WEBVTT - Supreme Court May Weaken Voting Rights Act 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.039 --> 0:00:11.879 This week, the Supreme Court tackled a case that could 0:00:11.880 --> 0:00:15.920 further weaken the landmark Voting Rights Act. All six conservative 0:00:16.000 --> 0:00:20.560 justices suggested they would back to Arizona ballot restrictions, while 0:00:20.600 --> 0:00:23.479 exploring a possible middle ground on the standard that would 0:00:23.480 --> 0:00:27.800 apply to future lawsuits. Justice Samuel Alito was one of 0:00:27.840 --> 0:00:31.440 those expressing concern that any voting law could be vulnerable 0:00:31.520 --> 0:00:35.000 to attack under Section two of the Act, people who 0:00:35.000 --> 0:00:40.120 are poor and less well educated, on balance, probably will 0:00:41.000 --> 0:00:44.560 find it more difficult to comply with just about every 0:00:44.640 --> 0:00:49.560 voting rule than do people who are more affluent and 0:00:49.720 --> 0:00:53.320 have had the benefit of more education. There was a 0:00:53.360 --> 0:00:57.520 surprisingly candid answer from the lawyer for Arizona's Republican Party 0:00:57.760 --> 0:01:00.840 to a question by Justice Amy Coney, are it what's 0:01:00.880 --> 0:01:04.120 the interest of the Arizona RNC here in keeping say 0:01:04.240 --> 0:01:09.399 the out of uh precinct um voters disqualification rules on 0:01:09.440 --> 0:01:13.200 the books because it puts us at a competitive disadvantage 0:01:13.240 --> 0:01:16.600 relative to Democrats. Politics is a zero sum game. Joining 0:01:16.600 --> 0:01:20.520 me is elections law expert Richard Brofald, Professor, Columbia Law School, 0:01:20.959 --> 0:01:24.080 rich tell us the significance of the Voting Rights Act 0:01:24.360 --> 0:01:28.520 symbolically and legally so the Voting Rights Act initially dates 0:01:28.520 --> 0:01:31.480 back to the nine and it was a landmark effort 0:01:31.600 --> 0:01:34.120 on the part of the federal government to really, finally, 0:01:34.200 --> 0:01:38.160 under a hundred years of serious voting discrimination, effectively kept 0:01:38.520 --> 0:01:42.080 huge fractions of the black population and other minorities from voting. 0:01:42.200 --> 0:01:44.040 There was a major step forward and actually making the 0:01:44.120 --> 0:01:46.280 right to vote available to everybody. It was a very 0:01:46.360 --> 0:01:50.240 significant amendment. Addituate in two, and that's really what the 0:01:50.360 --> 0:01:54.120 argument dealt with, known as Section two, which basically said 0:01:54.120 --> 0:01:57.680 that certain kinds of voting rules that have the effect 0:01:57.800 --> 0:02:01.680 of discriminating against minorities, even if they're not inclearly intended 0:02:01.760 --> 0:02:04.280 to do so, can also be challenged and struck down 0:02:04.600 --> 0:02:08.280 where they have the aspect of denying minorities equal opportunities 0:02:08.320 --> 0:02:11.720 participate in the political process. What's going on now and 0:02:11.760 --> 0:02:14.839 really for the last ten years or more is kind 0:02:14.840 --> 0:02:17.680 of the return of what people call vote denial. The 0:02:17.720 --> 0:02:21.280 efforts to adopt laws which, although neutral on their face, 0:02:21.680 --> 0:02:24.560 actually make it harder for people to vote, and in 0:02:24.600 --> 0:02:27.400 particular make it harder for minorities to vote. Things like 0:02:27.520 --> 0:02:29.920 voter or I D as one example of this maybe 0:02:30.000 --> 0:02:33.079 what that's gotten the most attention, but there are other mechanisms. 0:02:33.120 --> 0:02:35.960 And the big question the same court has not addressed 0:02:36.040 --> 0:02:40.560 until now is what's the standard of proof? What needs 0:02:40.600 --> 0:02:43.440 to be shown in order for plaintiffs who are challenging 0:02:43.480 --> 0:02:46.240 one of these rules to say that this kind of 0:02:46.320 --> 0:02:49.880 vote denial mechanism which will fare in its face or 0:02:49.919 --> 0:02:53.920 neutraliance face it triggers a violation of Section two. What 0:02:54.000 --> 0:02:57.000 did you hear from the justices? There's a lot of 0:02:57.040 --> 0:03:00.639 concern that the standard adopted by the ninth sirt it simptis, 0:03:00.680 --> 0:03:03.320 made it too easy for pointiffs to bring cases or 0:03:03.360 --> 0:03:05.680 more of the point, made it too easy to challenge 0:03:05.880 --> 0:03:10.720 pretty standard or widespread voting rules and kind of made 0:03:10.720 --> 0:03:13.280 it too easy for minority pointiffs tojo win. I should 0:03:13.280 --> 0:03:15.080 say that in this case was actually not brought by 0:03:15.120 --> 0:03:17.880 minority group, who was brought by the Democratic Party. The 0:03:18.080 --> 0:03:22.959 Justices pushed Arizona's lawyer about the dividing line between restrictions 0:03:23.000 --> 0:03:26.120 that would be lawful and those that wouldn't be, and 0:03:26.240 --> 0:03:30.040 so he said it was lawful to block voting on Sundays, 0:03:30.080 --> 0:03:33.200 but not to force people to travel to country clubs 0:03:33.280 --> 0:03:37.440 to vote. What did you glean from his responses? I 0:03:37.440 --> 0:03:40.480 think that some of the argument of the challengers, they 0:03:40.520 --> 0:03:43.520 were going pretty far to make the argument that spatially 0:03:43.560 --> 0:03:47.840 neutral laws that basically that the procedures for voting simply 0:03:48.000 --> 0:03:51.480 could not be challenged under Section two. And I think 0:03:51.520 --> 0:03:53.680 these examples were designed to sort of push them to say, 0:03:53.720 --> 0:03:56.520 do you really mean that? Aren't there some situations where, 0:03:56.760 --> 0:03:59.760 given what the a G. Of Arizona acknowledge was that 0:04:00.000 --> 0:04:03.880 ground demographic considerations that given those, isn't it the case 0:04:03.920 --> 0:04:06.960 at least sometimes a law which appears to be neutral 0:04:07.000 --> 0:04:09.200 on at spaces And I one of the examples that 0:04:09.320 --> 0:04:11.800 Justice can raised a couple of times with extremely short 0:04:11.880 --> 0:04:16.240 voting hours so that people who work basically couldn't get 0:04:16.279 --> 0:04:19.280 to vote, or again the locations of polling places which 0:04:19.279 --> 0:04:21.159 were going to be very very far from any man 0:04:21.200 --> 0:04:25.960 already neighborhoods that a blanket exclusion of the so called time, 0:04:26.000 --> 0:04:29.880 place and manner rules for voting just would not survive. 0:04:30.120 --> 0:04:33.080 That that just needs to be untenable. And the question 0:04:33.120 --> 0:04:36.039 that you've heard several of the justices, really both conservative 0:04:36.040 --> 0:04:39.880 and liberal justices raising, was how do you distinguish between 0:04:40.200 --> 0:04:44.080 rules that simply, quote unquote make it inconvenient to vote 0:04:44.560 --> 0:04:47.920 and rules that effectively that seriously burdened the right to vote. 0:04:48.320 --> 0:04:50.120 And that I think was kind of one of the 0:04:50.240 --> 0:04:52.840 questions that was underlying a lot of this. Had you 0:04:52.880 --> 0:04:54.599 come up with a standard that allows the states to 0:04:54.600 --> 0:04:57.800 adopt some rules, because almost any rule is going to 0:04:57.880 --> 0:05:00.760 make it hard for somebody to vote. The voting hours 0:05:00.760 --> 0:05:03.240 are from six am to nine pm. It's gonna be 0:05:03.320 --> 0:05:06.120 hard from people who want PM. How do you distinguish 0:05:06.240 --> 0:05:10.040 that from rules that operate with the effect though it 0:05:10.120 --> 0:05:12.760 maybe even the intent of making it very hard to 0:05:12.760 --> 0:05:15.840 particular groups of people, then Ay voters to vote. Rich 0:05:15.880 --> 0:05:18.840 A lot of people were watching the Chief Justice during 0:05:18.880 --> 0:05:22.560 these oral arguments, in part because he wrote the majority 0:05:22.600 --> 0:05:27.480 opinion in Shelby County versus Holder, which significantly cut back 0:05:27.680 --> 0:05:31.520 Voting Rights Act in Did you hear anything from him 0:05:31.560 --> 0:05:34.240 that struck you? I think what we heard from him, 0:05:34.279 --> 0:05:36.840 and this maybe where the court winds up going is 0:05:36.920 --> 0:05:41.039 he was unwilling to do us completely rule out Learning 0:05:41.120 --> 0:05:44.360 Rights Act coverage. As the lawyer's Republican party one, that 0:05:44.440 --> 0:05:47.000 position was pretty much the courts getting to hear these cases, 0:05:47.160 --> 0:05:49.760 he seemed unsympathetic to that. On the other hand, he 0:05:50.000 --> 0:05:53.760 also seemed unsympathetic to the rulings of the courts below 0:05:54.160 --> 0:05:57.760 on the two particular issues being challenged, and maybe therefore 0:05:57.760 --> 0:05:59.920 coming up with a standard in which the point is 0:06:00.080 --> 0:06:03.560 have to prove a lot more than just disparate impact. 0:06:04.240 --> 0:06:06.960 And he basically, you know, was asking one of the 0:06:07.040 --> 0:06:10.640 laws that have been challenged was one that prohibited you know, 0:06:10.720 --> 0:06:14.479 third parties from collecting and returning absentee ballots third paras 0:06:14.520 --> 0:06:17.320 other than family members, in other words, like community groups, 0:06:17.400 --> 0:06:20.520 voting rights groups, the political party. This is known pejoratively 0:06:20.560 --> 0:06:24.080 as ballot harvesting. And he basically pointed out that, you know, 0:06:24.360 --> 0:06:28.280 teen years ago of Bipartisan Commission had said that, you know, 0:06:28.360 --> 0:06:32.800 this raised possibilities of fraud and coercion. And he basically said, 0:06:32.839 --> 0:06:35.520 you know that isn't this kind of rule, the kind 0:06:35.520 --> 0:06:39.320 of rule which is not inherently discriminatory but in fact 0:06:39.320 --> 0:06:41.320 has a good justification for it. So I think he 0:06:41.400 --> 0:06:45.160 was looking for ways and justice Kavanaugh asked similar questions 0:06:45.360 --> 0:06:48.520 things which have legitimate justifications or things that are in 0:06:48.640 --> 0:06:52.160 widespread use, and he stays, have rules like this shouldn't 0:06:52.160 --> 0:06:55.440 we take that into account in judging whether or not 0:06:55.760 --> 0:06:59.719 a particular rule violates the voting rights? At most observers 0:06:59.720 --> 0:07:03.600 seem to think there is enough support from the Conservatives 0:07:03.680 --> 0:07:07.279 for these voting restrictions. Do you agree with that? And 0:07:07.320 --> 0:07:11.280 what about the standard that the court uses? The serving 0:07:11.360 --> 0:07:13.600 vote is always very hard to predict. I think you're 0:07:13.600 --> 0:07:16.280 going to see some kind of intermediate standard, but one 0:07:16.320 --> 0:07:18.720 in which the point is, in this case lose. In 0:07:18.720 --> 0:07:21.080 other words, they're not going to go as far the 0:07:21.120 --> 0:07:25.560 most extreme positions of either the Republican Party lawyer or 0:07:25.600 --> 0:07:28.280 what had been the position of the Trump administration, which 0:07:28.280 --> 0:07:31.560 is to say that basically you can't use Section two 0:07:31.560 --> 0:07:34.960 of the voting right back to challenge these basic rules 0:07:35.000 --> 0:07:38.120 that govern the voting process. I don't think they're going 0:07:38.160 --> 0:07:39.880 to go that far, But I do think they're going 0:07:39.920 --> 0:07:43.760 to use a standard which requires the plaintiffs to prove 0:07:44.200 --> 0:07:47.840 more not just that there is a racial disproportion and 0:07:47.880 --> 0:07:51.320 how that certain rules affect minority voters more than non 0:07:51.320 --> 0:07:54.760 minority voters, but that the impact has to be substantial 0:07:55.160 --> 0:07:58.120 and may be part of a broader effort to make 0:07:58.160 --> 0:08:01.400 it harder priority voters to vote. So you know, I 0:08:01.440 --> 0:08:04.400 think a number of justices we're looking for what they 0:08:04.480 --> 0:08:06.560 might consider to be a middle ground of saying, yes, 0:08:06.560 --> 0:08:09.360 suits like this to go forward, but maybe with a 0:08:09.440 --> 0:08:12.440 higher standard proof or plaintiffs. And the question is how 0:08:12.520 --> 0:08:14.760 high is that standard going to be and what will 0:08:14.800 --> 0:08:18.600 that result in? What kinds of voting restrictions will be 0:08:18.640 --> 0:08:21.400 protected from challenge, which is important at a time where 0:08:21.400 --> 0:08:23.680 it seems like a lot of states are moving to 0:08:23.720 --> 0:08:27.360 adopt more restrictive rules on voting. The Brennan Center says 0:08:27.480 --> 0:08:31.280 that legislators introduced more than a hundred and sixty five 0:08:31.360 --> 0:08:34.360 bills this year to restrict voting access. That's more than 0:08:34.400 --> 0:08:37.920 four times the number from a year ago. So if 0:08:37.960 --> 0:08:41.400 those are challenged, or when those are challenged, the rules 0:08:41.440 --> 0:08:44.080 that the Supreme Court sets that in this case will 0:08:44.120 --> 0:08:48.280 be determinative. Well, send me be very significant. Sentently, what 0:08:48.320 --> 0:08:50.160 the Surreme Court does in this case will be extremely 0:08:50.160 --> 0:08:53.760 important for anybody bringing a challenge based on a racially 0:08:53.800 --> 0:08:57.240 discriminatory impact. There might be other arguments, some of these 0:08:57.280 --> 0:08:59.640 rules could be challenged on on more pure right to 0:08:59.679 --> 0:09:03.360 vote ounds or other considerations. Well, this case, well, I 0:09:03.440 --> 0:09:08.840 think set the standards for challenging newly restrictive voting rules 0:09:08.840 --> 0:09:11.560 on grounds of racial discrimination. You know, this is really 0:09:11.559 --> 0:09:15.600 the Supreme Court's first time looking at how to apply 0:09:16.240 --> 0:09:20.600 the Statute to these kinds of lawsuits since the new 0:09:20.640 --> 0:09:24.920 wave of restricting voting or tightening up on voting rules 0:09:25.080 --> 0:09:28.280 began about a dozen years ago. Thanks for being on 0:09:28.320 --> 0:09:31.880 the show, rich that's Professor Richard Brofald of Columbia Law 0:09:31.920 --> 0:09:35.120 School coming up next on the Bloomberg Law Show. Kind 0:09:35.160 --> 0:09:39.200 of high school disciplined cheerleader for a profane snapchat. I'm 0:09:39.320 --> 0:09:45.680 June Grosso and you're listening to Bloomberg. About forty judges 0:09:45.720 --> 0:09:49.280 have announced they'll take senior status or retire since the election, 0:09:49.720 --> 0:09:53.520 adding to about fifty federal judicial vacancies that existed before 0:09:53.559 --> 0:09:57.120 the election. With a narrow Democratic majority in the Senate 0:09:57.440 --> 0:10:01.360 and no sixty vote threshold for judicial dominees, Biden has 0:10:01.400 --> 0:10:04.959 an opportunity to make an impact on the courts, starting 0:10:04.960 --> 0:10:07.680 with the Second Circuit, which it now appears he can 0:10:07.720 --> 0:10:11.480 flip back to a Democratic appointed majority. Joining me is 0:10:11.520 --> 0:10:15.000 Professor Carl to Bias of the University of Richmond Law School. 0:10:15.800 --> 0:10:19.280 Carl tell us what senior status means for judges and 0:10:19.360 --> 0:10:22.440 who's taking it well. Senior status is a form of 0:10:22.480 --> 0:10:27.040 semi retirement. When judges satisfy the rule of eight when 0:10:27.040 --> 0:10:31.240 they're sixty five and have fifteen years of experience, they 0:10:31.320 --> 0:10:34.400 can take that status. They usually have a half case 0:10:34.480 --> 0:10:38.640 load UM and they continue to receive the kolas that 0:10:39.120 --> 0:10:43.240 all federal judges have. And so it's a great opportunity 0:10:43.440 --> 0:10:48.280 for the judges because you retain your experience. But the 0:10:48.360 --> 0:10:54.640 court then gets another active judge and so that's extremely 0:10:54.720 --> 0:10:58.520 valuable UM and brings new people into the system and 0:10:58.559 --> 0:11:01.440 gives the courts more resource is which many of them needs. 0:11:02.800 --> 0:11:07.680 The most recent one is Judge Peter Hall on the 0:11:07.720 --> 0:11:12.760 Second Circuit, who last Thirsty as soon senior status and 0:11:13.320 --> 0:11:19.080 so that's important because he's the third judge on that 0:11:19.280 --> 0:11:24.319 court who assumed senior status and means that there will 0:11:24.360 --> 0:11:30.160 be more people on the court appointed by democratic presidents 0:11:30.160 --> 0:11:34.800 than Republican presidents. One Judge Hall is replaced by a 0:11:34.880 --> 0:11:38.120 Biden appointee, so Biden has an opportunity to flip the 0:11:38.160 --> 0:11:44.080 court back to a democratically appointed majority, which Trump was 0:11:44.440 --> 0:11:49.079 able to flip during his time. It's playing the importance 0:11:49.120 --> 0:11:53.080 of the Second Circuit, which is based in Manhattan. Well, 0:11:53.200 --> 0:11:57.400 it's the business center of certainly the United States and 0:11:57.559 --> 0:12:01.280 probably the world. There's all Street and there's so much 0:12:01.360 --> 0:12:06.640 commercial and industry in business yet is transacted there. And 0:12:06.760 --> 0:12:09.640 it gets many other very important cases. I mean, think 0:12:09.679 --> 0:12:14.600 about some of those involving President Trump and al Chopo 0:12:14.640 --> 0:12:20.120 and all kinds of international and nationally important cases. And 0:12:20.200 --> 0:12:24.400 so it's a story court that has a long tradition. 0:12:24.520 --> 0:12:28.320 Remember sort of good Marshal served on that court, learned 0:12:28.440 --> 0:12:33.080 hand served on that court. Henry Friendly, many great judges 0:12:33.280 --> 0:12:36.959 in the pantheon of federal judges. It's a story court 0:12:37.080 --> 0:12:41.480 and people know that. Tell us how many circuit courts 0:12:42.080 --> 0:12:47.720 Trump flipped three, the third which includes Delaware, New Jersey 0:12:48.120 --> 0:12:53.760 in Pennsylvania, and the eleven, which is Alabama, Georgia in Florida. 0:12:54.440 --> 0:12:58.240 So when the circuits flipped, have we seen a difference 0:12:58.600 --> 0:13:03.280 in the app Indians that are coming out of those circuits? Yes, 0:13:03.400 --> 0:13:06.040 to some extent, and a number of public interest groups 0:13:06.080 --> 0:13:11.600 and others are tracking those. Probably most striking is in 0:13:11.640 --> 0:13:15.440 the eleven because I believe there's six judges which is 0:13:15.440 --> 0:13:20.640 a majority on that court appointed by President Trump, and 0:13:21.320 --> 0:13:25.720 that made a big difference on the fell in franchisement 0:13:25.920 --> 0:13:30.000 issue that came from Florida, and all the Trump appointees 0:13:30.360 --> 0:13:32.560 as well as the Chief Judge voted in a way 0:13:32.640 --> 0:13:36.520 that was advantageous to Trump and probably meant a difference 0:13:36.559 --> 0:13:41.200 in his ability to capture Florida in the presidential election. 0:13:41.559 --> 0:13:45.120 And so that's one of the most important examples. But 0:13:45.240 --> 0:13:46.800 there are a number of others. Of course, at the 0:13:46.840 --> 0:13:51.240 Supreme Court will see too that the Court is issuing 0:13:51.320 --> 0:13:55.640 more conservative rulings in certain areas. You only need a 0:13:55.679 --> 0:13:59.199 majority vote to get an appellate Court judge. Does this 0:13:59.280 --> 0:14:03.760 mean that by can put anyone he wants on these courts? No, 0:14:04.080 --> 0:14:09.080 I don't think so. And you do have a split 0:14:09.480 --> 0:14:14.720 and there are a number of Senators who are relatively 0:14:14.800 --> 0:14:19.200 moderate uh and um. Unless you have all fifty of 0:14:19.200 --> 0:14:25.200 those uh and the Republicans hold together, then it will 0:14:25.200 --> 0:14:32.000 be difficult to name people who are outside of the mainstream, 0:14:32.040 --> 0:14:35.360 as you will. But Biden hasn't said that he intends 0:14:35.400 --> 0:14:39.320 to nominate people who are outside in the mainstream, but 0:14:39.480 --> 0:14:46.400 he has said he's looking for diversity in terms of ethnicity, 0:14:47.880 --> 0:14:55.760 gender and LGBT people, sexual orientation, but also experiential diversity. 0:14:56.120 --> 0:14:59.320 Saying there may be too many prosecutors and too many 0:15:00.440 --> 0:15:10.040 big firm and um other corporate type attorneys on the 0:15:10.080 --> 0:15:14.720 federal bench. Uh. And so the White House Council sent 0:15:14.800 --> 0:15:18.560 a letter to Senators about sending forward their recommendations and 0:15:18.680 --> 0:15:22.160 mentioned all of those facets of diversity, and so I 0:15:22.160 --> 0:15:25.120 think that will be important. And he also promised to 0:15:25.760 --> 0:15:29.080 make his first appointment to the Supreme Court of Black woman. 0:15:29.840 --> 0:15:35.080 The Federalist Society was behind the lists of judges for Trump. 0:15:35.400 --> 0:15:39.680 Who is doing that for Biden if anyone well? Also 0:15:39.840 --> 0:15:43.440 don't forget that Leonard Leo, the executive vice president of 0:15:43.480 --> 0:15:47.760 the Federalist Society, was Trump's legal advisor through four years 0:15:47.800 --> 0:15:50.920 at the White House, and he was instrumental as well 0:15:50.960 --> 0:15:54.560 as Don McGann. The first White House Council in packing 0:15:54.600 --> 0:15:59.440 the appeals courts was extremely conservative judges fifty four, setting 0:15:59.440 --> 0:16:03.600 some records in the first and second year. So that's important. 0:16:04.240 --> 0:16:09.840 I think in this administration there are other groups like 0:16:09.960 --> 0:16:15.640 American Constitution Society and Demand Justice and other groups in Washington, 0:16:16.200 --> 0:16:21.120 UM who have been very important and have sent lists 0:16:21.160 --> 0:16:23.760 actually to the White House. But I don't think you 0:16:23.840 --> 0:16:28.520 will see the same kind of influence from them, even 0:16:28.560 --> 0:16:30.920 though it will be important to the White Husband. I'm 0:16:30.960 --> 0:16:33.720 sure the White House will consider those lists. But also 0:16:33.800 --> 0:16:37.320 at the district level, I think we'll see something fairly traditional. 0:16:37.760 --> 0:16:40.920 The White House Council asked for three names for each vacancy, 0:16:41.120 --> 0:16:45.040 and that be done swiftly. Remembering that in the Obama 0:16:45.400 --> 0:16:49.080 first year selection process moves slowly, the White House is 0:16:49.240 --> 0:16:53.760 moving as quickly as possible, in saying within forty five 0:16:53.800 --> 0:16:57.359 days of an opening, the Senators should have three recommendations 0:16:57.400 --> 0:16:59.400 to the White House, and so I think they will 0:16:59.440 --> 0:17:03.040 consult both at the appellate and district level, although there 0:17:03.080 --> 0:17:06.280 may be more White House control over the appellate nominees. 0:17:06.800 --> 0:17:11.520 To go back, there are presently five appellate court vacancies 0:17:11.560 --> 0:17:16.480 and five future vacancies, and on the district level sixty 0:17:16.760 --> 0:17:22.000 present vacancies in twenty one or so future vacancies, so 0:17:22.119 --> 0:17:25.199 there's some opportunities there. How do you know about a 0:17:25.240 --> 0:17:30.080 future vacancy on an appellate court? The judge will announce, 0:17:30.200 --> 0:17:32.679 will send a letter to the President saying I intend 0:17:32.720 --> 0:17:35.840 to soon senior status, and then the Administrative of the 0:17:35.920 --> 0:17:39.800 US Courts will post that and you can see that online. 0:17:40.760 --> 0:17:44.000 Um and so that's the way to tell, and they 0:17:44.080 --> 0:17:47.160 list out they have a listing of future vacancies. What's 0:17:47.160 --> 0:17:51.640 the possibility that Joe Biden could flip the circuit courts 0:17:51.680 --> 0:17:57.000 back that Trump flipped. There's some possibility. It would depend 0:17:57.359 --> 0:18:00.240 in those two appeals courts, the third and the eleventh 0:18:00.320 --> 0:18:05.399 that we were talking about, on some more judges assuming 0:18:05.560 --> 0:18:09.679 senior status for retiring, and that hasn't happened yet and 0:18:09.720 --> 0:18:11.919 there aren't any present they can seeze on either of 0:18:11.960 --> 0:18:17.120 those courts, but those are possibilities, um, And there's probably 0:18:17.119 --> 0:18:22.119 some other courts. For example, Trump appointed ten people to 0:18:22.240 --> 0:18:25.720 the ninth circuit Um, which is a large number, but 0:18:25.760 --> 0:18:28.399 of course there twenty nine active judges on that court. 0:18:28.880 --> 0:18:31.720 One person has said she would take senior status, but 0:18:31.840 --> 0:18:35.359 there may be others there because I think if you 0:18:35.440 --> 0:18:41.280 look at senior eligible people, people who could take senior status, 0:18:41.280 --> 0:18:46.720 they're a number of judges on that court, principally whom 0:18:46.960 --> 0:18:51.280 President Clinton appointed who could soon senior status. But in 0:18:51.400 --> 0:18:54.399 order to flip a circuit, you'd need a Republican appointed 0:18:54.520 --> 0:18:59.760 judge to take senior status. Do judges on appellate courts 0:19:00.080 --> 0:19:06.399 wait until a president of their party is in office. Again, 0:19:06.560 --> 0:19:09.439 remembering that's a pretty crude measure when you're talking about 0:19:10.359 --> 0:19:16.360 who appointed the person and someone who served for twenty years. Um. Yeah, 0:19:17.080 --> 0:19:21.439 but people do use that measure, so yes, but we'll see, Um, 0:19:21.960 --> 0:19:26.240 it depends. And sometimes I don't think that's as much 0:19:26.359 --> 0:19:29.320 of a custom as at the Supreme Court of trying 0:19:29.359 --> 0:19:34.479 to take senior status or resign in the term of 0:19:34.520 --> 0:19:38.119 the president of the same party as appointed you. Um. 0:19:38.400 --> 0:19:40.800 And you you often see that. I mean, for example, 0:19:40.880 --> 0:19:45.160 Judge Hall was a Republican appointee to the Second Circuit. Uh. 0:19:45.200 --> 0:19:49.080 And here we are in a democratic administration. What do 0:19:49.160 --> 0:19:54.000 you consider a conservative judge? Well, that's a good question, 0:19:54.240 --> 0:19:58.440 and I think the federal society has been vigorously debating 0:19:58.520 --> 0:20:04.399 that as recently as according to reports from your reporters. Uh. 0:20:04.440 --> 0:20:08.359 And I think there are a number of ways of 0:20:08.400 --> 0:20:13.880 defining that. But I think for me and others, talk 0:20:13.960 --> 0:20:18.480 about ideological conservatism. Uh. And if you think of the 0:20:18.560 --> 0:20:23.760 culture war cases, for example, abortion and immigration and voting 0:20:23.840 --> 0:20:29.399 rights and other issues that are very much hot button issues, 0:20:30.440 --> 0:20:33.439 I think that's one way to look at it. But 0:20:33.600 --> 0:20:35.840 what I think this debate in the federal society is 0:20:35.880 --> 0:20:41.480 about is the notion of originalism and a conservative view 0:20:41.480 --> 0:20:45.640 of the constitution. UH. And the strain comes in with 0:20:46.400 --> 0:20:49.240 as they were debating on Friday, what do you do 0:20:49.440 --> 0:20:54.359 about the assault insurrection on the Capitol on January six? 0:20:55.160 --> 0:21:00.639 And think about the Trump appointees who rejected his false 0:21:00.680 --> 0:21:04.919 allegations of election fraud. And so there's some tension there 0:21:05.480 --> 0:21:10.440 about you know, having certain political goals. These are visa judiciary, 0:21:11.240 --> 0:21:14.960 UH and being true to your principles about originalism, if 0:21:15.000 --> 0:21:18.359 you will, And that needs to be worked through. And 0:21:18.400 --> 0:21:20.320 I think the same debate is going on in the 0:21:20.320 --> 0:21:23.600 Republican Party and so I think that's what you're seeing. 0:21:24.359 --> 0:21:29.880 And so those tensions can all be resolved, and so 0:21:29.920 --> 0:21:34.000 we'll see how they all all play out. Besides the 0:21:34.080 --> 0:21:38.680 second circuit, which other circuits might come up as possibilities 0:21:38.720 --> 0:21:41.680 for Biden to flip? I think the other two I 0:21:42.040 --> 0:21:45.679 was talking about. Because he flipped those two, he also 0:21:45.760 --> 0:21:50.320 reinforced the size of the Republican majorities and a number 0:21:50.400 --> 0:21:52.920 of circuits. For example, of fifth, I think he got 0:21:53.000 --> 0:21:56.359 tad four or five appointments, three in Texas and the 0:21:56.520 --> 0:22:01.240 eighth and the seventh. Number of those he added to 0:22:01.320 --> 0:22:06.119 the Republican majorities and significantly, which will make it more difficult. 0:22:06.280 --> 0:22:08.439 I mean, I think Biden would probably need two terms 0:22:08.480 --> 0:22:12.040 to change a number of those courts. Here's one more 0:22:12.080 --> 0:22:15.240 thing about the district courts. Um, there was a hearing 0:22:15.280 --> 0:22:20.480 in the House Judiciary Subcommittee about ten days ago on 0:22:20.680 --> 0:22:24.600 a Judgeship's bill which would embody the Judicial Conference recommendations 0:22:24.640 --> 0:22:28.440 based on conservative estimates of case and workloads, which calls 0:22:28.480 --> 0:22:31.960 for sixty five new district judges and five new Ninth 0:22:32.000 --> 0:22:36.880 Circuit judges. Uh, and almost everybody agreed. It was bipartisan 0:22:36.920 --> 0:22:40.320 agreement that the courts need the judges to deliver justice. 0:22:40.880 --> 0:22:43.760 But how what that will look like? We'll see. Um, 0:22:43.800 --> 0:22:46.359 I think something might happen. But the problem is, of 0:22:46.359 --> 0:22:49.240 course the party doesn't have the White House won't agree 0:22:49.280 --> 0:22:52.920 because they feel like they're giving judges to the opposite party. 0:22:53.600 --> 0:22:57.160 So how big would that make the Ninth Circuit, Well, 0:22:57.600 --> 0:22:59.920 it would make it large. It would be thirty three 0:23:00.119 --> 0:23:03.720 active judge using then of course, twenty years. So Senior Judge. 0:23:03.880 --> 0:23:06.879 Thanks Carl. That's Professor Carl Tobias at the University of 0:23:06.960 --> 0:23:09.879 Richmond Law School. And that's it for this edition of 0:23:09.880 --> 0:23:12.480 the Bloomberg Law Show. Remember you can always at the 0:23:12.520 --> 0:23:15.280 latest legal news on our Bloomberg Lawn podcast. You can 0:23:15.320 --> 0:23:19.400 find them on Apple Podcasts, Spotify, and at www dot 0:23:19.400 --> 0:23:23.879 bloomberg dot com slash podcast slash Law. I'm June gross O. 0:23:24.040 --> 0:23:26.320 Thanks so much for listening, and please June into the 0:23:26.320 --> 0:23:29.000 Bloomberg Law Show every week night at ten pm Eastern, 0:23:29.400 --> 0:23:31.000 right here on Bloomberg Radio.