1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio. 2 00:00:09,039 --> 00:00:11,879 Speaker 1: This week, the Supreme Court tackled a case that could 3 00:00:11,880 --> 00:00:15,920 Speaker 1: further weaken the landmark Voting Rights Act. All six conservative 4 00:00:16,000 --> 00:00:20,560 Speaker 1: justices suggested they would back to Arizona ballot restrictions, while 5 00:00:20,600 --> 00:00:23,479 Speaker 1: exploring a possible middle ground on the standard that would 6 00:00:23,480 --> 00:00:27,800 Speaker 1: apply to future lawsuits. Justice Samuel Alito was one of 7 00:00:27,840 --> 00:00:31,440 Speaker 1: those expressing concern that any voting law could be vulnerable 8 00:00:31,520 --> 00:00:35,000 Speaker 1: to attack under Section two of the Act, people who 9 00:00:35,000 --> 00:00:40,120 Speaker 1: are poor and less well educated, on balance, probably will 10 00:00:41,000 --> 00:00:44,560 Speaker 1: find it more difficult to comply with just about every 11 00:00:44,640 --> 00:00:49,560 Speaker 1: voting rule than do people who are more affluent and 12 00:00:49,720 --> 00:00:53,320 Speaker 1: have had the benefit of more education. There was a 13 00:00:53,360 --> 00:00:57,520 Speaker 1: surprisingly candid answer from the lawyer for Arizona's Republican Party 14 00:00:57,760 --> 00:01:00,840 Speaker 1: to a question by Justice Amy Coney, are it what's 15 00:01:00,880 --> 00:01:04,120 Speaker 1: the interest of the Arizona RNC here in keeping say 16 00:01:04,240 --> 00:01:09,399 Speaker 1: the out of uh precinct um voters disqualification rules on 17 00:01:09,440 --> 00:01:13,200 Speaker 1: the books because it puts us at a competitive disadvantage 18 00:01:13,240 --> 00:01:16,600 Speaker 1: relative to Democrats. Politics is a zero sum game. Joining 19 00:01:16,600 --> 00:01:20,520 Speaker 1: me is elections law expert Richard Brofald, Professor, Columbia Law School, 20 00:01:20,959 --> 00:01:24,080 Speaker 1: rich tell us the significance of the Voting Rights Act 21 00:01:24,360 --> 00:01:28,520 Speaker 1: symbolically and legally so the Voting Rights Act initially dates 22 00:01:28,520 --> 00:01:31,480 Speaker 1: back to the nine and it was a landmark effort 23 00:01:31,600 --> 00:01:34,120 Speaker 1: on the part of the federal government to really, finally, 24 00:01:34,200 --> 00:01:38,160 Speaker 1: under a hundred years of serious voting discrimination, effectively kept 25 00:01:38,520 --> 00:01:42,080 Speaker 1: huge fractions of the black population and other minorities from voting. 26 00:01:42,200 --> 00:01:44,040 Speaker 1: There was a major step forward and actually making the 27 00:01:44,120 --> 00:01:46,280 Speaker 1: right to vote available to everybody. It was a very 28 00:01:46,360 --> 00:01:50,240 Speaker 1: significant amendment. Addituate in two, and that's really what the 29 00:01:50,360 --> 00:01:54,120 Speaker 1: argument dealt with, known as Section two, which basically said 30 00:01:54,120 --> 00:01:57,680 Speaker 1: that certain kinds of voting rules that have the effect 31 00:01:57,800 --> 00:02:01,680 Speaker 1: of discriminating against minorities, even if they're not inclearly intended 32 00:02:01,760 --> 00:02:04,280 Speaker 1: to do so, can also be challenged and struck down 33 00:02:04,600 --> 00:02:08,280 Speaker 1: where they have the aspect of denying minorities equal opportunities 34 00:02:08,320 --> 00:02:11,720 Speaker 1: participate in the political process. What's going on now and 35 00:02:11,760 --> 00:02:14,839 Speaker 1: really for the last ten years or more is kind 36 00:02:14,840 --> 00:02:17,680 Speaker 1: of the return of what people call vote denial. The 37 00:02:17,720 --> 00:02:21,280 Speaker 1: efforts to adopt laws which, although neutral on their face, 38 00:02:21,680 --> 00:02:24,560 Speaker 1: actually make it harder for people to vote, and in 39 00:02:24,600 --> 00:02:27,400 Speaker 1: particular make it harder for minorities to vote. Things like 40 00:02:27,520 --> 00:02:29,920 Speaker 1: voter or I D as one example of this maybe 41 00:02:30,000 --> 00:02:33,079 Speaker 1: what that's gotten the most attention, but there are other mechanisms. 42 00:02:33,120 --> 00:02:35,960 Speaker 1: And the big question the same court has not addressed 43 00:02:36,040 --> 00:02:40,560 Speaker 1: until now is what's the standard of proof? What needs 44 00:02:40,600 --> 00:02:43,440 Speaker 1: to be shown in order for plaintiffs who are challenging 45 00:02:43,480 --> 00:02:46,240 Speaker 1: one of these rules to say that this kind of 46 00:02:46,320 --> 00:02:49,880 Speaker 1: vote denial mechanism which will fare in its face or 47 00:02:49,919 --> 00:02:53,920 Speaker 1: neutraliance face it triggers a violation of Section two. What 48 00:02:54,000 --> 00:02:57,000 Speaker 1: did you hear from the justices? There's a lot of 49 00:02:57,040 --> 00:03:00,639 Speaker 1: concern that the standard adopted by the ninth sirt it simptis, 50 00:03:00,680 --> 00:03:03,320 Speaker 1: made it too easy for pointiffs to bring cases or 51 00:03:03,360 --> 00:03:05,680 Speaker 1: more of the point, made it too easy to challenge 52 00:03:05,880 --> 00:03:10,720 Speaker 1: pretty standard or widespread voting rules and kind of made 53 00:03:10,720 --> 00:03:13,280 Speaker 1: it too easy for minority pointiffs tojo win. I should 54 00:03:13,280 --> 00:03:15,080 Speaker 1: say that in this case was actually not brought by 55 00:03:15,120 --> 00:03:17,880 Speaker 1: minority group, who was brought by the Democratic Party. The 56 00:03:18,080 --> 00:03:22,959 Speaker 1: Justices pushed Arizona's lawyer about the dividing line between restrictions 57 00:03:23,000 --> 00:03:26,120 Speaker 1: that would be lawful and those that wouldn't be, and 58 00:03:26,240 --> 00:03:30,040 Speaker 1: so he said it was lawful to block voting on Sundays, 59 00:03:30,080 --> 00:03:33,200 Speaker 1: but not to force people to travel to country clubs 60 00:03:33,280 --> 00:03:37,440 Speaker 1: to vote. What did you glean from his responses? I 61 00:03:37,440 --> 00:03:40,480 Speaker 1: think that some of the argument of the challengers, they 62 00:03:40,520 --> 00:03:43,520 Speaker 1: were going pretty far to make the argument that spatially 63 00:03:43,560 --> 00:03:47,840 Speaker 1: neutral laws that basically that the procedures for voting simply 64 00:03:48,000 --> 00:03:51,480 Speaker 1: could not be challenged under Section two. And I think 65 00:03:51,520 --> 00:03:53,680 Speaker 1: these examples were designed to sort of push them to say, 66 00:03:53,720 --> 00:03:56,520 Speaker 1: do you really mean that? Aren't there some situations where, 67 00:03:56,760 --> 00:03:59,760 Speaker 1: given what the a G. Of Arizona acknowledge was that 68 00:04:00,000 --> 00:04:03,880 Speaker 1: ground demographic considerations that given those, isn't it the case 69 00:04:03,920 --> 00:04:06,960 Speaker 1: at least sometimes a law which appears to be neutral 70 00:04:07,000 --> 00:04:09,200 Speaker 1: on at spaces And I one of the examples that 71 00:04:09,320 --> 00:04:11,800 Speaker 1: Justice can raised a couple of times with extremely short 72 00:04:11,880 --> 00:04:16,240 Speaker 1: voting hours so that people who work basically couldn't get 73 00:04:16,279 --> 00:04:19,280 Speaker 1: to vote, or again the locations of polling places which 74 00:04:19,279 --> 00:04:21,159 Speaker 1: were going to be very very far from any man 75 00:04:21,200 --> 00:04:25,960 Speaker 1: already neighborhoods that a blanket exclusion of the so called time, 76 00:04:26,000 --> 00:04:29,880 Speaker 1: place and manner rules for voting just would not survive. 77 00:04:30,120 --> 00:04:33,080 Speaker 1: That that just needs to be untenable. And the question 78 00:04:33,120 --> 00:04:36,039 Speaker 1: that you've heard several of the justices, really both conservative 79 00:04:36,040 --> 00:04:39,880 Speaker 1: and liberal justices raising, was how do you distinguish between 80 00:04:40,200 --> 00:04:44,080 Speaker 1: rules that simply, quote unquote make it inconvenient to vote 81 00:04:44,560 --> 00:04:47,920 Speaker 1: and rules that effectively that seriously burdened the right to vote. 82 00:04:48,320 --> 00:04:50,120 Speaker 1: And that I think was kind of one of the 83 00:04:50,240 --> 00:04:52,840 Speaker 1: questions that was underlying a lot of this. Had you 84 00:04:52,880 --> 00:04:54,599 Speaker 1: come up with a standard that allows the states to 85 00:04:54,600 --> 00:04:57,800 Speaker 1: adopt some rules, because almost any rule is going to 86 00:04:57,880 --> 00:05:00,760 Speaker 1: make it hard for somebody to vote. The voting hours 87 00:05:00,760 --> 00:05:03,240 Speaker 1: are from six am to nine pm. It's gonna be 88 00:05:03,320 --> 00:05:06,120 Speaker 1: hard from people who want PM. How do you distinguish 89 00:05:06,240 --> 00:05:10,040 Speaker 1: that from rules that operate with the effect though it 90 00:05:10,120 --> 00:05:12,760 Speaker 1: maybe even the intent of making it very hard to 91 00:05:12,760 --> 00:05:15,840 Speaker 1: particular groups of people, then Ay voters to vote. Rich 92 00:05:15,880 --> 00:05:18,840 Speaker 1: A lot of people were watching the Chief Justice during 93 00:05:18,880 --> 00:05:22,560 Speaker 1: these oral arguments, in part because he wrote the majority 94 00:05:22,600 --> 00:05:27,480 Speaker 1: opinion in Shelby County versus Holder, which significantly cut back 95 00:05:27,680 --> 00:05:31,520 Speaker 1: Voting Rights Act in Did you hear anything from him 96 00:05:31,560 --> 00:05:34,240 Speaker 1: that struck you? I think what we heard from him, 97 00:05:34,279 --> 00:05:36,840 Speaker 1: and this maybe where the court winds up going is 98 00:05:36,920 --> 00:05:41,039 Speaker 1: he was unwilling to do us completely rule out Learning 99 00:05:41,120 --> 00:05:44,360 Speaker 1: Rights Act coverage. As the lawyer's Republican party one, that 100 00:05:44,440 --> 00:05:47,000 Speaker 1: position was pretty much the courts getting to hear these cases, 101 00:05:47,160 --> 00:05:49,760 Speaker 1: he seemed unsympathetic to that. On the other hand, he 102 00:05:50,000 --> 00:05:53,760 Speaker 1: also seemed unsympathetic to the rulings of the courts below 103 00:05:54,160 --> 00:05:57,760 Speaker 1: on the two particular issues being challenged, and maybe therefore 104 00:05:57,760 --> 00:05:59,920 Speaker 1: coming up with a standard in which the point is 105 00:06:00,080 --> 00:06:03,560 Speaker 1: have to prove a lot more than just disparate impact. 106 00:06:04,240 --> 00:06:06,960 Speaker 1: And he basically, you know, was asking one of the 107 00:06:07,040 --> 00:06:10,640 Speaker 1: laws that have been challenged was one that prohibited you know, 108 00:06:10,720 --> 00:06:14,479 Speaker 1: third parties from collecting and returning absentee ballots third paras 109 00:06:14,520 --> 00:06:17,320 Speaker 1: other than family members, in other words, like community groups, 110 00:06:17,400 --> 00:06:20,520 Speaker 1: voting rights groups, the political party. This is known pejoratively 111 00:06:20,560 --> 00:06:24,080 Speaker 1: as ballot harvesting. And he basically pointed out that, you know, 112 00:06:24,360 --> 00:06:28,280 Speaker 1: teen years ago of Bipartisan Commission had said that, you know, 113 00:06:28,360 --> 00:06:32,800 Speaker 1: this raised possibilities of fraud and coercion. And he basically said, 114 00:06:32,839 --> 00:06:35,520 Speaker 1: you know that isn't this kind of rule, the kind 115 00:06:35,520 --> 00:06:39,320 Speaker 1: of rule which is not inherently discriminatory but in fact 116 00:06:39,320 --> 00:06:41,320 Speaker 1: has a good justification for it. So I think he 117 00:06:41,400 --> 00:06:45,160 Speaker 1: was looking for ways and justice Kavanaugh asked similar questions 118 00:06:45,360 --> 00:06:48,520 Speaker 1: things which have legitimate justifications or things that are in 119 00:06:48,640 --> 00:06:52,160 Speaker 1: widespread use, and he stays, have rules like this shouldn't 120 00:06:52,160 --> 00:06:55,440 Speaker 1: we take that into account in judging whether or not 121 00:06:55,760 --> 00:06:59,719 Speaker 1: a particular rule violates the voting rights? At most observers 122 00:06:59,720 --> 00:07:03,600 Speaker 1: seem to think there is enough support from the Conservatives 123 00:07:03,680 --> 00:07:07,279 Speaker 1: for these voting restrictions. Do you agree with that? And 124 00:07:07,320 --> 00:07:11,280 Speaker 1: what about the standard that the court uses? The serving 125 00:07:11,360 --> 00:07:13,600 Speaker 1: vote is always very hard to predict. I think you're 126 00:07:13,600 --> 00:07:16,280 Speaker 1: going to see some kind of intermediate standard, but one 127 00:07:16,320 --> 00:07:18,720 Speaker 1: in which the point is, in this case lose. In 128 00:07:18,720 --> 00:07:21,080 Speaker 1: other words, they're not going to go as far the 129 00:07:21,120 --> 00:07:25,560 Speaker 1: most extreme positions of either the Republican Party lawyer or 130 00:07:25,600 --> 00:07:28,280 Speaker 1: what had been the position of the Trump administration, which 131 00:07:28,280 --> 00:07:31,560 Speaker 1: is to say that basically you can't use Section two 132 00:07:31,560 --> 00:07:34,960 Speaker 1: of the voting right back to challenge these basic rules 133 00:07:35,000 --> 00:07:38,120 Speaker 1: that govern the voting process. I don't think they're going 134 00:07:38,160 --> 00:07:39,880 Speaker 1: to go that far, But I do think they're going 135 00:07:39,920 --> 00:07:43,760 Speaker 1: to use a standard which requires the plaintiffs to prove 136 00:07:44,200 --> 00:07:47,840 Speaker 1: more not just that there is a racial disproportion and 137 00:07:47,880 --> 00:07:51,320 Speaker 1: how that certain rules affect minority voters more than non 138 00:07:51,320 --> 00:07:54,760 Speaker 1: minority voters, but that the impact has to be substantial 139 00:07:55,160 --> 00:07:58,120 Speaker 1: and may be part of a broader effort to make 140 00:07:58,160 --> 00:08:01,400 Speaker 1: it harder priority voters to vote. So you know, I 141 00:08:01,440 --> 00:08:04,400 Speaker 1: think a number of justices we're looking for what they 142 00:08:04,480 --> 00:08:06,560 Speaker 1: might consider to be a middle ground of saying, yes, 143 00:08:06,560 --> 00:08:09,360 Speaker 1: suits like this to go forward, but maybe with a 144 00:08:09,440 --> 00:08:12,440 Speaker 1: higher standard proof or plaintiffs. And the question is how 145 00:08:12,520 --> 00:08:14,760 Speaker 1: high is that standard going to be and what will 146 00:08:14,800 --> 00:08:18,600 Speaker 1: that result in? What kinds of voting restrictions will be 147 00:08:18,640 --> 00:08:21,400 Speaker 1: protected from challenge, which is important at a time where 148 00:08:21,400 --> 00:08:23,680 Speaker 1: it seems like a lot of states are moving to 149 00:08:23,720 --> 00:08:27,360 Speaker 1: adopt more restrictive rules on voting. The Brennan Center says 150 00:08:27,480 --> 00:08:31,280 Speaker 1: that legislators introduced more than a hundred and sixty five 151 00:08:31,360 --> 00:08:34,360 Speaker 1: bills this year to restrict voting access. That's more than 152 00:08:34,400 --> 00:08:37,920 Speaker 1: four times the number from a year ago. So if 153 00:08:37,960 --> 00:08:41,400 Speaker 1: those are challenged, or when those are challenged, the rules 154 00:08:41,440 --> 00:08:44,080 Speaker 1: that the Supreme Court sets that in this case will 155 00:08:44,120 --> 00:08:48,280 Speaker 1: be determinative. Well, send me be very significant. Sentently, what 156 00:08:48,320 --> 00:08:50,160 Speaker 1: the Surreme Court does in this case will be extremely 157 00:08:50,160 --> 00:08:53,760 Speaker 1: important for anybody bringing a challenge based on a racially 158 00:08:53,800 --> 00:08:57,240 Speaker 1: discriminatory impact. There might be other arguments, some of these 159 00:08:57,280 --> 00:08:59,640 Speaker 1: rules could be challenged on on more pure right to 160 00:08:59,679 --> 00:09:03,360 Speaker 1: vote ounds or other considerations. Well, this case, well, I 161 00:09:03,440 --> 00:09:08,840 Speaker 1: think set the standards for challenging newly restrictive voting rules 162 00:09:08,840 --> 00:09:11,560 Speaker 1: on grounds of racial discrimination. You know, this is really 163 00:09:11,559 --> 00:09:15,600 Speaker 1: the Supreme Court's first time looking at how to apply 164 00:09:16,240 --> 00:09:20,600 Speaker 1: the Statute to these kinds of lawsuits since the new 165 00:09:20,640 --> 00:09:24,920 Speaker 1: wave of restricting voting or tightening up on voting rules 166 00:09:25,080 --> 00:09:28,280 Speaker 1: began about a dozen years ago. Thanks for being on 167 00:09:28,320 --> 00:09:31,880 Speaker 1: the show, rich that's Professor Richard Brofald of Columbia Law 168 00:09:31,920 --> 00:09:35,120 Speaker 1: School coming up next on the Bloomberg Law Show. Kind 169 00:09:35,160 --> 00:09:39,200 Speaker 1: of high school disciplined cheerleader for a profane snapchat. I'm 170 00:09:39,320 --> 00:09:45,680 Speaker 1: June Grosso and you're listening to Bloomberg. About forty judges 171 00:09:45,720 --> 00:09:49,280 Speaker 1: have announced they'll take senior status or retire since the election, 172 00:09:49,720 --> 00:09:53,520 Speaker 1: adding to about fifty federal judicial vacancies that existed before 173 00:09:53,559 --> 00:09:57,120 Speaker 1: the election. With a narrow Democratic majority in the Senate 174 00:09:57,440 --> 00:10:01,360 Speaker 1: and no sixty vote threshold for judicial dominees, Biden has 175 00:10:01,400 --> 00:10:04,959 Speaker 1: an opportunity to make an impact on the courts, starting 176 00:10:04,960 --> 00:10:07,680 Speaker 1: with the Second Circuit, which it now appears he can 177 00:10:07,720 --> 00:10:11,480 Speaker 1: flip back to a Democratic appointed majority. Joining me is 178 00:10:11,520 --> 00:10:15,000 Speaker 1: Professor Carl to Bias of the University of Richmond Law School. 179 00:10:15,800 --> 00:10:19,280 Speaker 1: Carl tell us what senior status means for judges and 180 00:10:19,360 --> 00:10:22,440 Speaker 1: who's taking it well. Senior status is a form of 181 00:10:22,480 --> 00:10:27,040 Speaker 1: semi retirement. When judges satisfy the rule of eight when 182 00:10:27,040 --> 00:10:31,240 Speaker 1: they're sixty five and have fifteen years of experience, they 183 00:10:31,320 --> 00:10:34,400 Speaker 1: can take that status. They usually have a half case 184 00:10:34,480 --> 00:10:38,640 Speaker 1: load UM and they continue to receive the kolas that 185 00:10:39,120 --> 00:10:43,240 Speaker 1: all federal judges have. And so it's a great opportunity 186 00:10:43,440 --> 00:10:48,280 Speaker 1: for the judges because you retain your experience. But the 187 00:10:48,360 --> 00:10:54,640 Speaker 1: court then gets another active judge and so that's extremely 188 00:10:54,720 --> 00:10:58,520 Speaker 1: valuable UM and brings new people into the system and 189 00:10:58,559 --> 00:11:01,440 Speaker 1: gives the courts more resource is which many of them needs. 190 00:11:02,800 --> 00:11:07,680 Speaker 1: The most recent one is Judge Peter Hall on the 191 00:11:07,720 --> 00:11:12,760 Speaker 1: Second Circuit, who last Thirsty as soon senior status and 192 00:11:13,320 --> 00:11:19,080 Speaker 1: so that's important because he's the third judge on that 193 00:11:19,280 --> 00:11:24,319 Speaker 1: court who assumed senior status and means that there will 194 00:11:24,360 --> 00:11:30,160 Speaker 1: be more people on the court appointed by democratic presidents 195 00:11:30,160 --> 00:11:34,800 Speaker 1: than Republican presidents. One Judge Hall is replaced by a 196 00:11:34,880 --> 00:11:38,120 Speaker 1: Biden appointee, so Biden has an opportunity to flip the 197 00:11:38,160 --> 00:11:44,080 Speaker 1: court back to a democratically appointed majority, which Trump was 198 00:11:44,440 --> 00:11:49,079 Speaker 1: able to flip during his time. It's playing the importance 199 00:11:49,120 --> 00:11:53,080 Speaker 1: of the Second Circuit, which is based in Manhattan. Well, 200 00:11:53,200 --> 00:11:57,400 Speaker 1: it's the business center of certainly the United States and 201 00:11:57,559 --> 00:12:01,280 Speaker 1: probably the world. There's all Street and there's so much 202 00:12:01,360 --> 00:12:06,640 Speaker 1: commercial and industry in business yet is transacted there. And 203 00:12:06,760 --> 00:12:09,640 Speaker 1: it gets many other very important cases. I mean, think 204 00:12:09,679 --> 00:12:14,600 Speaker 1: about some of those involving President Trump and al Chopo 205 00:12:14,640 --> 00:12:20,120 Speaker 1: and all kinds of international and nationally important cases. And 206 00:12:20,200 --> 00:12:24,400 Speaker 1: so it's a story court that has a long tradition. 207 00:12:24,520 --> 00:12:28,320 Speaker 1: Remember sort of good Marshal served on that court, learned 208 00:12:28,440 --> 00:12:33,080 Speaker 1: hand served on that court. Henry Friendly, many great judges 209 00:12:33,280 --> 00:12:36,959 Speaker 1: in the pantheon of federal judges. It's a story court 210 00:12:37,080 --> 00:12:41,480 Speaker 1: and people know that. Tell us how many circuit courts 211 00:12:42,080 --> 00:12:47,720 Speaker 1: Trump flipped three, the third which includes Delaware, New Jersey 212 00:12:48,120 --> 00:12:53,760 Speaker 1: in Pennsylvania, and the eleven, which is Alabama, Georgia in Florida. 213 00:12:54,440 --> 00:12:58,240 Speaker 1: So when the circuits flipped, have we seen a difference 214 00:12:58,600 --> 00:13:03,280 Speaker 1: in the app Indians that are coming out of those circuits? Yes, 215 00:13:03,400 --> 00:13:06,040 Speaker 1: to some extent, and a number of public interest groups 216 00:13:06,080 --> 00:13:11,600 Speaker 1: and others are tracking those. Probably most striking is in 217 00:13:11,640 --> 00:13:15,440 Speaker 1: the eleven because I believe there's six judges which is 218 00:13:15,440 --> 00:13:20,640 Speaker 1: a majority on that court appointed by President Trump, and 219 00:13:21,320 --> 00:13:25,720 Speaker 1: that made a big difference on the fell in franchisement 220 00:13:25,920 --> 00:13:30,000 Speaker 1: issue that came from Florida, and all the Trump appointees 221 00:13:30,360 --> 00:13:32,560 Speaker 1: as well as the Chief Judge voted in a way 222 00:13:32,640 --> 00:13:36,520 Speaker 1: that was advantageous to Trump and probably meant a difference 223 00:13:36,559 --> 00:13:41,200 Speaker 1: in his ability to capture Florida in the presidential election. 224 00:13:41,559 --> 00:13:45,120 Speaker 1: And so that's one of the most important examples. But 225 00:13:45,240 --> 00:13:46,800 Speaker 1: there are a number of others. Of course, at the 226 00:13:46,840 --> 00:13:51,240 Speaker 1: Supreme Court will see too that the Court is issuing 227 00:13:51,320 --> 00:13:55,640 Speaker 1: more conservative rulings in certain areas. You only need a 228 00:13:55,679 --> 00:13:59,199 Speaker 1: majority vote to get an appellate Court judge. Does this 229 00:13:59,280 --> 00:14:03,760 Speaker 1: mean that by can put anyone he wants on these courts? No, 230 00:14:04,080 --> 00:14:09,080 Speaker 1: I don't think so. And you do have a split 231 00:14:09,480 --> 00:14:14,720 Speaker 1: and there are a number of Senators who are relatively 232 00:14:14,800 --> 00:14:19,200 Speaker 1: moderate uh and um. Unless you have all fifty of 233 00:14:19,200 --> 00:14:25,200 Speaker 1: those uh and the Republicans hold together, then it will 234 00:14:25,200 --> 00:14:32,000 Speaker 1: be difficult to name people who are outside of the mainstream, 235 00:14:32,040 --> 00:14:35,360 Speaker 1: as you will. But Biden hasn't said that he intends 236 00:14:35,400 --> 00:14:39,320 Speaker 1: to nominate people who are outside in the mainstream, but 237 00:14:39,480 --> 00:14:46,400 Speaker 1: he has said he's looking for diversity in terms of ethnicity, 238 00:14:47,880 --> 00:14:55,760 Speaker 1: gender and LGBT people, sexual orientation, but also experiential diversity. 239 00:14:56,120 --> 00:14:59,320 Speaker 1: Saying there may be too many prosecutors and too many 240 00:15:00,440 --> 00:15:10,040 Speaker 1: big firm and um other corporate type attorneys on the 241 00:15:10,080 --> 00:15:14,720 Speaker 1: federal bench. Uh. And so the White House Council sent 242 00:15:14,800 --> 00:15:18,560 Speaker 1: a letter to Senators about sending forward their recommendations and 243 00:15:18,680 --> 00:15:22,160 Speaker 1: mentioned all of those facets of diversity, and so I 244 00:15:22,160 --> 00:15:25,120 Speaker 1: think that will be important. And he also promised to 245 00:15:25,760 --> 00:15:29,080 Speaker 1: make his first appointment to the Supreme Court of Black woman. 246 00:15:29,840 --> 00:15:35,080 Speaker 1: The Federalist Society was behind the lists of judges for Trump. 247 00:15:35,400 --> 00:15:39,680 Speaker 1: Who is doing that for Biden if anyone well? Also 248 00:15:39,840 --> 00:15:43,440 Speaker 1: don't forget that Leonard Leo, the executive vice president of 249 00:15:43,480 --> 00:15:47,760 Speaker 1: the Federalist Society, was Trump's legal advisor through four years 250 00:15:47,800 --> 00:15:50,920 Speaker 1: at the White House, and he was instrumental as well 251 00:15:50,960 --> 00:15:54,560 Speaker 1: as Don McGann. The first White House Council in packing 252 00:15:54,600 --> 00:15:59,440 Speaker 1: the appeals courts was extremely conservative judges fifty four, setting 253 00:15:59,440 --> 00:16:03,600 Speaker 1: some records in the first and second year. So that's important. 254 00:16:04,240 --> 00:16:09,840 Speaker 1: I think in this administration there are other groups like 255 00:16:09,960 --> 00:16:15,640 Speaker 1: American Constitution Society and Demand Justice and other groups in Washington, 256 00:16:16,200 --> 00:16:21,120 Speaker 1: UM who have been very important and have sent lists 257 00:16:21,160 --> 00:16:23,760 Speaker 1: actually to the White House. But I don't think you 258 00:16:23,840 --> 00:16:28,520 Speaker 1: will see the same kind of influence from them, even 259 00:16:28,560 --> 00:16:30,920 Speaker 1: though it will be important to the White Husband. I'm 260 00:16:30,960 --> 00:16:33,720 Speaker 1: sure the White House will consider those lists. But also 261 00:16:33,800 --> 00:16:37,320 Speaker 1: at the district level, I think we'll see something fairly traditional. 262 00:16:37,760 --> 00:16:40,920 Speaker 1: The White House Council asked for three names for each vacancy, 263 00:16:41,120 --> 00:16:45,040 Speaker 1: and that be done swiftly. Remembering that in the Obama 264 00:16:45,400 --> 00:16:49,080 Speaker 1: first year selection process moves slowly, the White House is 265 00:16:49,240 --> 00:16:53,760 Speaker 1: moving as quickly as possible, in saying within forty five 266 00:16:53,800 --> 00:16:57,359 Speaker 1: days of an opening, the Senators should have three recommendations 267 00:16:57,400 --> 00:16:59,400 Speaker 1: to the White House, and so I think they will 268 00:16:59,440 --> 00:17:03,040 Speaker 1: consult both at the appellate and district level, although there 269 00:17:03,080 --> 00:17:06,280 Speaker 1: may be more White House control over the appellate nominees. 270 00:17:06,800 --> 00:17:11,520 Speaker 1: To go back, there are presently five appellate court vacancies 271 00:17:11,560 --> 00:17:16,480 Speaker 1: and five future vacancies, and on the district level sixty 272 00:17:16,760 --> 00:17:22,000 Speaker 1: present vacancies in twenty one or so future vacancies, so 273 00:17:22,119 --> 00:17:25,199 Speaker 1: there's some opportunities there. How do you know about a 274 00:17:25,240 --> 00:17:30,080 Speaker 1: future vacancy on an appellate court? The judge will announce, 275 00:17:30,200 --> 00:17:32,679 Speaker 1: will send a letter to the President saying I intend 276 00:17:32,720 --> 00:17:35,840 Speaker 1: to soon senior status, and then the Administrative of the 277 00:17:35,920 --> 00:17:39,800 Speaker 1: US Courts will post that and you can see that online. 278 00:17:40,760 --> 00:17:44,000 Speaker 1: Um and so that's the way to tell, and they 279 00:17:44,080 --> 00:17:47,160 Speaker 1: list out they have a listing of future vacancies. What's 280 00:17:47,160 --> 00:17:51,640 Speaker 1: the possibility that Joe Biden could flip the circuit courts 281 00:17:51,680 --> 00:17:57,000 Speaker 1: back that Trump flipped. There's some possibility. It would depend 282 00:17:57,359 --> 00:18:00,240 Speaker 1: in those two appeals courts, the third and the eleventh 283 00:18:00,320 --> 00:18:05,399 Speaker 1: that we were talking about, on some more judges assuming 284 00:18:05,560 --> 00:18:09,679 Speaker 1: senior status for retiring, and that hasn't happened yet and 285 00:18:09,720 --> 00:18:11,919 Speaker 1: there aren't any present they can seeze on either of 286 00:18:11,960 --> 00:18:17,120 Speaker 1: those courts, but those are possibilities, um, And there's probably 287 00:18:17,119 --> 00:18:22,119 Speaker 1: some other courts. For example, Trump appointed ten people to 288 00:18:22,240 --> 00:18:25,720 Speaker 1: the ninth circuit Um, which is a large number, but 289 00:18:25,760 --> 00:18:28,399 Speaker 1: of course there twenty nine active judges on that court. 290 00:18:28,880 --> 00:18:31,720 Speaker 1: One person has said she would take senior status, but 291 00:18:31,840 --> 00:18:35,359 Speaker 1: there may be others there because I think if you 292 00:18:35,440 --> 00:18:41,280 Speaker 1: look at senior eligible people, people who could take senior status, 293 00:18:41,280 --> 00:18:46,720 Speaker 1: they're a number of judges on that court, principally whom 294 00:18:46,960 --> 00:18:51,280 Speaker 1: President Clinton appointed who could soon senior status. But in 295 00:18:51,400 --> 00:18:54,399 Speaker 1: order to flip a circuit, you'd need a Republican appointed 296 00:18:54,520 --> 00:18:59,760 Speaker 1: judge to take senior status. Do judges on appellate courts 297 00:19:00,080 --> 00:19:06,399 Speaker 1: wait until a president of their party is in office. Again, 298 00:19:06,560 --> 00:19:09,439 Speaker 1: remembering that's a pretty crude measure when you're talking about 299 00:19:10,359 --> 00:19:16,360 Speaker 1: who appointed the person and someone who served for twenty years. Um. Yeah, 300 00:19:17,080 --> 00:19:21,439 Speaker 1: but people do use that measure, so yes, but we'll see, Um, 301 00:19:21,960 --> 00:19:26,240 Speaker 1: it depends. And sometimes I don't think that's as much 302 00:19:26,359 --> 00:19:29,320 Speaker 1: of a custom as at the Supreme Court of trying 303 00:19:29,359 --> 00:19:34,479 Speaker 1: to take senior status or resign in the term of 304 00:19:34,520 --> 00:19:38,119 Speaker 1: the president of the same party as appointed you. Um. 305 00:19:38,400 --> 00:19:40,800 Speaker 1: And you you often see that. I mean, for example, 306 00:19:40,880 --> 00:19:45,160 Speaker 1: Judge Hall was a Republican appointee to the Second Circuit. Uh. 307 00:19:45,200 --> 00:19:49,080 Speaker 1: And here we are in a democratic administration. What do 308 00:19:49,160 --> 00:19:54,000 Speaker 1: you consider a conservative judge? Well, that's a good question, 309 00:19:54,240 --> 00:19:58,440 Speaker 1: and I think the federal society has been vigorously debating 310 00:19:58,520 --> 00:20:04,399 Speaker 1: that as recently as according to reports from your reporters. Uh. 311 00:20:04,440 --> 00:20:08,359 Speaker 1: And I think there are a number of ways of 312 00:20:08,400 --> 00:20:13,880 Speaker 1: defining that. But I think for me and others, talk 313 00:20:13,960 --> 00:20:18,480 Speaker 1: about ideological conservatism. Uh. And if you think of the 314 00:20:18,560 --> 00:20:23,760 Speaker 1: culture war cases, for example, abortion and immigration and voting 315 00:20:23,840 --> 00:20:29,399 Speaker 1: rights and other issues that are very much hot button issues, 316 00:20:30,440 --> 00:20:33,439 Speaker 1: I think that's one way to look at it. But 317 00:20:33,600 --> 00:20:35,840 Speaker 1: what I think this debate in the federal society is 318 00:20:35,880 --> 00:20:41,480 Speaker 1: about is the notion of originalism and a conservative view 319 00:20:41,480 --> 00:20:45,640 Speaker 1: of the constitution. UH. And the strain comes in with 320 00:20:46,400 --> 00:20:49,240 Speaker 1: as they were debating on Friday, what do you do 321 00:20:49,440 --> 00:20:54,359 Speaker 1: about the assault insurrection on the Capitol on January six? 322 00:20:55,160 --> 00:21:00,639 Speaker 1: And think about the Trump appointees who rejected his false 323 00:21:00,680 --> 00:21:04,919 Speaker 1: allegations of election fraud. And so there's some tension there 324 00:21:05,480 --> 00:21:10,440 Speaker 1: about you know, having certain political goals. These are visa judiciary, 325 00:21:11,240 --> 00:21:14,960 Speaker 1: UH and being true to your principles about originalism, if 326 00:21:15,000 --> 00:21:18,359 Speaker 1: you will, And that needs to be worked through. And 327 00:21:18,400 --> 00:21:20,320 Speaker 1: I think the same debate is going on in the 328 00:21:20,320 --> 00:21:23,600 Speaker 1: Republican Party and so I think that's what you're seeing. 329 00:21:24,359 --> 00:21:29,880 Speaker 1: And so those tensions can all be resolved, and so 330 00:21:29,920 --> 00:21:34,000 Speaker 1: we'll see how they all all play out. Besides the 331 00:21:34,080 --> 00:21:38,680 Speaker 1: second circuit, which other circuits might come up as possibilities 332 00:21:38,720 --> 00:21:41,680 Speaker 1: for Biden to flip? I think the other two I 333 00:21:42,040 --> 00:21:45,679 Speaker 1: was talking about. Because he flipped those two, he also 334 00:21:45,760 --> 00:21:50,320 Speaker 1: reinforced the size of the Republican majorities and a number 335 00:21:50,400 --> 00:21:52,920 Speaker 1: of circuits. For example, of fifth, I think he got 336 00:21:53,000 --> 00:21:56,359 Speaker 1: tad four or five appointments, three in Texas and the 337 00:21:56,520 --> 00:22:01,240 Speaker 1: eighth and the seventh. Number of those he added to 338 00:22:01,320 --> 00:22:06,119 Speaker 1: the Republican majorities and significantly, which will make it more difficult. 339 00:22:06,280 --> 00:22:08,439 Speaker 1: I mean, I think Biden would probably need two terms 340 00:22:08,480 --> 00:22:12,040 Speaker 1: to change a number of those courts. Here's one more 341 00:22:12,080 --> 00:22:15,240 Speaker 1: thing about the district courts. Um, there was a hearing 342 00:22:15,280 --> 00:22:20,480 Speaker 1: in the House Judiciary Subcommittee about ten days ago on 343 00:22:20,680 --> 00:22:24,600 Speaker 1: a Judgeship's bill which would embody the Judicial Conference recommendations 344 00:22:24,640 --> 00:22:28,440 Speaker 1: based on conservative estimates of case and workloads, which calls 345 00:22:28,480 --> 00:22:31,960 Speaker 1: for sixty five new district judges and five new Ninth 346 00:22:32,000 --> 00:22:36,880 Speaker 1: Circuit judges. Uh, and almost everybody agreed. It was bipartisan 347 00:22:36,920 --> 00:22:40,320 Speaker 1: agreement that the courts need the judges to deliver justice. 348 00:22:40,880 --> 00:22:43,760 Speaker 1: But how what that will look like? We'll see. Um, 349 00:22:43,800 --> 00:22:46,359 Speaker 1: I think something might happen. But the problem is, of 350 00:22:46,359 --> 00:22:49,240 Speaker 1: course the party doesn't have the White House won't agree 351 00:22:49,280 --> 00:22:52,920 Speaker 1: because they feel like they're giving judges to the opposite party. 352 00:22:53,600 --> 00:22:57,160 Speaker 1: So how big would that make the Ninth Circuit, Well, 353 00:22:57,600 --> 00:22:59,920 Speaker 1: it would make it large. It would be thirty three 354 00:23:00,119 --> 00:23:03,720 Speaker 1: active judge using then of course, twenty years. So Senior Judge. 355 00:23:03,880 --> 00:23:06,879 Speaker 1: Thanks Carl. That's Professor Carl Tobias at the University of 356 00:23:06,960 --> 00:23:09,879 Speaker 1: Richmond Law School. And that's it for this edition of 357 00:23:09,880 --> 00:23:12,480 Speaker 1: the Bloomberg Law Show. Remember you can always at the 358 00:23:12,520 --> 00:23:15,280 Speaker 1: latest legal news on our Bloomberg Lawn podcast. You can 359 00:23:15,320 --> 00:23:19,400 Speaker 1: find them on Apple Podcasts, Spotify, and at www dot 360 00:23:19,400 --> 00:23:23,879 Speaker 1: bloomberg dot com slash podcast slash Law. I'm June gross O. 361 00:23:24,040 --> 00:23:26,320 Speaker 1: Thanks so much for listening, and please June into the 362 00:23:26,320 --> 00:23:29,000 Speaker 1: Bloomberg Law Show every week night at ten pm Eastern, 363 00:23:29,400 --> 00:23:31,000 Speaker 1: right here on Bloomberg Radio.