Speaker 1: Understandably, people pay a lot of attention to Supreme Court nominations,
Speaker 1: but a president's ability to nominate judges to the lower
Speaker 1: federal courts carries the possibility of reshaping the predominant philosophy
Speaker 1: of the entire federal judiciary. President Trump has about a
Speaker 1: hundred and twenty vacancies open right now in the federal
Speaker 1: judiciary and a Republican Senate that's likely to confirm his nominees,
Speaker 1: so he has an opportunity to make a lasting impact
Speaker 1: on American courts. Here to talk with us about how
Speaker 1: the President seems to be approaching judicial nominations for the
Speaker 1: federal judiciary are Jonathan Adler, a professor at Case Western
Speaker 1: Reserve Law School, and Billy Courier, Deputy director of Legal
Speaker 1: Process at the Center for American Progress. Jonathan, the President
Speaker 1: is said to be on the verge of nominating about
Speaker 1: ten judges for federal positions on the judiciary, and uh
Speaker 1: the way he's approaching a conservatives probably should be happy
Speaker 1: with the way he intends to go, Isn't that right? Certainly,
Speaker 1: the names that have and identified are all incredibly well
Speaker 1: respected and incredibly well qualified lawyers injurists, people that have demonstrated, uh,
Speaker 1: they're commitment to the principles of the rule of law
Speaker 1: and their intellectual acumen. Um, there's sort of folks that
Speaker 1: conservatives who care about the courts would want to see. Billy,
Speaker 1: how much of what Jonathan just said, would you disagree with? Uh?
Speaker 1: You know, based on this list. Uh, you know, we're
Speaker 1: we're still learning about some of these people, but it
Speaker 1: looks to be a very well credential, well qualified uh
Speaker 1: people that that Donald Trump is nominating. Well, I mean,
Speaker 1: I agree that I think conservatives will be very happy
Speaker 1: with this list. Um, I'm not sure that I would
Speaker 1: describe all of the nominees as extremely well qualified. UM.
Speaker 1: Joean Larson, for example, has very little experience as a judge. Um.
Speaker 1: But she actually appeared on Trump's uh potential list of
Speaker 1: potential Supreme Court nominees. UM. But she's only been on
Speaker 1: the benches to don and fifty answer, that's not a
Speaker 1: lot of experience. She had more has more experiences a
Speaker 1: judge than Elena Kagan did when she was nominated to
Speaker 1: the Supreme Court. More experience, Uh, probably an attorney before
Speaker 1: leon Kagan became the listener general, I think if we
Speaker 1: compare the qualifications of these nominees to appelic courts to
Speaker 1: the qualifications of people that have been confirmed unanimously over
Speaker 1: the past twenty years. Uh, they're comparable or or they
Speaker 1: exceed the qualifications we would expect. I mean, you know,
Speaker 1: we we apply the standards we usually would apply. I
Speaker 1: don't think there's any basis to question the qualifications of
Speaker 1: any of these central nominees. Well, Jonathan the you know,
Speaker 1: one of the things was kind of interesting and unprecedented
Speaker 1: about the way President Trump approached the Supreme Court nomination
Speaker 1: that ended up, as with Neil Gorsitch, was that he
Speaker 1: had he put out a list that seemed to come
Speaker 1: predominantly from uh, you would look like the Federal Society,
Speaker 1: you know, and and sort of he had it felt
Speaker 1: almost some to some people like he had outsourced who
Speaker 1: he was going to jet who's going to pick for
Speaker 1: a Supreme Court judge hip? What's the process as far
Speaker 1: as we know about how he's come up with his
Speaker 1: list for the lower courts? Uh, you know, I think
Speaker 1: this president, like presidents generally, seek the advice of people
Speaker 1: that are experts in the field when trying to identify
Speaker 1: potential judicial nominees and also seek the input of the
Speaker 1: senators from other relevant states, particularly when we're looking at
Speaker 1: district court nominations. I think that's what's occurring here. But
Speaker 1: that's what's all what what often occurs. I mean, we
Speaker 1: know that during the Obama administration, uh, the Obama administration
Speaker 1: was influenced by the views of outside groups in deciding
Speaker 1: to nominate some individuals over others uh and in terms,
Speaker 1: and also was influenced by home state senators. I don't
Speaker 1: think there's anything unusual about that. I mean, when when
Speaker 1: we elect a president, we we certainly pay attention to
Speaker 1: the sort of person that we think that that that
Speaker 1: president is likely to appoint to the judiciary. But we
Speaker 1: don't expect the president and or herself to on their
Speaker 1: own be able to come up with a list of
Speaker 1: quality wid on nominees. We assume that they will rely
Speaker 1: upon experts and and their staff to help them with that,
Speaker 1: just like they do for all all sorts of policy matters. Billy,
Speaker 1: isn't there something to that? Do you see any uh,
Speaker 1: fundamental difference between the way Donald Trump is approaching judge
Speaker 1: ships and the way Barack Obama or George Bush or
Speaker 1: any other recent president did. Yeah, I believe so. I
Speaker 1: mean you mentioned at the beginning of that question that, uh,
Speaker 1: the President explicitly said that he's outsourcing his Supreme Court
Speaker 1: nominee list to the Federalist Society into Heritage, and and
Speaker 1: that's unprecedented. Um, you know, not just the list, but
Speaker 1: having these outside groups actually draw up the list. Um.
Speaker 1: And I think also, um, you know, the President has
Speaker 1: disregarded the American Bar associations historic role in this process,
Speaker 1: and that was something that of course President Bush did
Speaker 1: as well. Um. But I think it's something that shows
Speaker 1: that the President is relying on these right wing groups
Speaker 1: rather than uh, the American Bar Association, which historically played
Speaker 1: a big role in recommending or not recommending nominees. Jonathan.
Speaker 1: Given the number of judge hips that are open right now,
Speaker 1: how big an impact really can we expect President Trump's
Speaker 1: nominees to have as far as how the lug gets
Speaker 1: interpreted in the country for the next over the next
Speaker 1: ten or fifteen years. Sure, well, in terms of numbers,
Speaker 1: it takes a long time for a single president, uh
Speaker 1: to really alter the composition of the federal courts. As
Speaker 1: a general rule, we can assume that a president in
Speaker 1: a single four year term will get to nominate about
Speaker 1: one fifth of the federal judiciary, and so two term
Speaker 1: president has a very substantial impact. And President Obama, for example,
Speaker 1: when he took office, there was one federal appellate court
Speaker 1: that had a majority of Democratic nominees on it when
Speaker 1: he became president. When he left, I believe it was
Speaker 1: seven or eight that have a majority Democratic nominees. UM
Speaker 1: for President Trump, UM, there's certainly are a decent number
Speaker 1: of vacancies now, but there's only one federal appellate court
Speaker 1: um that could that could have its balt altered based
Speaker 1: on existing vacancies, and that's the Third Circuit UH, and
Speaker 1: it would take time in additional retirements for his nominees
Speaker 1: to have President Trump made it clear that he intended
Speaker 1: to nominate conservatives to the Supreme Court, and he did
Speaker 1: so when he nominated Neil Gorsitch, who was now on
Speaker 1: the bench. Now he's starting to nominate judges to the
Speaker 1: lower federal courts, and the list of his first nominees
Speaker 1: is solidly conservative. With about twenty federal judge ships open,
Speaker 1: there may be an opportunity for President Trump to move
Speaker 1: the federal traditional system overall to the right. We are
Speaker 1: talking about the president's judicial nominations with Jonathan Adler, professor
Speaker 1: at Case Western Reserve Law School, and Billy Corrier, Deputy
Speaker 1: director of Legal Progress at the Center for American Progress. Billy,
Speaker 1: when Barack Obama was president, Uh, the Republicans in the
Speaker 1: Senate slowed down a lot of nominations. There are a
Speaker 1: lot of negotiations about what to do about it. And eventually,
Speaker 1: to make a long story short, Uh, the Democrats got
Speaker 1: rid of the judicial filibuster for courts below the Supreme Court. Um.
Speaker 1: Can we expect that the Democrats now facing a Republican
Speaker 1: president who seems to have a philosophy about how he's
Speaker 1: about putting conservatives on the court. Can we expect them
Speaker 1: to be trying to fight these nominations in the same
Speaker 1: way that the Republicans slowed things down back in the
Speaker 1: Obama administration. Well, I mean, I think, um. The big
Speaker 1: differences of course, that the Democrats are in the minority. UM,
Speaker 1: so they don't have the power to, you know, determine
Speaker 1: when candidates or nominees are brought up for a vote
Speaker 1: or not. Um. But I think that you can't expect
Speaker 1: them to take a hard look at the records of
Speaker 1: these judges. Um, And I think that for the home
Speaker 1: state senators where these nominees are coming from, I think
Speaker 1: that Bill they'll particularly take a really hard look at
Speaker 1: the records of these judges and decide whether or not
Speaker 1: they can they can support them. Jonathan. There are ten
Speaker 1: names on on this list, first reported by The New
Speaker 1: York Times Sunday Night, which which names they're sort of
Speaker 1: jump out at you, either as somebody we might be
Speaker 1: talking about as a Supreme Court nominee in the future,
Speaker 1: or who might just become a a leading voice as
Speaker 1: a federal appeals Court judge or a federal district judge
Speaker 1: for that matter. Well, sure, I think too. Well. Two
Speaker 1: of the names, Justice David Strauss, who's a Supreme Court
Speaker 1: justice in Minnesota, and Justice John Lawson, who's a Supreme
Speaker 1: Court justice in Michigan, we're already on Trump's list of
Speaker 1: one potential Supreme Court nominee, So uh, assuming they are
Speaker 1: both seated on federal pellate courts, I would think they
Speaker 1: would continue to be the part of any discussion should
Speaker 1: we see an additional Supreme Court vacancy. I think, uh.
Speaker 1: Professor Amy Barrett is someone who one would think would
Speaker 1: become part of that discussion as well. I mean, she
Speaker 1: is an incredibly well regarded academic, incredibly thoughtful and intelligent
Speaker 1: UM with a really an impressive record, UM, a former
Speaker 1: SCHOOLI A clerk. I would would not be at all
Speaker 1: surprised to see her as part of that discussion as well.
Speaker 1: Um uh. And I think all of the Pelt nominees
Speaker 1: are people who not only have qualifications, but are the
Speaker 1: sorts of people that one would expect to write influential
Speaker 1: opinions and to have an influence on their circuits, UM
Speaker 1: and their colleagues. Billy, If the Democrats think that there
Speaker 1: is let's say, one of these judges who is potentially
Speaker 1: getting set up to be put on the Supreme Court, Um,
Speaker 1: what kind of and given that there's no filibuster anymore
Speaker 1: for this, what what kind of tactics? You know, you
Speaker 1: mentioned the home state senators are going to look closely
Speaker 1: at them, But what kind of tactics can we expect
Speaker 1: Democrats to try to mount when they think somebody is
Speaker 1: really going to be a problem. Well, I mean, I
Speaker 1: think sure. The I mean there's a century long tradition
Speaker 1: of who requiring home state senators to sign off on
Speaker 1: nominees from their states. UM Chairman Grassley has respected this
Speaker 1: process in the past, and I think that that's an
Speaker 1: opportunity for Democrats in those states to really make their
Speaker 1: feelings known. Um, they're Democratic senators in Michigan and Minnesota
Speaker 1: where David Straws is from. Who I think I might
Speaker 1: have something to say about the records of those two nominees.
Speaker 1: Jenna than we have only about a minute left or so,
Speaker 1: but I'm I'm interested. Um, are we inevitably moving towards
Speaker 1: the world or maybe not inevitably, but are we moving
Speaker 1: towards a world where we're going to have Republican judges
Speaker 1: and democratic judges? It seems as though both sides are
Speaker 1: getting better and better in the Trumpet administration, quite proficient
Speaker 1: at selecting people who are are you know, likely to
Speaker 1: agree with their party on on issues. Going forward, I
Speaker 1: actually think the end of the filibuster for judicial nominations
Speaker 1: could actually have the opposite effect. I think we will
Speaker 1: make it easier for presidential administrations of both parties to
Speaker 1: select people who have not only sound judicial temperament, but
Speaker 1: that are intellectually independent and are willing to apply independent judgment,
Speaker 1: they'll be less likely to feel they have to pick
Speaker 1: stealth nominees who have worked our way up through the
Speaker 1: party process and party organization, and more willing to pick
Speaker 1: people that have really just demonstrated excellence. I think that
Speaker 1: means the range of experiences we could see from nominees
Speaker 1: will increase, and I think over time it will actually
Speaker 1: lead to a more diverse and in many respects, less
Speaker 1: partisan judiciary. Our thanks to Jonathan Adler, a professor at
Speaker 1: Case Western Reserve Law School, and also to Billy Courrier,
Speaker 1: deputy director of Legal Progress at the Center for American Progress,
Speaker 1: for being with us in Bloomberg allowed to talk about
Speaker 1: the first batch of judicial nominations to the lower federal
Speaker 1: courts that's going to be made by President Trump