1
00:00:00,160 --> 00:00:03,840
Speaker 1: Understandably, people pay a lot of attention to Supreme Court nominations,

2
00:00:04,240 --> 00:00:06,640
Speaker 1: but a president's ability to nominate judges to the lower

3
00:00:06,680 --> 00:00:10,560
Speaker 1: federal courts carries the possibility of reshaping the predominant philosophy

4
00:00:10,600 --> 00:00:14,880
Speaker 1: of the entire federal judiciary. President Trump has about a

5
00:00:14,920 --> 00:00:18,000
Speaker 1: hundred and twenty vacancies open right now in the federal

6
00:00:18,079 --> 00:00:21,799
Speaker 1: judiciary and a Republican Senate that's likely to confirm his nominees,

7
00:00:22,200 --> 00:00:24,720
Speaker 1: so he has an opportunity to make a lasting impact

8
00:00:24,920 --> 00:00:28,000
Speaker 1: on American courts. Here to talk with us about how

9
00:00:28,040 --> 00:00:31,000
Speaker 1: the President seems to be approaching judicial nominations for the

10
00:00:31,040 --> 00:00:35,080
Speaker 1: federal judiciary are Jonathan Adler, a professor at Case Western

11
00:00:35,120 --> 00:00:39,159
Speaker 1: Reserve Law School, and Billy Courier, Deputy director of Legal

12
00:00:39,200 --> 00:00:43,800
Speaker 1: Process at the Center for American Progress. Jonathan, the President

13
00:00:44,040 --> 00:00:46,840
Speaker 1: is said to be on the verge of nominating about

14
00:00:46,920 --> 00:00:52,199
Speaker 1: ten judges for federal positions on the judiciary, and uh

15
00:00:52,280 --> 00:00:54,880
Speaker 1: the way he's approaching a conservatives probably should be happy

16
00:00:55,000 --> 00:00:58,680
Speaker 1: with the way he intends to go, Isn't that right? Certainly,

17
00:00:59,000 --> 00:01:03,040
Speaker 1: the names that have and identified are all incredibly well

18
00:01:03,040 --> 00:01:10,040
Speaker 1: respected and incredibly well qualified lawyers injurists, people that have demonstrated, uh,

19
00:01:10,080 --> 00:01:12,120
Speaker 1: they're commitment to the principles of the rule of law

20
00:01:12,360 --> 00:01:16,479
Speaker 1: and their intellectual acumen. Um, there's sort of folks that

21
00:01:17,000 --> 00:01:21,280
Speaker 1: conservatives who care about the courts would want to see. Billy,

22
00:01:21,319 --> 00:01:24,480
Speaker 1: how much of what Jonathan just said, would you disagree with? Uh?

23
00:01:24,600 --> 00:01:26,959
Speaker 1: You know, based on this list. Uh, you know, we're

24
00:01:27,000 --> 00:01:29,560
Speaker 1: we're still learning about some of these people, but it

25
00:01:29,600 --> 00:01:34,720
Speaker 1: looks to be a very well credential, well qualified uh

26
00:01:34,959 --> 00:01:38,440
Speaker 1: people that that Donald Trump is nominating. Well, I mean,

27
00:01:38,440 --> 00:01:41,800
Speaker 1: I agree that I think conservatives will be very happy

28
00:01:41,800 --> 00:01:45,680
Speaker 1: with this list. Um, I'm not sure that I would

29
00:01:45,760 --> 00:01:48,960
Speaker 1: describe all of the nominees as extremely well qualified. UM.

30
00:01:49,040 --> 00:01:53,600
Speaker 1: Joean Larson, for example, has very little experience as a judge. Um.

31
00:01:53,640 --> 00:01:56,800
Speaker 1: But she actually appeared on Trump's uh potential list of

32
00:01:56,840 --> 00:01:59,440
Speaker 1: potential Supreme Court nominees. UM. But she's only been on

33
00:01:59,440 --> 00:02:01,280
Speaker 1: the benches to don and fifty answer, that's not a

34
00:02:01,280 --> 00:02:04,880
Speaker 1: lot of experience. She had more has more experiences a

35
00:02:04,960 --> 00:02:07,440
Speaker 1: judge than Elena Kagan did when she was nominated to

36
00:02:07,480 --> 00:02:11,600
Speaker 1: the Supreme Court. More experience, Uh, probably an attorney before

37
00:02:11,639 --> 00:02:14,400
Speaker 1: leon Kagan became the listener general, I think if we

38
00:02:14,560 --> 00:02:17,880
Speaker 1: compare the qualifications of these nominees to appelic courts to

39
00:02:18,000 --> 00:02:21,560
Speaker 1: the qualifications of people that have been confirmed unanimously over

40
00:02:21,600 --> 00:02:24,720
Speaker 1: the past twenty years. Uh, they're comparable or or they

41
00:02:24,720 --> 00:02:27,120
Speaker 1: exceed the qualifications we would expect. I mean, you know,

42
00:02:27,160 --> 00:02:30,160
Speaker 1: we we apply the standards we usually would apply. I

43
00:02:30,200 --> 00:02:32,960
Speaker 1: don't think there's any basis to question the qualifications of

44
00:02:33,080 --> 00:02:36,079
Speaker 1: any of these central nominees. Well, Jonathan the you know,

45
00:02:36,160 --> 00:02:38,560
Speaker 1: one of the things was kind of interesting and unprecedented

46
00:02:38,600 --> 00:02:42,640
Speaker 1: about the way President Trump approached the Supreme Court nomination

47
00:02:42,840 --> 00:02:45,360
Speaker 1: that ended up, as with Neil Gorsitch, was that he

48
00:02:45,400 --> 00:02:48,200
Speaker 1: had he put out a list that seemed to come

49
00:02:48,480 --> 00:02:52,560
Speaker 1: predominantly from uh, you would look like the Federal Society,

50
00:02:53,280 --> 00:02:55,240
Speaker 1: you know, and and sort of he had it felt

51
00:02:55,240 --> 00:02:57,799
Speaker 1: almost some to some people like he had outsourced who

52
00:02:57,840 --> 00:02:59,480
Speaker 1: he was going to jet who's going to pick for

53
00:02:59,520 --> 00:03:03,160
Speaker 1: a Supreme Court judge hip? What's the process as far

54
00:03:03,200 --> 00:03:05,520
Speaker 1: as we know about how he's come up with his

55
00:03:05,600 --> 00:03:09,239
Speaker 1: list for the lower courts? Uh, you know, I think

56
00:03:09,360 --> 00:03:13,040
Speaker 1: this president, like presidents generally, seek the advice of people

57
00:03:13,040 --> 00:03:16,080
Speaker 1: that are experts in the field when trying to identify

58
00:03:16,440 --> 00:03:19,960
Speaker 1: potential judicial nominees and also seek the input of the

59
00:03:20,040 --> 00:03:23,760
Speaker 1: senators from other relevant states, particularly when we're looking at

60
00:03:23,800 --> 00:03:26,880
Speaker 1: district court nominations. I think that's what's occurring here. But

61
00:03:27,440 --> 00:03:29,440
Speaker 1: that's what's all what what often occurs. I mean, we

62
00:03:29,480 --> 00:03:33,120
Speaker 1: know that during the Obama administration, uh, the Obama administration

63
00:03:33,240 --> 00:03:36,440
Speaker 1: was influenced by the views of outside groups in deciding

64
00:03:36,480 --> 00:03:39,720
Speaker 1: to nominate some individuals over others uh and in terms,

65
00:03:39,800 --> 00:03:43,320
Speaker 1: and also was influenced by home state senators. I don't

66
00:03:43,360 --> 00:03:45,600
Speaker 1: think there's anything unusual about that. I mean, when when

67
00:03:45,600 --> 00:03:48,720
Speaker 1: we elect a president, we we certainly pay attention to

68
00:03:49,320 --> 00:03:51,680
Speaker 1: the sort of person that we think that that that

69
00:03:51,760 --> 00:03:54,680
Speaker 1: president is likely to appoint to the judiciary. But we

70
00:03:54,720 --> 00:03:57,760
Speaker 1: don't expect the president and or herself to on their

71
00:03:57,800 --> 00:03:59,480
Speaker 1: own be able to come up with a list of

72
00:03:59,560 --> 00:04:03,280
Speaker 1: quality wid on nominees. We assume that they will rely

73
00:04:03,480 --> 00:04:07,120
Speaker 1: upon experts and and their staff to help them with that,

74
00:04:07,280 --> 00:04:10,760
Speaker 1: just like they do for all all sorts of policy matters. Billy,

75
00:04:10,840 --> 00:04:13,360
Speaker 1: isn't there something to that? Do you see any uh,

76
00:04:13,800 --> 00:04:17,599
Speaker 1: fundamental difference between the way Donald Trump is approaching judge

77
00:04:17,600 --> 00:04:20,599
Speaker 1: ships and the way Barack Obama or George Bush or

78
00:04:20,640 --> 00:04:23,839
Speaker 1: any other recent president did. Yeah, I believe so. I

79
00:04:23,839 --> 00:04:27,279
Speaker 1: mean you mentioned at the beginning of that question that, uh,

80
00:04:27,760 --> 00:04:31,360
Speaker 1: the President explicitly said that he's outsourcing his Supreme Court

81
00:04:31,480 --> 00:04:35,240
Speaker 1: nominee list to the Federalist Society into Heritage, and and

82
00:04:35,279 --> 00:04:38,039
Speaker 1: that's unprecedented. Um, you know, not just the list, but

83
00:04:38,120 --> 00:04:41,000
Speaker 1: having these outside groups actually draw up the list. Um.

84
00:04:41,000 --> 00:04:43,560
Speaker 1: And I think also, um, you know, the President has

85
00:04:43,640 --> 00:04:47,239
Speaker 1: disregarded the American Bar associations historic role in this process,

86
00:04:47,400 --> 00:04:49,800
Speaker 1: and that was something that of course President Bush did

87
00:04:49,800 --> 00:04:52,520
Speaker 1: as well. Um. But I think it's something that shows

88
00:04:52,560 --> 00:04:55,640
Speaker 1: that the President is relying on these right wing groups

89
00:04:55,760 --> 00:04:59,320
Speaker 1: rather than uh, the American Bar Association, which historically played

90
00:04:59,320 --> 00:05:03,440
Speaker 1: a big role in recommending or not recommending nominees. Jonathan.

91
00:05:03,680 --> 00:05:06,920
Speaker 1: Given the number of judge hips that are open right now,

92
00:05:07,480 --> 00:05:10,720
Speaker 1: how big an impact really can we expect President Trump's

93
00:05:10,760 --> 00:05:13,039
Speaker 1: nominees to have as far as how the lug gets

94
00:05:13,040 --> 00:05:15,560
Speaker 1: interpreted in the country for the next over the next

95
00:05:15,800 --> 00:05:18,520
Speaker 1: ten or fifteen years. Sure, well, in terms of numbers,

96
00:05:18,520 --> 00:05:21,840
Speaker 1: it takes a long time for a single president, uh

97
00:05:21,920 --> 00:05:24,360
Speaker 1: to really alter the composition of the federal courts. As

98
00:05:24,360 --> 00:05:27,839
Speaker 1: a general rule, we can assume that a president in

99
00:05:27,839 --> 00:05:31,599
Speaker 1: a single four year term will get to nominate about

100
00:05:31,600 --> 00:05:34,920
Speaker 1: one fifth of the federal judiciary, and so two term

101
00:05:34,960 --> 00:05:38,560
Speaker 1: president has a very substantial impact. And President Obama, for example,

102
00:05:38,839 --> 00:05:41,719
Speaker 1: when he took office, there was one federal appellate court

103
00:05:41,760 --> 00:05:44,880
Speaker 1: that had a majority of Democratic nominees on it when

104
00:05:44,920 --> 00:05:47,240
Speaker 1: he became president. When he left, I believe it was

105
00:05:47,279 --> 00:05:51,000
Speaker 1: seven or eight that have a majority Democratic nominees. UM

106
00:05:51,240 --> 00:05:54,040
Speaker 1: for President Trump, UM, there's certainly are a decent number

107
00:05:54,040 --> 00:05:57,719
Speaker 1: of vacancies now, but there's only one federal appellate court

108
00:05:58,200 --> 00:06:01,039
Speaker 1: um that could that could have its balt altered based

109
00:06:01,080 --> 00:06:04,680
Speaker 1: on existing vacancies, and that's the Third Circuit UH, and

110
00:06:04,920 --> 00:06:08,599
Speaker 1: it would take time in additional retirements for his nominees

111
00:06:08,600 --> 00:06:10,799
Speaker 1: to have President Trump made it clear that he intended

112
00:06:10,800 --> 00:06:14,080
Speaker 1: to nominate conservatives to the Supreme Court, and he did

113
00:06:14,120 --> 00:06:16,560
Speaker 1: so when he nominated Neil Gorsitch, who was now on

114
00:06:16,600 --> 00:06:19,760
Speaker 1: the bench. Now he's starting to nominate judges to the

115
00:06:19,800 --> 00:06:23,400
Speaker 1: lower federal courts, and the list of his first nominees

116
00:06:23,520 --> 00:06:27,440
Speaker 1: is solidly conservative. With about twenty federal judge ships open,

117
00:06:27,480 --> 00:06:29,800
Speaker 1: there may be an opportunity for President Trump to move

118
00:06:29,839 --> 00:06:33,960
Speaker 1: the federal traditional system overall to the right. We are

119
00:06:34,000 --> 00:06:37,839
Speaker 1: talking about the president's judicial nominations with Jonathan Adler, professor

120
00:06:37,880 --> 00:06:41,640
Speaker 1: at Case Western Reserve Law School, and Billy Corrier, Deputy

121
00:06:41,680 --> 00:06:45,679
Speaker 1: director of Legal Progress at the Center for American Progress. Billy,

122
00:06:45,880 --> 00:06:50,039
Speaker 1: when Barack Obama was president, Uh, the Republicans in the

123
00:06:50,080 --> 00:06:52,400
Speaker 1: Senate slowed down a lot of nominations. There are a

124
00:06:52,440 --> 00:06:55,040
Speaker 1: lot of negotiations about what to do about it. And eventually,

125
00:06:55,120 --> 00:06:58,279
Speaker 1: to make a long story short, Uh, the Democrats got

126
00:06:58,360 --> 00:07:04,839
Speaker 1: rid of the judicial filibuster for courts below the Supreme Court. Um.

127
00:07:04,960 --> 00:07:08,599
Speaker 1: Can we expect that the Democrats now facing a Republican

128
00:07:08,640 --> 00:07:11,040
Speaker 1: president who seems to have a philosophy about how he's

129
00:07:11,080 --> 00:07:14,040
Speaker 1: about putting conservatives on the court. Can we expect them

130
00:07:14,080 --> 00:07:17,440
Speaker 1: to be trying to fight these nominations in the same

131
00:07:17,480 --> 00:07:20,480
Speaker 1: way that the Republicans slowed things down back in the

132
00:07:20,720 --> 00:07:24,960
Speaker 1: Obama administration. Well, I mean, I think, um. The big

133
00:07:24,960 --> 00:07:27,800
Speaker 1: differences of course, that the Democrats are in the minority. UM,

134
00:07:27,880 --> 00:07:30,840
Speaker 1: so they don't have the power to, you know, determine

135
00:07:30,880 --> 00:07:34,200
Speaker 1: when candidates or nominees are brought up for a vote

136
00:07:34,280 --> 00:07:36,559
Speaker 1: or not. Um. But I think that you can't expect

137
00:07:36,640 --> 00:07:39,040
Speaker 1: them to take a hard look at the records of

138
00:07:39,080 --> 00:07:41,680
Speaker 1: these judges. Um, And I think that for the home

139
00:07:41,800 --> 00:07:46,040
Speaker 1: state senators where these nominees are coming from, I think

140
00:07:46,080 --> 00:07:50,160
Speaker 1: that Bill they'll particularly take a really hard look at

141
00:07:50,160 --> 00:07:52,040
Speaker 1: the records of these judges and decide whether or not

142
00:07:52,160 --> 00:07:55,720
Speaker 1: they can they can support them. Jonathan. There are ten

143
00:07:55,840 --> 00:07:58,640
Speaker 1: names on on this list, first reported by The New

144
00:07:58,720 --> 00:08:02,040
Speaker 1: York Times Sunday Night, which which names they're sort of

145
00:08:02,120 --> 00:08:04,320
Speaker 1: jump out at you, either as somebody we might be

146
00:08:04,360 --> 00:08:07,320
Speaker 1: talking about as a Supreme Court nominee in the future,

147
00:08:07,640 --> 00:08:11,680
Speaker 1: or who might just become a a leading voice as

148
00:08:11,680 --> 00:08:13,960
Speaker 1: a federal appeals Court judge or a federal district judge

149
00:08:14,000 --> 00:08:16,840
Speaker 1: for that matter. Well, sure, I think too. Well. Two

150
00:08:16,840 --> 00:08:19,680
Speaker 1: of the names, Justice David Strauss, who's a Supreme Court

151
00:08:19,720 --> 00:08:22,800
Speaker 1: justice in Minnesota, and Justice John Lawson, who's a Supreme

152
00:08:22,800 --> 00:08:26,280
Speaker 1: Court justice in Michigan, we're already on Trump's list of

153
00:08:26,760 --> 00:08:31,080
Speaker 1: one potential Supreme Court nominee, So uh, assuming they are

154
00:08:31,080 --> 00:08:33,840
Speaker 1: both seated on federal pellate courts, I would think they

155
00:08:33,880 --> 00:08:36,720
Speaker 1: would continue to be the part of any discussion should

156
00:08:36,760 --> 00:08:40,400
Speaker 1: we see an additional Supreme Court vacancy. I think, uh.

157
00:08:40,520 --> 00:08:44,600
Speaker 1: Professor Amy Barrett is someone who one would think would

158
00:08:44,640 --> 00:08:46,480
Speaker 1: become part of that discussion as well. I mean, she

159
00:08:46,600 --> 00:08:50,320
Speaker 1: is an incredibly well regarded academic, incredibly thoughtful and intelligent

160
00:08:50,920 --> 00:08:55,000
Speaker 1: UM with a really an impressive record, UM, a former

161
00:08:55,000 --> 00:08:58,000
Speaker 1: SCHOOLI A clerk. I would would not be at all

162
00:08:58,040 --> 00:09:01,000
Speaker 1: surprised to see her as part of that discussion as well.

163
00:09:01,600 --> 00:09:04,600
Speaker 1: Um uh. And I think all of the Pelt nominees

164
00:09:04,640 --> 00:09:07,599
Speaker 1: are people who not only have qualifications, but are the

165
00:09:07,679 --> 00:09:10,880
Speaker 1: sorts of people that one would expect to write influential

166
00:09:10,880 --> 00:09:14,600
Speaker 1: opinions and to have an influence on their circuits, UM

167
00:09:14,640 --> 00:09:19,360
Speaker 1: and their colleagues. Billy, If the Democrats think that there

168
00:09:19,559 --> 00:09:23,120
Speaker 1: is let's say, one of these judges who is potentially

169
00:09:23,120 --> 00:09:26,640
Speaker 1: getting set up to be put on the Supreme Court, Um,

170
00:09:26,720 --> 00:09:29,280
Speaker 1: what kind of and given that there's no filibuster anymore

171
00:09:29,360 --> 00:09:31,720
Speaker 1: for this, what what kind of tactics? You know, you

172
00:09:31,760 --> 00:09:33,640
Speaker 1: mentioned the home state senators are going to look closely

173
00:09:33,679 --> 00:09:35,360
Speaker 1: at them, But what kind of tactics can we expect

174
00:09:35,440 --> 00:09:37,800
Speaker 1: Democrats to try to mount when they think somebody is

175
00:09:37,840 --> 00:09:40,600
Speaker 1: really going to be a problem. Well, I mean, I

176
00:09:40,600 --> 00:09:46,079
Speaker 1: think sure. The I mean there's a century long tradition

177
00:09:46,360 --> 00:09:49,280
Speaker 1: of who requiring home state senators to sign off on

178
00:09:49,360 --> 00:09:53,280
Speaker 1: nominees from their states. UM Chairman Grassley has respected this

179
00:09:53,360 --> 00:09:55,720
Speaker 1: process in the past, and I think that that's an

180
00:09:55,760 --> 00:09:58,960
Speaker 1: opportunity for Democrats in those states to really make their

181
00:09:59,000 --> 00:10:03,200
Speaker 1: feelings known. Um, they're Democratic senators in Michigan and Minnesota

182
00:10:03,200 --> 00:10:06,240
Speaker 1: where David Straws is from. Who I think I might

183
00:10:06,280 --> 00:10:09,480
Speaker 1: have something to say about the records of those two nominees.

184
00:10:10,600 --> 00:10:12,800
Speaker 1: Jenna than we have only about a minute left or so,

185
00:10:12,880 --> 00:10:16,240
Speaker 1: but I'm I'm interested. Um, are we inevitably moving towards

186
00:10:16,240 --> 00:10:18,080
Speaker 1: the world or maybe not inevitably, but are we moving

187
00:10:18,080 --> 00:10:21,199
Speaker 1: towards a world where we're going to have Republican judges

188
00:10:21,280 --> 00:10:24,719
Speaker 1: and democratic judges? It seems as though both sides are

189
00:10:24,720 --> 00:10:29,160
Speaker 1: getting better and better in the Trumpet administration, quite proficient

190
00:10:29,280 --> 00:10:33,640
Speaker 1: at selecting people who are are you know, likely to

191
00:10:33,679 --> 00:10:37,560
Speaker 1: agree with their party on on issues. Going forward, I

192
00:10:37,600 --> 00:10:40,480
Speaker 1: actually think the end of the filibuster for judicial nominations

193
00:10:40,520 --> 00:10:42,719
Speaker 1: could actually have the opposite effect. I think we will

194
00:10:42,760 --> 00:10:47,080
Speaker 1: make it easier for presidential administrations of both parties to

195
00:10:47,120 --> 00:10:50,800
Speaker 1: select people who have not only sound judicial temperament, but

196
00:10:50,880 --> 00:10:55,800
Speaker 1: that are intellectually independent and are willing to apply independent judgment,

197
00:10:55,840 --> 00:10:58,480
Speaker 1: they'll be less likely to feel they have to pick

198
00:10:58,520 --> 00:11:00,720
Speaker 1: stealth nominees who have worked our way up through the

199
00:11:00,720 --> 00:11:05,360
Speaker 1: party process and party organization, and more willing to pick

200
00:11:05,440 --> 00:11:08,440
Speaker 1: people that have really just demonstrated excellence. I think that

201
00:11:08,480 --> 00:11:11,160
Speaker 1: means the range of experiences we could see from nominees

202
00:11:11,720 --> 00:11:14,559
Speaker 1: will increase, and I think over time it will actually

203
00:11:14,600 --> 00:11:17,720
Speaker 1: lead to a more diverse and in many respects, less

204
00:11:17,720 --> 00:11:21,480
Speaker 1: partisan judiciary. Our thanks to Jonathan Adler, a professor at

205
00:11:21,480 --> 00:11:24,079
Speaker 1: Case Western Reserve Law School, and also to Billy Courrier,

206
00:11:24,360 --> 00:11:28,280
Speaker 1: deputy director of Legal Progress at the Center for American Progress,

207
00:11:28,320 --> 00:11:30,280
Speaker 1: for being with us in Bloomberg allowed to talk about

208
00:11:30,679 --> 00:11:33,760
Speaker 1: the first batch of judicial nominations to the lower federal

209
00:11:33,760 --> 00:11:36,360
Speaker 1: courts that's going to be made by President Trump