WEBVTT - Chief Judge Asks for Investigation Into Judicial Vacancy

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<v Speaker 1>You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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<v Speaker 1>On the eve of an already contentious Senate hearing for

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<v Speaker 1>a nominee to the d C Circuit Court of Appeals,

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<v Speaker 1>the chief judge of that court is asking Chief Justice

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<v Speaker 1>John Roberts to have another circuit court investigate just how

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<v Speaker 1>that seat became vacant. Following a New York Times report

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<v Speaker 1>that Senator Mitch McConnell had been contacting appellate court judges

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<v Speaker 1>nominated by Republican presidents to urge them to retire, the

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<v Speaker 1>organization Demand Justice requested an investigation into whether McConnell had

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<v Speaker 1>persuaded d C Circuit Court Judge Thomas Griffith to open

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<v Speaker 1>his seat for McConnell's thirty seven year old protege, Judge

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<v Speaker 1>Justin Walker. Joining me is Carl Tobias, professor at the

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<v Speaker 1>University of Richmond Law School. So, Carl, how unusual is

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<v Speaker 1>it for the chief judge of a federal appeals court

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<v Speaker 1>to ask the chief justice for an investigation? It is unusual. Well,

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<v Speaker 1>but Judge Street of Austin is being very cautious, because,

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<v Speaker 1>of course Justin Walker would be a colleague on the

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<v Speaker 1>same court, and I think that's the reason he's asked

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<v Speaker 1>Chief Justice Roberts to reassign this to another judicial circuit.

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<v Speaker 1>It has happened before, you might remember, with the then

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<v Speaker 1>Chief Judge of the Ninth Circuit in the last decade

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<v Speaker 1>or so. That's the only instance I can remember, of course,

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<v Speaker 1>in the Chief Judge decided to ask the Chief Justice

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<v Speaker 1>to not have the Ninth Circuit undertaken investigation, so that

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<v Speaker 1>exactly what happened there. I think it was assigned to

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<v Speaker 1>the Third Circuit, and I assumed Chief Justice Roberts will

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<v Speaker 1>do the same here in this situation. Still, it's an

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<v Speaker 1>important inquiry, and really it's not so much about Judge Griffith,

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<v Speaker 1>who was assuming senior status on the DC Circuit, but

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<v Speaker 1>rather whether the Majority Leader McConnell has somehow across an

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<v Speaker 1>ethics line and suggested that Judge Griffith and others retire

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<v Speaker 1>early for right away so that President Trump can nominate replacements.

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<v Speaker 1>Wouldn't it be a violation of judicial ethics as opposed

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<v Speaker 1>to Mitch McConnell, I don't know what the violation would

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<v Speaker 1>be there. Well, I think that someone in the Senate

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<v Speaker 1>and certainly the majority leaders cannot pressure, for example, uh,

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<v Speaker 1>someone who's on the bench to change his or her status.

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<v Speaker 1>But you're correct that if something were promised to a

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<v Speaker 1>federal judge in terms of retirement or assuming senior status

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<v Speaker 1>by someone who was in the Senate uh than and

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<v Speaker 1>the judge m acceded to that, then that would raise

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<v Speaker 1>serious questions. Um, we'll have to see. It was relatively

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<v Speaker 1>short notice, but again we'll have to see what the

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<v Speaker 1>investigation shows. Chief Judge Triney Vassen said he made the

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<v Speaker 1>ruling without investigating the question that had been raised. Will

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<v Speaker 1>Chief Justice Roberts definitely assign this to another circuit court

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<v Speaker 1>for an investigation or might he take it under advisement

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<v Speaker 1>and then decide not to My sense of what he's

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<v Speaker 1>done in the past is that he UH, as with

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<v Speaker 1>the Ninth Circuit and in other similar situations, he is

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<v Speaker 1>more likely to send it along to another circuit and

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<v Speaker 1>have its judicial counsel then moved forward on the complaint,

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<v Speaker 1>as it would with any other complaints. UH. And so

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<v Speaker 1>I think it's unlikely it's possible, but more likely he'll

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<v Speaker 1>send it along to some other circuits, maybe the second,

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<v Speaker 1>maybe the third, or any other Circuit Council around the country.

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<v Speaker 1>The nominee, the Trump nomine Actually he hasn't been nominated yet,

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<v Speaker 1>has he. Carl So The Trump nominee, Justin Walker is

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<v Speaker 1>a protege of McConnell's, whom the ABA found unqualified for

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<v Speaker 1>his currency seat on a district court in Kentucky, where

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<v Speaker 1>he's only served about six months. Did he jump the line,

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<v Speaker 1>so to speak? Did he leap frog over other candidates? Yes,

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<v Speaker 1>but the Senate has been doing this throughout Trump administration.

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<v Speaker 1>With the fifty one appellate court nominees confirmed, they have

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<v Speaker 1>leap fragu and take precedence over the district court nominees.

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<v Speaker 1>That's why we have seventy four district nominees and half

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<v Speaker 1>had as many as a hundred and fifties during the

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<v Speaker 1>Trump administration because they focused like a laser on the

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<v Speaker 1>appeals courts and have now only one vacant he left

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<v Speaker 1>out of seventy nine judges, and so we shouldn't be surprised.

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<v Speaker 1>The fact of the matter is twenty people have been

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<v Speaker 1>nominated before Walker for the DC Circuit and he's leapfrogged

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<v Speaker 1>all of them. But that's the priority that the majority

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<v Speaker 1>leader can set in running the Senate, and he's done

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<v Speaker 1>that with a vengeance throughout Trump's administration. The Washington Post

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<v Speaker 1>reported that the White House was considering Walker for the

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<v Speaker 1>seat long before Griffith announced retirement. Well, it's certainly possible.

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<v Speaker 1>Leonard Leo is the legal advisor on judicial selection to

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<v Speaker 1>the President, who was executive vice president and still coaching

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<v Speaker 1>of the Federalist Society, and he has enormous influence in

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<v Speaker 1>this administration, especially on Appellate Court and Supreme Court appointment.

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<v Speaker 1>And so it shouldn't be surprising that this has gone on.

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<v Speaker 1>And apparently Senator McConnell as Judge Walker over to meet

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<v Speaker 1>with the President before he was nominated, and again that's

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<v Speaker 1>not usually done, but Senator McDonald thought it a good idea.

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<v Speaker 1>I've been talking to Professor Carl Tobias of the University

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<v Speaker 1>of Richmond about the chief Judge of the d C

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<v Speaker 1>Circuit asking the chief justice of a Supreme Court to

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<v Speaker 1>ask another circuit court to investigate allegations that Senator Mitch

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<v Speaker 1>McConnell pressured a federal Circuit Court judge to retire early.

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<v Speaker 1>So you said that Senator McConnell has been laser focused

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<v Speaker 1>on the appellate courts. He's also been laser focused on

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<v Speaker 1>the d C Appellate Court. Explain why that court in

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<v Speaker 1>particular is focused on and are the nominations there especially

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<v Speaker 1>partisan in an already partisan time. The answer is yes.

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<v Speaker 1>The reason is and everyone considers it to be the

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<v Speaker 1>second most important court in the country because of the

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<v Speaker 1>kind of cases it gets. On the hand, which are

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<v Speaker 1>critically important. Half of the docket is administrative appeals, and

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<v Speaker 1>they often involve decisions with the p A or f

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<v Speaker 1>d A or federal agencies that have consequences billions of dollars,

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<v Speaker 1>public health, safety, and welfare, kinds of issues that have

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<v Speaker 1>enormous consequences for businesses and individuals in the country. Secondly,

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<v Speaker 1>it's been the springboard for many recent and passed appointees

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<v Speaker 1>to the US Supreme Court, most recently of course Justice Kavanaugh,

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<v Speaker 1>but before him, Ruth Vader Ginsberg, Justice Scalia H and

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<v Speaker 1>many others. And so for all those reasons, it is

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<v Speaker 1>considered to be an extremely important court. Presently, I believe

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<v Speaker 1>out of the active judges, they're quite a few more

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<v Speaker 1>judge is appointed by Democratic presidents than Republican presidents, and

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<v Speaker 1>so it would be helpful. But again here won't change

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<v Speaker 1>that balance, which I believe the seven four because you're

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<v Speaker 1>replacing a city Republican appointees Judge Griffiths. So again Walker's

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<v Speaker 1>thirty seven or thirty eight and Judge Griffiths is in

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<v Speaker 1>his sixties, so Walker, of course, if confirmed, would serve

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<v Speaker 1>probably thirty forty years. So Democrats on the Senate Judiciary

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<v Speaker 1>Committee have blasted the upcoming hearing tomorrow, said that now

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<v Speaker 1>is not the time to process routine judicial appointments, and

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<v Speaker 1>they've asked for a delay until the panel can address

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<v Speaker 1>issues related to the pandemic. Is that likely to go

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<v Speaker 1>over with the Senate Judiciary Chair It has been so far.

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<v Speaker 1>Um they haven't formally announced the names of the nominees

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<v Speaker 1>for tomorrow's hearing when last I checked. But the letter

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<v Speaker 1>went from I think all Democratic members of that committee

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<v Speaker 1>last week to Senator Graham, the chair, asking him to

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<v Speaker 1>postponent and then listing a whole number of coronavirus related

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<v Speaker 1>issues that the committee could and should take up. And

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<v Speaker 1>there has been no response. Get the posting a week

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<v Speaker 1>ago or last Wednesday saying there would be a hearing

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<v Speaker 1>on nominations. And so there are alternatives uh, and much

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<v Speaker 1>more pressing issues than firming nominees. So Democrats are concerned

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<v Speaker 1>about that, but Graham has not been very responsive to

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<v Speaker 1>their quest. There are some nominees to fill district court spots,

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<v Speaker 1>which McConnell hasn't spent that much time on. So tell

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<v Speaker 1>us about the new nominees for the district court spots. Well,

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<v Speaker 1>there are many, and they're all around the country. UM,

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<v Speaker 1>as I said, leap frog twenty or so who are

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<v Speaker 1>waiting to the process um and to have their hearings

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<v Speaker 1>and committee votes. They're from everywhere. UM. There Especially important

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<v Speaker 1>are more than something around a dozen or so from California,

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<v Speaker 1>which has seventeen district court emergencies and the administration has

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<v Speaker 1>yet to confirm one of those. So that's an example, um,

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<v Speaker 1>either ten on this or more on the Central and

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<v Speaker 1>Southern district of California who are awaiting hearings. Uh. Some

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<v Speaker 1>nominated as long ago and so that's a classic example.

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<v Speaker 1>But yesterday they sent over to the Senate two nominees

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<v Speaker 1>for New York vacancies who are well qualified. Uh. And

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<v Speaker 1>there have been others from from different parts of the country,

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<v Speaker 1>someone from Alabama, some one I think in Mississippi to

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<v Speaker 1>replace Jeff Wilson who has been nominated to the Fifth

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<v Speaker 1>Circuit uh And so they are from all around the

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<v Speaker 1>country h and many of them would fill emergency vacancies,

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<v Speaker 1>so it would be able to have their hearings and

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<v Speaker 1>move them through if possible. Uh and still their whole number,

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<v Speaker 1>like in the thirty five or so seats that don't

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<v Speaker 1>have any nominees at all. So are these nominees the

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<v Speaker 1>district court nominees? Are they nominees that will fly through

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<v Speaker 1>because Democrats and Republicans will agree on them. I think

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<v Speaker 1>a number of them are ones. As we've talked many

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<v Speaker 1>times before, all of the emphasis has been on the

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<v Speaker 1>red state nominees and vacancies and very little on the

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<v Speaker 1>Blue states. The Joursey has six emergency vacancies, no nominees,

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<v Speaker 1>and the entire Trump administration Washington States has five emergencies

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<v Speaker 1>out of seven vacancies, only two active judges there. Um

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<v Speaker 1>California situation I mentioned, Um Massachusetts. They're just a number

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<v Speaker 1>of these Blue states. Uh And so it would be

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<v Speaker 1>valuable if Trump would to nominate for those vacancies and

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<v Speaker 1>then send it to move them through though the GOP

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<v Speaker 1>talks a lot about regular order in the sentence, but

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<v Speaker 1>it doesn't follow regular order, as Justin Walker Tearing exemplifies.

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<v Speaker 1>And so that's the real problem. Whether there will be

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<v Speaker 1>time to to reach the nominees for blue states before

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<v Speaker 1>UM the election is not clear. I mean, for example,

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<v Speaker 1>the two New York nominees from yesterday, I believe for

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<v Speaker 1>the Southern district UM, I think both of the emergency vacancies,

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<v Speaker 1>but UM they will be at the back of the

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<v Speaker 1>queue in terms of the hearing committee votes for votes.

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<v Speaker 1>But can you blame the senators from those states as

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<v Speaker 1>much as anyone else for the delay in the district

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<v Speaker 1>court nominees. No, because I think senators like those from

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<v Speaker 1>New York Gillibrand and Schumer, Harris and Feinstein from California

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<v Speaker 1>have worked very closely with the White House to offer

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<v Speaker 1>a well qualified mainstream comedies that the White House been

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<v Speaker 1>very close to move on vose. Thanks Carl. That's Carl

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<v Speaker 1>Tobias at the University of Richmond Law School.