1 00:00:00,200 --> 00:00:03,760 Speaker 1: One area where President Trump has made conservatives very happy 2 00:00:03,880 --> 00:00:08,119 Speaker 1: is the judiciary, and yesterday the President proposed sixteen conservative 3 00:00:08,160 --> 00:00:12,200 Speaker 1: nominees to federal district and circuit courts. Among the nominees 4 00:00:12,200 --> 00:00:15,120 Speaker 1: were Deputy White House Council Gregory kats Is, who is 5 00:00:15,240 --> 00:00:18,079 Speaker 1: proposed for the District of Columbia Circuit, which is often 6 00:00:18,120 --> 00:00:21,480 Speaker 1: a launching pad for the Supreme Court, and Minnesota Supreme 7 00:00:21,520 --> 00:00:24,120 Speaker 1: Court Justice David Strass, who is nominated for the Eighth 8 00:00:24,200 --> 00:00:27,520 Speaker 1: Circuit but whom Senator Al Franken in Minnesota is trying 9 00:00:27,560 --> 00:00:30,320 Speaker 1: to block. Here to talk with us about the president's 10 00:00:30,360 --> 00:00:34,559 Speaker 1: recent judicial nominations are Brian Fitzpatrick, a professor at Vanderbilt 11 00:00:34,600 --> 00:00:38,040 Speaker 1: University Law School, and Carl Tobias, a professor at the 12 00:00:38,120 --> 00:00:42,960 Speaker 1: University of Richmond School of Law. Brian, um, let's start 13 00:00:43,120 --> 00:00:49,240 Speaker 1: with the Deputy White House Council Gregory kats Is. He's um, 14 00:00:49,280 --> 00:00:52,559 Speaker 1: It's you know, I remember that George W. Bush, when 15 00:00:52,600 --> 00:00:55,560 Speaker 1: he was president, nominated Harriet Myers, his White House counsel, 16 00:00:56,080 --> 00:00:58,080 Speaker 1: to go on the Supreme Court, and that really didn't 17 00:00:58,120 --> 00:01:00,880 Speaker 1: go very well. But is it on you usual for 18 00:01:00,960 --> 00:01:03,600 Speaker 1: a president to nominate members of his own legal staff 19 00:01:03,640 --> 00:01:06,880 Speaker 1: to go onto the federal bench. I don't think it's 20 00:01:07,000 --> 00:01:13,119 Speaker 1: unusual at all. You may uh know about um an 21 00:01:13,160 --> 00:01:17,880 Speaker 1: incident with Melana Kagan, who is currently on the United 22 00:01:17,880 --> 00:01:21,640 Speaker 1: States Supreme Court. When she was in the Clinton White House, 23 00:01:22,240 --> 00:01:26,600 Speaker 1: she was supposed to be nominated to the d C Circuit. 24 00:01:26,720 --> 00:01:29,640 Speaker 1: I can't remember if she was nominated and didn't get 25 00:01:29,120 --> 00:01:33,080 Speaker 1: a vote, or she was never quite nominated. But this 26 00:01:33,160 --> 00:01:37,679 Speaker 1: is this is not unusual. The president's people are often 27 00:01:37,840 --> 00:01:44,559 Speaker 1: very talented lawyers, and they often make very talented judges. Now, 28 00:01:44,640 --> 00:01:48,400 Speaker 1: Harriet Myers was an exception to that rule. Uh. You know, 29 00:01:48,480 --> 00:01:50,160 Speaker 1: I think a lot of people think that she was 30 00:01:50,240 --> 00:01:54,640 Speaker 1: not at the very top of the legal profession, and 31 00:01:54,880 --> 00:01:57,240 Speaker 1: I think that's why her nomination ended up going down. 32 00:01:57,280 --> 00:02:03,080 Speaker 1: But Greg Katsas is an outstanding lawyer, super smart, very 33 00:02:03,160 --> 00:02:06,240 Speaker 1: intellectual guy, and I think that he will be confirmed 34 00:02:06,280 --> 00:02:10,839 Speaker 1: without much difficulty. Carl, do you agree that it's not unusual. 35 00:02:10,919 --> 00:02:13,720 Speaker 1: There have been a couple of instances, but they seem 36 00:02:13,840 --> 00:02:17,800 Speaker 1: to be few. Well, I think Brian's right, Uh, there 37 00:02:17,800 --> 00:02:22,079 Speaker 1: haven't been many, as you suggest, June. Uh. But I 38 00:02:22,120 --> 00:02:25,120 Speaker 1: would say that Elana Kagan was nominated for the d 39 00:02:25,160 --> 00:02:29,040 Speaker 1: C Circuit, but she was blocked by Republicans at the 40 00:02:29,200 --> 00:02:34,320 Speaker 1: end of Clinton, I think. But the better example, I 41 00:02:34,400 --> 00:02:37,079 Speaker 1: think is Brett Kavanaugh, who presently sits on the d 42 00:02:37,200 --> 00:02:41,360 Speaker 1: C Circuit, is highly regarded and he held a fairly 43 00:02:41,400 --> 00:02:46,240 Speaker 1: comparable position to Greg Katsas in the Bush administration. So 44 00:02:46,360 --> 00:02:50,359 Speaker 1: it does happen, but it's not very often. Well, Brian, 45 00:02:50,880 --> 00:02:55,559 Speaker 1: doesn't it mean though, that when these these um they're 46 00:02:55,560 --> 00:03:00,280 Speaker 1: going to have sort of different eye different confirmation hearings 47 00:03:00,320 --> 00:03:03,959 Speaker 1: that we often get with nominees, because he's going to 48 00:03:04,080 --> 00:03:06,160 Speaker 1: have to deal as as somebody in the White House 49 00:03:06,200 --> 00:03:08,000 Speaker 1: Counsel's office right now. Isn't he gonna have to deal 50 00:03:08,040 --> 00:03:10,000 Speaker 1: with a lot of the things that have been legally 51 00:03:10,040 --> 00:03:13,360 Speaker 1: controversial that have happened while President Trump has been president, 52 00:03:13,480 --> 00:03:18,600 Speaker 1: like the travel band litigation and things of that nature. Well, 53 00:03:18,639 --> 00:03:24,359 Speaker 1: what the nominees usually say is that they will recuse 54 00:03:24,440 --> 00:03:29,680 Speaker 1: themselves from any matters that they worked on while in 55 00:03:29,720 --> 00:03:33,280 Speaker 1: the administration. But won't you have to deal with his 56 00:03:33,639 --> 00:03:35,760 Speaker 1: with you know, sort of a lot of the legal 57 00:03:35,800 --> 00:03:38,240 Speaker 1: issues about it and what his views are on those 58 00:03:38,240 --> 00:03:41,080 Speaker 1: subjects in a way that some nominees managed to avoid 59 00:03:41,080 --> 00:03:43,000 Speaker 1: talking about when they get Well, he he may have 60 00:03:43,120 --> 00:03:47,320 Speaker 1: to answer some questions about what he did or didn't 61 00:03:47,360 --> 00:03:50,080 Speaker 1: do with regard to some of these matters as a 62 00:03:50,160 --> 00:03:52,920 Speaker 1: lawyer in the administration. But when he gets on the 63 00:03:52,960 --> 00:03:55,200 Speaker 1: bench he will not hear any case. But he has 64 00:03:55,240 --> 00:03:58,480 Speaker 1: worked on as a lawyer. Carl, that seems that that 65 00:03:58,560 --> 00:04:02,560 Speaker 1: might eliminate a lot of cases, particularly for this court 66 00:04:02,600 --> 00:04:05,440 Speaker 1: in the coming years. The White House could decide to 67 00:04:05,560 --> 00:04:09,800 Speaker 1: assert legal privilege over his communications with the president. Is 68 00:04:09,840 --> 00:04:15,560 Speaker 1: that a good move? Well, it's possible. But remember Kagan 69 00:04:15,640 --> 00:04:18,760 Speaker 1: actually had to recuse, and she did on occasion because 70 00:04:18,800 --> 00:04:21,920 Speaker 1: of her role as Solicitor General, and I expect if 71 00:04:21,960 --> 00:04:24,599 Speaker 1: Catches is confirmed, he would do the same if he 72 00:04:24,640 --> 00:04:28,960 Speaker 1: were closely involved. I think his principal responsibility has been 73 00:04:30,120 --> 00:04:34,360 Speaker 1: vetting judicial nominees, but he may have been involved in 74 00:04:34,960 --> 00:04:40,040 Speaker 1: um some activities like the Executive Order on immigration, other 75 00:04:40,839 --> 00:04:44,560 Speaker 1: controversial issues that may be in litigation, and I agree 76 00:04:44,560 --> 00:04:49,080 Speaker 1: with Bryan he may well recuse if he's directly involved 77 00:04:49,120 --> 00:04:52,680 Speaker 1: in those matters. It's also interesting to note will he 78 00:04:52,760 --> 00:04:56,920 Speaker 1: answer questions uh involving any of that in hearing, which 79 00:04:56,960 --> 00:05:01,120 Speaker 1: I expect will come up, and he may just defer 80 00:05:01,360 --> 00:05:04,560 Speaker 1: and say, you know, I can't um and claim some 81 00:05:04,640 --> 00:05:08,520 Speaker 1: kind of privilege, Uh, Brian, Brian, given that this is 82 00:05:08,800 --> 00:05:11,000 Speaker 1: you know, the d C Circuit is such an important court, 83 00:05:11,040 --> 00:05:13,239 Speaker 1: and I think you have three justices on the Supreme 84 00:05:13,240 --> 00:05:15,560 Speaker 1: Court that had served there, and certainly it's been a 85 00:05:15,600 --> 00:05:18,520 Speaker 1: place that is something of a pipeline deals with so 86 00:05:18,560 --> 00:05:22,680 Speaker 1: many important governmental issues. I would imagine with a conservative 87 00:05:22,680 --> 00:05:27,880 Speaker 1: nominee to this court, the Democrats might want to break 88 00:05:27,960 --> 00:05:30,120 Speaker 1: him over the coals more than say, some other places. 89 00:05:30,160 --> 00:05:32,800 Speaker 1: Do you expect that there we're going to have even 90 00:05:32,800 --> 00:05:35,039 Speaker 1: though he probably will get confirmed. Do you say, do 91 00:05:35,080 --> 00:05:36,880 Speaker 1: you think you're gonna have a lot of opposition from 92 00:05:36,920 --> 00:05:39,640 Speaker 1: Democrats on this one? I'm gonna be honest with you, 93 00:05:39,720 --> 00:05:41,640 Speaker 1: I don't think so. And I'm gonna give you two 94 00:05:41,640 --> 00:05:43,920 Speaker 1: reasons why I don't think there's going to be that 95 00:05:44,000 --> 00:05:48,159 Speaker 1: much opposition to him. Number One, Greg Katsas is a 96 00:05:48,240 --> 00:05:52,719 Speaker 1: really nerdy, geeky guy. I know him personally. He does 97 00:05:52,800 --> 00:05:57,080 Speaker 1: not come across as the face of evil, and so 98 00:05:57,120 --> 00:06:00,760 Speaker 1: I don't think people are going to feel very intimidated 99 00:06:01,320 --> 00:06:03,560 Speaker 1: by him, and I don't think they're going to think 100 00:06:03,560 --> 00:06:06,919 Speaker 1: that he's going to destroy the republic. Number Two, I 101 00:06:06,920 --> 00:06:09,599 Speaker 1: don't think he's being groomed for the United States Supreme Court. 102 00:06:10,360 --> 00:06:14,000 Speaker 1: I think that if he were a woman or a minority, 103 00:06:14,360 --> 00:06:16,920 Speaker 1: that would be more of a concern on the part 104 00:06:16,920 --> 00:06:20,200 Speaker 1: of Democrats. But another white male from the d C Circuit, 105 00:06:20,600 --> 00:06:24,440 Speaker 1: I just don't see that kind of person being someone 106 00:06:24,640 --> 00:06:27,080 Speaker 1: that is a high likelihood of moving on to the 107 00:06:27,080 --> 00:06:30,520 Speaker 1: Supreme Court. We're talking with Brian Fitzpatrick of Vanderbilt Law 108 00:06:30,560 --> 00:06:33,360 Speaker 1: School and Carl Tobias of the University of Richmond's School 109 00:06:33,360 --> 00:06:36,719 Speaker 1: of Law about President Trump's nominations to the federal courts. 110 00:06:36,760 --> 00:06:40,640 Speaker 1: He made sixteen nominations yesterday, all of them very conservative, 111 00:06:41,160 --> 00:06:43,719 Speaker 1: and the Democrats may be unhappy about it, but they're 112 00:06:43,720 --> 00:06:46,040 Speaker 1: probably not going to be able to stop them. One 113 00:06:46,120 --> 00:06:50,320 Speaker 1: possible exception to that, though, is uh is the nomination 114 00:06:50,560 --> 00:06:56,080 Speaker 1: of the Minnesota Supreme Court justice to the Eighth Circuit, 115 00:06:56,279 --> 00:06:59,880 Speaker 1: and Senator Al Franken is trying to to block that 116 00:07:00,120 --> 00:07:03,240 Speaker 1: nomination of a justice named David Strass by using a 117 00:07:03,320 --> 00:07:07,919 Speaker 1: procedure called a blue slip. Carl, can you explain to 118 00:07:08,000 --> 00:07:10,960 Speaker 1: us what exactly what exactly is this procedure that Senator 119 00:07:10,960 --> 00:07:14,400 Speaker 1: Franken is trying to use to block this nominee. Well, 120 00:07:14,440 --> 00:07:21,320 Speaker 1: it's a hundred year old tradition that says for nominations 121 00:07:21,400 --> 00:07:27,440 Speaker 1: to positions in the home state, whether appellate or district. Uh, 122 00:07:27,600 --> 00:07:31,160 Speaker 1: the chair of the Judiciary Committee will not schedule a 123 00:07:31,240 --> 00:07:36,200 Speaker 1: hearing unless both home state senators submit these blue slips 124 00:07:36,240 --> 00:07:39,760 Speaker 1: saying that they can go forward. Protects the prerogatives of 125 00:07:39,760 --> 00:07:42,600 Speaker 1: the home state senators and the minority in the Senate, 126 00:07:43,760 --> 00:07:48,640 Speaker 1: So Brian tell us. Al Franken has given a couple 127 00:07:48,680 --> 00:07:51,560 Speaker 1: of reasons as to why he will not turn in 128 00:07:51,760 --> 00:07:57,320 Speaker 1: his blue slip for this candidate. Tell us what they are. Well, 129 00:07:57,360 --> 00:07:59,840 Speaker 1: the only reason I will, I guess there are two 130 00:08:00,000 --> 00:08:03,080 Speaker 1: reasons I've heard. Reason number one is David Strass is 131 00:08:03,120 --> 00:08:08,680 Speaker 1: too conservative. Reason number two is that President Trump did 132 00:08:08,720 --> 00:08:14,040 Speaker 1: not consult with al Franken enough before President Trump nominated him. 133 00:08:14,320 --> 00:08:19,080 Speaker 1: So a lack of consultation and his jurisprudential philosophy is 134 00:08:19,120 --> 00:08:24,320 Speaker 1: just too conservative for Sanator FRANKN. Carl Um. You know, 135 00:08:24,640 --> 00:08:29,080 Speaker 1: Senator grass Lee, who who chairs the Judiciary Committee, has 136 00:08:29,480 --> 00:08:34,760 Speaker 1: seems pretty committed to moving President Trump's judicial nominees towards confirmation. 137 00:08:35,440 --> 00:08:40,440 Speaker 1: Is he likely to honor Senator Frankin's refusal to put 138 00:08:40,440 --> 00:08:45,920 Speaker 1: in a blue slip. I think he will because Senator 139 00:08:46,000 --> 00:08:50,920 Speaker 1: grass Lee followed the same process of requiring two blue 140 00:08:50,920 --> 00:08:54,680 Speaker 1: slips in the last two years of the Obama administration 141 00:08:54,760 --> 00:08:58,600 Speaker 1: when he was Chair of Judiciary, and had promised even 142 00:08:58,600 --> 00:09:02,559 Speaker 1: after the election that he would continue to follow that practice. 143 00:09:03,640 --> 00:09:05,720 Speaker 1: There's been a lot of pressure brought to bear on 144 00:09:05,920 --> 00:09:09,520 Speaker 1: the Chair to change that, but I think he has 145 00:09:09,559 --> 00:09:14,160 Speaker 1: fairly and efficiently scheduled hearings and move people as quickly 146 00:09:14,360 --> 00:09:18,440 Speaker 1: as possible through the committee. UH. And so we'll just 147 00:09:18,480 --> 00:09:22,840 Speaker 1: have to see, um what he does in this situation. 148 00:09:23,080 --> 00:09:27,720 Speaker 1: It is the Chair's discretion, and in all eight years 149 00:09:27,760 --> 00:09:32,240 Speaker 1: of Obama that was the practice UH to require to 150 00:09:32,400 --> 00:09:37,640 Speaker 1: Home state senators blue slips. UM. So we'll see in 151 00:09:37,679 --> 00:09:41,400 Speaker 1: the days and weeks ahead. Even more important, it seems 152 00:09:41,440 --> 00:09:44,880 Speaker 1: to me, is the letter from the two Oregon senators 153 00:09:44,960 --> 00:09:49,920 Speaker 1: yesterday essentially saying that there hadn't been consultation. They had 154 00:09:50,040 --> 00:09:53,240 Speaker 1: a committee that set up to make some recommendations to 155 00:09:53,240 --> 00:09:56,760 Speaker 1: the White House and then the President dominated despite that. 156 00:09:57,360 --> 00:10:01,160 Speaker 1: In a letter to McGann the White House Council, UM, 157 00:10:01,280 --> 00:10:04,160 Speaker 1: the senators suggested they would use their blue slips to 158 00:10:04,280 --> 00:10:09,079 Speaker 1: block the nominee from yesterday. Brian, do you agree that 159 00:10:09,320 --> 00:10:14,120 Speaker 1: Grassley will wait for or honor the blue slip tradition, 160 00:10:14,200 --> 00:10:17,280 Speaker 1: because I've read reports that he signaled that he might 161 00:10:17,360 --> 00:10:20,760 Speaker 1: go around it. I don't think he's going to honor 162 00:10:20,920 --> 00:10:26,600 Speaker 1: them as an absolute rule. There has been some um 163 00:10:27,600 --> 00:10:33,160 Speaker 1: uh oscillation or vacillation on how much weight the blue 164 00:10:33,160 --> 00:10:35,839 Speaker 1: slips get over time. There was a period where they 165 00:10:35,840 --> 00:10:40,000 Speaker 1: got substantial weight and not absolute weight. And so I 166 00:10:40,080 --> 00:10:45,280 Speaker 1: suspect he will give some weight to a home state 167 00:10:45,320 --> 00:10:48,760 Speaker 1: senator's refusal to return a blue slip, but I suspect 168 00:10:48,800 --> 00:10:52,480 Speaker 1: that he'll be willing to override that if he feels 169 00:10:52,520 --> 00:10:54,640 Speaker 1: like the senators do not have a very good reason 170 00:10:55,240 --> 00:10:59,080 Speaker 1: for refusing to return the blue slip. And I will say, um, 171 00:10:59,120 --> 00:11:04,360 Speaker 1: I don't think that David Strass's qualifications or his juris 172 00:11:04,440 --> 00:11:08,840 Speaker 1: partential philosophy are in any way objectionable and are a 173 00:11:08,920 --> 00:11:13,040 Speaker 1: decent basis for opposing him. But I will concede that 174 00:11:13,120 --> 00:11:17,600 Speaker 1: I think the President does make a mistake when he 175 00:11:17,640 --> 00:11:22,800 Speaker 1: does not consult with these senators before he makes these nominations. 176 00:11:23,480 --> 00:11:28,200 Speaker 1: Will will consultation result in some kind of consensus pick 177 00:11:28,320 --> 00:11:31,440 Speaker 1: between the President and the senators. Maybe not, but he 178 00:11:31,480 --> 00:11:34,480 Speaker 1: at least ought to go through the motions and try 179 00:11:34,679 --> 00:11:38,079 Speaker 1: to make the senators feel like they are being listened 180 00:11:38,120 --> 00:11:40,800 Speaker 1: to before he makes these nominations, because I think he 181 00:11:40,840 --> 00:11:43,959 Speaker 1: really just creates problems that are unnecessary when he doesn't 182 00:11:43,960 --> 00:11:47,840 Speaker 1: do that well. Our thanks to Carl Tobias, professor at 183 00:11:47,880 --> 00:11:50,600 Speaker 1: the University of Richmond School of Law, and Brian Fitzpatrick, 184 00:11:51,040 --> 00:11:54,400 Speaker 1: a professor at Vanderbilt University Law School, for being here 185 00:11:54,400 --> 00:11:57,760 Speaker 1: on Bloomberg Law. Coming up on Bloomberg Law, we're going 186 00:11:57,800 --> 00:12:00,880 Speaker 1: to talk about Wells Fargo. It's rethinking how to do 187 00:12:01,000 --> 00:12:05,160 Speaker 1: diversity training after a lawsuit claiming it discriminated against black brokers. 188 00:12:05,600 --> 00:12:08,679 Speaker 1: UM it's taking a more focus grouped approach, and we're 189 00:12:08,679 --> 00:12:10,800 Speaker 1: gonna be talking about whether or not that's a better 190 00:12:10,840 --> 00:12:15,000 Speaker 1: way to approach the issue of diversity within the financial industry.