680 --> 00:06:13,560 Speaker 1: I've been talking to Professor Carl Tobias of the University 87 00:06:13,560 --> 00:06:15,960 Speaker 1: of Richmond about the chief Judge of the d C 88 00:06:16,240 --> 00:06:19,719 Speaker 1: Circuit asking the chief justice of a Supreme Court to 89 00:06:19,839 --> 00:06:24,000 Speaker 1: ask another circuit court to investigate allegations that Senator Mitch 90 00:06:24,080 --> 00:06:28,120 Speaker 1: McConnell pressured a federal Circuit Court judge to retire early. 91 00:06:28,760 --> 00:06:32,680 Speaker 1: So you said that Senator McConnell has been laser focused 92 00:06:32,720 --> 00:06:36,520 Speaker 1: on the appellate courts. He's also been laser focused on 93 00:06:36,680 --> 00:06:40,240 Speaker 1: the d C Appellate Court. Explain why that court in 94 00:06:40,320 --> 00:06:46,120 Speaker 1: particular is focused on and are the nominations there especially 95 00:06:46,240 --> 00:06:50,120 Speaker 1: partisan in an already partisan time. The answer is yes. 96 00:06:50,480 --> 00:06:53,479 Speaker 1: The reason is and everyone considers it to be the 97 00:06:53,560 --> 00:06:57,520 Speaker 1: second most important court in the country because of the 98 00:06:57,600 --> 00:07:00,800 Speaker 1: kind of cases it gets. On the hand, which are 99 00:07:00,839 --> 00:07:05,159 Speaker 1: critically important. Half of the docket is administrative appeals, and 100 00:07:05,240 --> 00:07:10,760 Speaker 1: they often involve decisions with the p A or f 101 00:07:10,880 --> 00:07:18,200 Speaker 1: d A or federal agencies that have consequences billions of dollars, 102 00:07:18,640 --> 00:07:24,280 Speaker 1: public health, safety, and welfare, kinds of issues that have 103 00:07:24,880 --> 00:07:31,880 Speaker 1: enormous consequences for businesses and individuals in the country. Secondly, 104 00:07:31,920 --> 00:07:38,600 Speaker 1: it's been the springboard for many recent and passed appointees 105 00:07:39,120 --> 00:07:45,480 Speaker 1: to the US Supreme Court, most recently of course Justice Kavanaugh, 106 00:07:45,640 --> 00:07:51,760 Speaker 1: but before him, Ruth Vader Ginsberg, Justice Scalia H and 107 00:07:51,880 --> 00:07:56,760 Speaker 1: many others. And so for all those reasons, it is 108 00:07:56,840 --> 00:08:01,960 Speaker 1: considered to be an extremely important court. Presently, I believe 109 00:08:02,040 --> 00:08:05,800 Speaker 1: out of the active judges, they're quite a few more 110 00:08:07,880 --> 00:08:14,240 Speaker 1: judge is appointed by Democratic presidents than Republican presidents, and 111 00:08:14,480 --> 00:08:18,640 Speaker 1: so it would be helpful. But again here won't change 112 00:08:18,640 --> 00:08:21,920 Speaker 1: that balance, which I believe the seven four because you're 113 00:08:21,920 --> 00:08:28,960 Speaker 1: replacing a city Republican appointees Judge Griffiths. So again Walker's 114 00:08:29,000 --> 00:08:32,200 Speaker 1: thirty seven or thirty eight and Judge Griffiths is in 115 00:08:32,280 --> 00:08:36,320 Speaker 1: his sixties, so Walker, of course, if confirmed, would serve 116 00:08:36,840 --> 00:08:42,239 Speaker 1: probably thirty forty years. So Democrats on the Senate Judiciary 117 00:08:42,320 --> 00:08:47,720 Speaker 1: Committee have blasted the upcoming hearing tomorrow, said that now 118 00:08:47,880 --> 00:08:52,160 Speaker 1: is not the time to process routine judicial appointments, and 119 00:08:52,200 --> 00:08:56,080 Speaker 1: they've asked for a delay until the panel can address 120 00:08:56,200 --> 00:08:59,440 Speaker 1: issues related to the pandemic. Is that likely to go 121 00:08:59,520 --> 00:09:05,800 Speaker 1: over with the Senate Judiciary Chair It has been so far. 122 00:09:06,840 --> 00:09:11,120 Speaker 1: Um they haven't formally announced the names of the nominees 123 00:09:11,160 --> 00:09:15,680 Speaker 1: for tomorrow's hearing when last I checked. But the letter 124 00:09:15,920 --> 00:09:19,239 Speaker 1: went from I think all Democratic members of that committee 125 00:09:19,440 --> 00:09:24,520 Speaker 1: last week to Senator Graham, the chair, asking him to 126 00:09:24,800 --> 00:09:30,200 Speaker 1: postponent and then listing a whole number of coronavirus related 127 00:09:30,400 --> 00:09:35,800 Speaker 1: issues that the committee could and should take up. And 128 00:09:36,000 --> 00:09:40,600 Speaker 1: there has been no response. Get the posting a week 129 00:09:40,640 --> 00:09:45,160 Speaker 1: ago or last Wednesday saying there would be a hearing 130 00:09:45,280 --> 00:09:49,800 Speaker 1: on nominations. And so there are alternatives uh, and much 131 00:09:49,840 --> 00:09:55,480 Speaker 1: more pressing issues than firming nominees. So Democrats are concerned 132 00:09:55,520 --> 00:09:59,000 Speaker 1: about that, but Graham has not been very responsive to 133 00:09:59,160 --> 00:10:04,640 Speaker 1: their quest. There are some nominees to fill district court spots, 134 00:10:04,640 --> 00:10:08,959 Speaker 1: which McConnell hasn't spent that much time on. So tell 135 00:10:09,040 --> 00:10:12,920 Speaker 1: us about the new nominees for the district court spots. Well, 136 00:10:12,960 --> 00:10:17,160 Speaker 1: there are many, and they're all around the country. UM, 137 00:10:17,200 --> 00:10:21,960 Speaker 1: as I said, leap frog twenty or so who are 138 00:10:22,800 --> 00:10:28,120 Speaker 1: waiting to the process um and to have their hearings 139 00:10:28,120 --> 00:10:35,199 Speaker 1: and committee votes. They're from everywhere. UM. There Especially important 140 00:10:35,440 --> 00:10:41,120 Speaker 1: are more than something around a dozen or so from California, 141 00:10:41,200 --> 00:10:46,959 Speaker 1: which has seventeen district court emergencies and the administration has 142 00:10:47,040 --> 00:10:53,040 Speaker 1: yet to confirm one of those. So that's an example, um, 143 00:10:53,440 --> 00:10:56,800 Speaker 1: either ten on this or more on the Central and 144 00:10:56,920 --> 00:11:02,280 Speaker 1: Southern district of California who are awaiting hearings. Uh. Some 145 00:11:02,440 --> 00:11:08,720 Speaker 1: nominated as long ago and so that's a classic example. 146 00:11:09,720 --> 00:11:14,040 Speaker 1: But yesterday they sent over to the Senate two nominees 147 00:11:14,160 --> 00:11:19,040 Speaker 1: for New York vacancies who are well qualified. Uh. And 148 00:11:19,840 --> 00:11:22,560 Speaker 1: there have been others from from different parts of the country, 149 00:11:22,640 --> 00:11:27,520 Speaker 1: someone from Alabama, some one I think in Mississippi to 150 00:11:27,600 --> 00:11:30,320 Speaker 1: replace Jeff Wilson who has been nominated to the Fifth 151 00:11:30,360 --> 00:11:34,040 Speaker 1: Circuit uh And so they are from all around the 152 00:11:34,040 --> 00:11:38,680 Speaker 1: country h and many of them would fill emergency vacancies, 153 00:11:38,720 --> 00:11:40,959 Speaker 1: so it would be able to have their hearings and 154 00:11:41,040 --> 00:11:44,839 Speaker 1: move them through if possible. Uh and still their whole number, 155 00:11:44,920 --> 00:11:48,280 Speaker 1: like in the thirty five or so seats that don't 156 00:11:48,320 --> 00:11:53,080 Speaker 1: have any nominees at all. So are these nominees the 157 00:11:53,120 --> 00:11:56,840 Speaker 1: district court nominees? Are they nominees that will fly through 158 00:11:56,920 --> 00:12:01,000 Speaker 1: because Democrats and Republicans will agree on them. I think 159 00:12:01,040 --> 00:12:04,880 Speaker 1: a number of them are ones. As we've talked many 160 00:12:04,880 --> 00:12:07,840 Speaker 1: times before, all of the emphasis has been on the 161 00:12:07,840 --> 00:12:12,400 Speaker 1: red state nominees and vacancies and very little on the 162 00:12:12,440 --> 00:12:16,480 Speaker 1: Blue states. The Joursey has six emergency vacancies, no nominees, 163 00:12:16,520 --> 00:12:21,280 Speaker 1: and the entire Trump administration Washington States has five emergencies 164 00:12:21,520 --> 00:12:26,760 Speaker 1: out of seven vacancies, only two active judges there. Um 165 00:12:27,000 --> 00:12:32,840 Speaker 1: California situation I mentioned, Um Massachusetts. They're just a number 166 00:12:32,920 --> 00:12:35,480 Speaker 1: of these Blue states. Uh And so it would be 167 00:12:35,559 --> 00:12:39,160 Speaker 1: valuable if Trump would to nominate for those vacancies and 168 00:12:39,200 --> 00:12:42,880 Speaker 1: then send it to move them through though the GOP 169 00:12:43,040 --> 00:12:45,280 Speaker 1: talks a lot about regular order in the sentence, but 170 00:12:45,480 --> 00:12:50,000 Speaker 1: it doesn't follow regular order, as Justin Walker Tearing exemplifies. 171 00:12:50,440 --> 00:12:54,280 Speaker 1: And so that's the real problem. Whether there will be 172 00:12:54,360 --> 00:12:58,880 Speaker 1: time to to reach the nominees for blue states before 173 00:12:59,760 --> 00:13:03,520 Speaker 1: UM the election is not clear. I mean, for example, 174 00:13:03,559 --> 00:13:07,520 Speaker 1: the two New York nominees from yesterday, I believe for 175 00:13:07,559 --> 00:13:12,080 Speaker 1: the Southern district UM, I think both of the emergency vacancies, 176 00:13:12,120 --> 00:13:14,199 Speaker 1: but UM they will be at the back of the 177 00:13:14,320 --> 00:13:17,319 Speaker 1: queue in terms of the hearing committee votes for votes. 178 00:13:17,720 --> 00:13:21,000 Speaker 1: But can you blame the senators from those states as 179 00:13:21,080 --> 00:13:24,680 Speaker 1: much as anyone else for the delay in the district 180 00:13:24,720 --> 00:13:29,920 Speaker 1: court nominees. No, because I think senators like those from 181 00:13:29,960 --> 00:13:35,360 Speaker 1: New York Gillibrand and Schumer, Harris and Feinstein from California 182 00:13:36,000 --> 00:13:40,480 Speaker 1: have worked very closely with the White House to offer 183 00:13:40,520 --> 00:13:44,800 Speaker 1: a well qualified mainstream comedies that the White House been 184 00:13:45,000 --> 00:13:48,120 Speaker 1: very close to move on vose. Thanks Carl. That's Carl 185 00:13:48,200 --> 00:13:50,440 Speaker 1: Tobias at the University of Richmond Law School.