Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: On the eve of an already contentious Senate hearing for
Speaker 1: a nominee to the d C Circuit Court of Appeals,
Speaker 1: the chief judge of that court is asking Chief Justice
Speaker 1: John Roberts to have another circuit court investigate just how
Speaker 1: that seat became vacant. Following a New York Times report
Speaker 1: that Senator Mitch McConnell had been contacting appellate court judges
Speaker 1: nominated by Republican presidents to urge them to retire, the
Speaker 1: organization Demand Justice requested an investigation into whether McConnell had
Speaker 1: persuaded d C Circuit Court Judge Thomas Griffith to open
Speaker 1: his seat for McConnell's thirty seven year old protege, Judge
Speaker 1: Justin Walker. Joining me is Carl Tobias, professor at the
Speaker 1: University of Richmond Law School. So, Carl, how unusual is
Speaker 1: it for the chief judge of a federal appeals court
Speaker 1: to ask the chief justice for an investigation? It is unusual. Well,
Speaker 1: but Judge Street of Austin is being very cautious, because,
Speaker 1: of course Justin Walker would be a colleague on the
Speaker 1: same court, and I think that's the reason he's asked
Speaker 1: Chief Justice Roberts to reassign this to another judicial circuit.
Speaker 1: It has happened before, you might remember, with the then
Speaker 1: Chief Judge of the Ninth Circuit in the last decade
Speaker 1: or so. That's the only instance I can remember, of course,
Speaker 1: in the Chief Judge decided to ask the Chief Justice
Speaker 1: to not have the Ninth Circuit undertaken investigation, so that
Speaker 1: exactly what happened there. I think it was assigned to
Speaker 1: the Third Circuit, and I assumed Chief Justice Roberts will
Speaker 1: do the same here in this situation. Still, it's an
Speaker 1: important inquiry, and really it's not so much about Judge Griffith,
Speaker 1: who was assuming senior status on the DC Circuit, but
Speaker 1: rather whether the Majority Leader McConnell has somehow across an
Speaker 1: ethics line and suggested that Judge Griffith and others retire
Speaker 1: early for right away so that President Trump can nominate replacements.
Speaker 1: Wouldn't it be a violation of judicial ethics as opposed
Speaker 1: to Mitch McConnell, I don't know what the violation would
Speaker 1: be there. Well, I think that someone in the Senate
Speaker 1: and certainly the majority leaders cannot pressure, for example, uh,
Speaker 1: someone who's on the bench to change his or her status.
Speaker 1: But you're correct that if something were promised to a
Speaker 1: federal judge in terms of retirement or assuming senior status
Speaker 1: by someone who was in the Senate uh than and
Speaker 1: the judge m acceded to that, then that would raise
Speaker 1: serious questions. Um, we'll have to see. It was relatively
Speaker 1: short notice, but again we'll have to see what the
Speaker 1: investigation shows. Chief Judge Triney Vassen said he made the
Speaker 1: ruling without investigating the question that had been raised. Will
Speaker 1: Chief Justice Roberts definitely assign this to another circuit court
Speaker 1: for an investigation or might he take it under advisement
Speaker 1: and then decide not to My sense of what he's
Speaker 1: done in the past is that he UH, as with
Speaker 1: the Ninth Circuit and in other similar situations, he is
Speaker 1: more likely to send it along to another circuit and
Speaker 1: have its judicial counsel then moved forward on the complaint,
Speaker 1: as it would with any other complaints. UH. And so
Speaker 1: I think it's unlikely it's possible, but more likely he'll
Speaker 1: send it along to some other circuits, maybe the second,
Speaker 1: maybe the third, or any other Circuit Council around the country.
Speaker 1: The nominee, the Trump nomine Actually he hasn't been nominated yet,
Speaker 1: has he. Carl So The Trump nominee, Justin Walker is
Speaker 1: a protege of McConnell's, whom the ABA found unqualified for
Speaker 1: his currency seat on a district court in Kentucky, where
Speaker 1: he's only served about six months. Did he jump the line,
Speaker 1: so to speak? Did he leap frog over other candidates? Yes,
Speaker 1: but the Senate has been doing this throughout Trump administration.
Speaker 1: With the fifty one appellate court nominees confirmed, they have
Speaker 1: leap fragu and take precedence over the district court nominees.
Speaker 1: That's why we have seventy four district nominees and half
Speaker 1: had as many as a hundred and fifties during the
Speaker 1: Trump administration because they focused like a laser on the
Speaker 1: appeals courts and have now only one vacant he left
Speaker 1: out of seventy nine judges, and so we shouldn't be surprised.
Speaker 1: The fact of the matter is twenty people have been
Speaker 1: nominated before Walker for the DC Circuit and he's leapfrogged
Speaker 1: all of them. But that's the priority that the majority
Speaker 1: leader can set in running the Senate, and he's done
Speaker 1: that with a vengeance throughout Trump's administration. The Washington Post
Speaker 1: reported that the White House was considering Walker for the
Speaker 1: seat long before Griffith announced retirement. Well, it's certainly possible.
Speaker 1: Leonard Leo is the legal advisor on judicial selection to
Speaker 1: the President, who was executive vice president and still coaching
Speaker 1: of the Federalist Society, and he has enormous influence in
Speaker 1: this administration, especially on Appellate Court and Supreme Court appointment.
Speaker 1: And so it shouldn't be surprising that this has gone on.
Speaker 1: And apparently Senator McConnell as Judge Walker over to meet
Speaker 1: with the President before he was nominated, and again that's
Speaker 1: not usually done, but Senator McDonald thought it a good idea.
Speaker 1: I've been talking to Professor Carl Tobias of the University
Speaker 1: of Richmond about the chief Judge of the d C
Speaker 1: Circuit asking the chief justice of a Supreme Court to
Speaker 1: ask another circuit court to investigate allegations that Senator Mitch
Speaker 1: McConnell pressured a federal Circuit Court judge to retire early.
Speaker 1: So you said that Senator McConnell has been laser focused
Speaker 1: on the appellate courts. He's also been laser focused on
Speaker 1: the d C Appellate Court. Explain why that court in
Speaker 1: particular is focused on and are the nominations there especially
Speaker 1: partisan in an already partisan time. The answer is yes.
Speaker 1: The reason is and everyone considers it to be the
Speaker 1: second most important court in the country because of the
Speaker 1: kind of cases it gets. On the hand, which are
Speaker 1: critically important. Half of the docket is administrative appeals, and
Speaker 1: they often involve decisions with the p A or f
Speaker 1: d A or federal agencies that have consequences billions of dollars,
Speaker 1: public health, safety, and welfare, kinds of issues that have
Speaker 1: enormous consequences for businesses and individuals in the country. Secondly,
Speaker 1: it's been the springboard for many recent and passed appointees
Speaker 1: to the US Supreme Court, most recently of course Justice Kavanaugh,
Speaker 1: but before him, Ruth Vader Ginsberg, Justice Scalia H and
Speaker 1: many others. And so for all those reasons, it is
Speaker 1: considered to be an extremely important court. Presently, I believe
Speaker 1: out of the active judges, they're quite a few more
Speaker 1: judge is appointed by Democratic presidents than Republican presidents, and
Speaker 1: so it would be helpful. But again here won't change
Speaker 1: that balance, which I believe the seven four because you're
Speaker 1: replacing a city Republican appointees Judge Griffiths. So again Walker's
Speaker 1: thirty seven or thirty eight and Judge Griffiths is in
Speaker 1: his sixties, so Walker, of course, if confirmed, would serve
Speaker 1: probably thirty forty years. So Democrats on the Senate Judiciary
Speaker 1: Committee have blasted the upcoming hearing tomorrow, said that now
Speaker 1: is not the time to process routine judicial appointments, and
Speaker 1: they've asked for a delay until the panel can address
Speaker 1: issues related to the pandemic. Is that likely to go
Speaker 1: over with the Senate Judiciary Chair It has been so far.
Speaker 1: Um they haven't formally announced the names of the nominees
Speaker 1: for tomorrow's hearing when last I checked. But the letter
Speaker 1: went from I think all Democratic members of that committee
Speaker 1: last week to Senator Graham, the chair, asking him to
Speaker 1: postponent and then listing a whole number of coronavirus related
Speaker 1: issues that the committee could and should take up. And
Speaker 1: there has been no response. Get the posting a week
Speaker 1: ago or last Wednesday saying there would be a hearing
Speaker 1: on nominations. And so there are alternatives uh, and much
Speaker 1: more pressing issues than firming nominees. So Democrats are concerned
Speaker 1: about that, but Graham has not been very responsive to
Speaker 1: their quest. There are some nominees to fill district court spots,
Speaker 1: which McConnell hasn't spent that much time on. So tell
Speaker 1: us about the new nominees for the district court spots. Well,
Speaker 1: there are many, and they're all around the country. UM,
Speaker 1: as I said, leap frog twenty or so who are
Speaker 1: waiting to the process um and to have their hearings
Speaker 1: and committee votes. They're from everywhere. UM. There Especially important
Speaker 1: are more than something around a dozen or so from California,
Speaker 1: which has seventeen district court emergencies and the administration has
Speaker 1: yet to confirm one of those. So that's an example, um,
Speaker 1: either ten on this or more on the Central and
Speaker 1: Southern district of California who are awaiting hearings. Uh. Some
Speaker 1: nominated as long ago and so that's a classic example.
Speaker 1: But yesterday they sent over to the Senate two nominees
Speaker 1: for New York vacancies who are well qualified. Uh. And
Speaker 1: there have been others from from different parts of the country,
Speaker 1: someone from Alabama, some one I think in Mississippi to
Speaker 1: replace Jeff Wilson who has been nominated to the Fifth
Speaker 1: Circuit uh And so they are from all around the
Speaker 1: country h and many of them would fill emergency vacancies,
Speaker 1: so it would be able to have their hearings and
Speaker 1: move them through if possible. Uh and still their whole number,
Speaker 1: like in the thirty five or so seats that don't
Speaker 1: have any nominees at all. So are these nominees the
Speaker 1: district court nominees? Are they nominees that will fly through
Speaker 1: because Democrats and Republicans will agree on them. I think
Speaker 1: a number of them are ones. As we've talked many
Speaker 1: times before, all of the emphasis has been on the
Speaker 1: red state nominees and vacancies and very little on the
Speaker 1: Blue states. The Joursey has six emergency vacancies, no nominees,
Speaker 1: and the entire Trump administration Washington States has five emergencies
Speaker 1: out of seven vacancies, only two active judges there. Um
Speaker 1: California situation I mentioned, Um Massachusetts. They're just a number
Speaker 1: of these Blue states. Uh And so it would be
Speaker 1: valuable if Trump would to nominate for those vacancies and
Speaker 1: then send it to move them through though the GOP
Speaker 1: talks a lot about regular order in the sentence, but
Speaker 1: it doesn't follow regular order, as Justin Walker Tearing exemplifies.
Speaker 1: And so that's the real problem. Whether there will be
Speaker 1: time to to reach the nominees for blue states before
Speaker 1: UM the election is not clear. I mean, for example,
Speaker 1: the two New York nominees from yesterday, I believe for
Speaker 1: the Southern district UM, I think both of the emergency vacancies,
Speaker 1: but UM they will be at the back of the
Speaker 1: queue in terms of the hearing committee votes for votes.
Speaker 1: But can you blame the senators from those states as
Speaker 1: much as anyone else for the delay in the district
Speaker 1: court nominees. No, because I think senators like those from
Speaker 1: New York Gillibrand and Schumer, Harris and Feinstein from California
Speaker 1: have worked very closely with the White House to offer
Speaker 1: a well qualified mainstream comedies that the White House been
Speaker 1: very close to move on vose. Thanks Carl. That's Carl
Speaker 1: Tobias at the University of Richmond Law School.