WEBVTT - Franken Holds Blue Slip Hostage in Confirmation Fight (Audio) 0:00:00.200 --> 0:00:03.760 One area where President Trump has made conservatives very happy 0:00:03.880 --> 0:00:08.119 is the judiciary, and yesterday the President proposed sixteen conservative 0:00:08.160 --> 0:00:12.200 nominees to federal district and circuit courts. Among the nominees 0:00:12.200 --> 0:00:15.120 were Deputy White House Council Gregory kats Is, who is 0:00:15.240 --> 0:00:18.079 proposed for the District of Columbia Circuit, which is often 0:00:18.120 --> 0:00:21.480 a launching pad for the Supreme Court, and Minnesota Supreme 0:00:21.520 --> 0:00:24.120 Court Justice David Strass, who is nominated for the Eighth 0:00:24.200 --> 0:00:27.520 Circuit but whom Senator Al Franken in Minnesota is trying 0:00:27.560 --> 0:00:30.320 to block. Here to talk with us about the president's 0:00:30.360 --> 0:00:34.559 recent judicial nominations are Brian Fitzpatrick, a professor at Vanderbilt 0:00:34.600 --> 0:00:38.040 University Law School, and Carl Tobias, a professor at the 0:00:38.120 --> 0:00:42.960 University of Richmond School of Law. Brian, um, let's start 0:00:43.120 --> 0:00:49.240 with the Deputy White House Council Gregory kats Is. He's um, 0:00:49.280 --> 0:00:52.559 It's you know, I remember that George W. Bush, when 0:00:52.600 --> 0:00:55.560 he was president, nominated Harriet Myers, his White House counsel, 0:00:56.080 --> 0:00:58.080 to go on the Supreme Court, and that really didn't 0:00:58.120 --> 0:01:00.880 go very well. But is it on you usual for 0:01:00.960 --> 0:01:03.600 a president to nominate members of his own legal staff 0:01:03.640 --> 0:01:06.880 to go onto the federal bench. I don't think it's 0:01:07.000 --> 0:01:13.119 unusual at all. You may uh know about um an 0:01:13.160 --> 0:01:17.880 incident with Melana Kagan, who is currently on the United 0:01:17.880 --> 0:01:21.640 States Supreme Court. When she was in the Clinton White House, 0:01:22.240 --> 0:01:26.600 she was supposed to be nominated to the d C Circuit. 0:01:26.720 --> 0:01:29.640 I can't remember if she was nominated and didn't get 0:01:29.120 --> 0:01:33.080 a vote, or she was never quite nominated. But this 0:01:33.160 --> 0:01:37.679 is this is not unusual. The president's people are often 0:01:37.840 --> 0:01:44.559 very talented lawyers, and they often make very talented judges. Now, 0:01:44.640 --> 0:01:48.400 Harriet Myers was an exception to that rule. Uh. You know, 0:01:48.480 --> 0:01:50.160 I think a lot of people think that she was 0:01:50.240 --> 0:01:54.640 not at the very top of the legal profession, and 0:01:54.880 --> 0:01:57.240 I think that's why her nomination ended up going down. 0:01:57.280 --> 0:02:03.080 But Greg Katsas is an outstanding lawyer, super smart, very 0:02:03.160 --> 0:02:06.240 intellectual guy, and I think that he will be confirmed 0:02:06.280 --> 0:02:10.839 without much difficulty. Carl, do you agree that it's not unusual. 0:02:10.919 --> 0:02:13.720 There have been a couple of instances, but they seem 0:02:13.840 --> 0:02:17.800 to be few. Well, I think Brian's right, Uh, there 0:02:17.800 --> 0:02:22.079 haven't been many, as you suggest, June. Uh. But I 0:02:22.120 --> 0:02:25.120 would say that Elana Kagan was nominated for the d 0:02:25.160 --> 0:02:29.040 C Circuit, but she was blocked by Republicans at the 0:02:29.200 --> 0:02:34.320 end of Clinton, I think. But the better example, I 0:02:34.400 --> 0:02:37.079 think is Brett Kavanaugh, who presently sits on the d 0:02:37.200 --> 0:02:41.360 C Circuit, is highly regarded and he held a fairly 0:02:41.400 --> 0:02:46.240 comparable position to Greg Katsas in the Bush administration. So 0:02:46.360 --> 0:02:50.359 it does happen, but it's not very often. Well, Brian, 0:02:50.880 --> 0:02:55.559 doesn't it mean though, that when these these um they're 0:02:55.560 --> 0:03:00.280 going to have sort of different eye different confirmation hearings 0:03:00.320 --> 0:03:03.959 that we often get with nominees, because he's going to 0:03:04.080 --> 0:03:06.160 have to deal as as somebody in the White House 0:03:06.200 --> 0:03:08.000 Counsel's office right now. Isn't he gonna have to deal 0:03:08.040 --> 0:03:10.000 with a lot of the things that have been legally 0:03:10.040 --> 0:03:13.360 controversial that have happened while President Trump has been president, 0:03:13.480 --> 0:03:18.600 like the travel band litigation and things of that nature. Well, 0:03:18.639 --> 0:03:24.359 what the nominees usually say is that they will recuse 0:03:24.440 --> 0:03:29.680 themselves from any matters that they worked on while in 0:03:29.720 --> 0:03:33.280 the administration. But won't you have to deal with his 0:03:33.639 --> 0:03:35.760 with you know, sort of a lot of the legal 0:03:35.800 --> 0:03:38.240 issues about it and what his views are on those 0:03:38.240 --> 0:03:41.080 subjects in a way that some nominees managed to avoid 0:03:41.080 --> 0:03:43.000 talking about when they get Well, he he may have 0:03:43.120 --> 0:03:47.320 to answer some questions about what he did or didn't 0:03:47.360 --> 0:03:50.080 do with regard to some of these matters as a 0:03:50.160 --> 0:03:52.920 lawyer in the administration. But when he gets on the 0:03:52.960 --> 0:03:55.200 bench he will not hear any case. But he has 0:03:55.240 --> 0:03:58.480 worked on as a lawyer. Carl, that seems that that 0:03:58.560 --> 0:04:02.560 might eliminate a lot of cases, particularly for this court 0:04:02.600 --> 0:04:05.440 in the coming years. The White House could decide to 0:04:05.560 --> 0:04:09.800 assert legal privilege over his communications with the president. Is 0:04:09.840 --> 0:04:15.560 that a good move? Well, it's possible. But remember Kagan 0:04:15.640 --> 0:04:18.760 actually had to recuse, and she did on occasion because 0:04:18.800 --> 0:04:21.920 of her role as Solicitor General, and I expect if 0:04:21.960 --> 0:04:24.599 Catches is confirmed, he would do the same if he 0:04:24.640 --> 0:04:28.960 were closely involved. I think his principal responsibility has been 0:04:30.120 --> 0:04:34.360 vetting judicial nominees, but he may have been involved in 0:04:34.960 --> 0:04:40.040 um some activities like the Executive Order on immigration, other 0:04:40.839 --> 0:04:44.560 controversial issues that may be in litigation, and I agree 0:04:44.560 --> 0:04:49.080 with Bryan he may well recuse if he's directly involved 0:04:49.120 --> 0:04:52.680 in those matters. It's also interesting to note will he 0:04:52.760 --> 0:04:56.920 answer questions uh involving any of that in hearing, which 0:04:56.960 --> 0:05:01.120 I expect will come up, and he may just defer 0:05:01.360 --> 0:05:04.560 and say, you know, I can't um and claim some 0:05:04.640 --> 0:05:08.520 kind of privilege, Uh, Brian, Brian, given that this is 0:05:08.800 --> 0:05:11.000 you know, the d C Circuit is such an important court, 0:05:11.040 --> 0:05:13.239 and I think you have three justices on the Supreme 0:05:13.240 --> 0:05:15.560 Court that had served there, and certainly it's been a 0:05:15.600 --> 0:05:18.520 place that is something of a pipeline deals with so 0:05:18.560 --> 0:05:22.680 many important governmental issues. I would imagine with a conservative 0:05:22.680 --> 0:05:27.880 nominee to this court, the Democrats might want to break 0:05:27.960 --> 0:05:30.120 him over the coals more than say, some other places. 0:05:30.160 --> 0:05:32.800 Do you expect that there we're going to have even 0:05:32.800 --> 0:05:35.039 though he probably will get confirmed. Do you say, do 0:05:35.080 --> 0:05:36.880 you think you're gonna have a lot of opposition from 0:05:36.920 --> 0:05:39.640 Democrats on this one? I'm gonna be honest with you, 0:05:39.720 --> 0:05:41.640 I don't think so. And I'm gonna give you two 0:05:41.640 --> 0:05:43.920 reasons why I don't think there's going to be that 0:05:44.000 --> 0:05:48.159 much opposition to him. Number One, Greg Katsas is a 0:05:48.240 --> 0:05:52.719 really nerdy, geeky guy. I know him personally. He does 0:05:52.800 --> 0:05:57.080 not come across as the face of evil, and so 0:05:57.120 --> 0:06:00.760 I don't think people are going to feel very intimidated 0:06:01.320 --> 0:06:03.560 by him, and I don't think they're going to think 0:06:03.560 --> 0:06:06.919 that he's going to destroy the republic. Number Two, I 0:06:06.920 --> 0:06:09.599 don't think he's being groomed for the United States Supreme Court. 0:06:10.360 --> 0:06:14.000 I think that if he were a woman or a minority, 0:06:14.360 --> 0:06:16.920 that would be more of a concern on the part 0:06:16.920 --> 0:06:20.200 of Democrats. But another white male from the d C Circuit, 0:06:20.600 --> 0:06:24.440 I just don't see that kind of person being someone 0:06:24.640 --> 0:06:27.080 that is a high likelihood of moving on to the 0:06:27.080 --> 0:06:30.520 Supreme Court. We're talking with Brian Fitzpatrick of Vanderbilt Law 0:06:30.560 --> 0:06:33.360 School and Carl Tobias of the University of Richmond's School 0:06:33.360 --> 0:06:36.719 of Law about President Trump's nominations to the federal courts. 0:06:36.760 --> 0:06:40.640 He made sixteen nominations yesterday, all of them very conservative, 0:06:41.160 --> 0:06:43.719 and the Democrats may be unhappy about it, but they're 0:06:43.720 --> 0:06:46.040 probably not going to be able to stop them. One 0:06:46.120 --> 0:06:50.320 possible exception to that, though, is uh is the nomination 0:06:50.560 --> 0:06:56.080 of the Minnesota Supreme Court justice to the Eighth Circuit, 0:06:56.279 --> 0:06:59.880 and Senator Al Franken is trying to to block that 0:07:00.120 --> 0:07:03.240 nomination of a justice named David Strass by using a 0:07:03.320 --> 0:07:07.919 procedure called a blue slip. Carl, can you explain to 0:07:08.000 --> 0:07:10.960 us what exactly what exactly is this procedure that Senator 0:07:10.960 --> 0:07:14.400 Franken is trying to use to block this nominee. Well, 0:07:14.440 --> 0:07:21.320 it's a hundred year old tradition that says for nominations 0:07:21.400 --> 0:07:27.440 to positions in the home state, whether appellate or district. Uh, 0:07:27.600 --> 0:07:31.160 the chair of the Judiciary Committee will not schedule a 0:07:31.240 --> 0:07:36.200 hearing unless both home state senators submit these blue slips 0:07:36.240 --> 0:07:39.760 saying that they can go forward. Protects the prerogatives of 0:07:39.760 --> 0:07:42.600 the home state senators and the minority in the Senate, 0:07:43.760 --> 0:07:48.640 So Brian tell us. Al Franken has given a couple 0:07:48.680 --> 0:07:51.560 of reasons as to why he will not turn in 0:07:51.760 --> 0:07:57.320 his blue slip for this candidate. Tell us what they are. Well, 0:07:57.360 --> 0:07:59.840 the only reason I will, I guess there are two 0:08:00.000 --> 0:08:03.080 reasons I've heard. Reason number one is David Strass is 0:08:03.120 --> 0:08:08.680 too conservative. Reason number two is that President Trump did 0:08:08.720 --> 0:08:14.040 not consult with al Franken enough before President Trump nominated him. 0:08:14.320 --> 0:08:19.080 So a lack of consultation and his jurisprudential philosophy is 0:08:19.120 --> 0:08:24.320 just too conservative for Sanator FRANKN. Carl Um. You know, 0:08:24.640 --> 0:08:29.080 Senator grass Lee, who who chairs the Judiciary Committee, has 0:08:29.480 --> 0:08:34.760 seems pretty committed to moving President Trump's judicial nominees towards confirmation. 0:08:35.440 --> 0:08:40.440 Is he likely to honor Senator Frankin's refusal to put 0:08:40.440 --> 0:08:45.920 in a blue slip. I think he will because Senator 0:08:46.000 --> 0:08:50.920 grass Lee followed the same process of requiring two blue 0:08:50.920 --> 0:08:54.680 slips in the last two years of the Obama administration 0:08:54.760 --> 0:08:58.600 when he was Chair of Judiciary, and had promised even 0:08:58.600 --> 0:09:02.559 after the election that he would continue to follow that practice. 0:09:03.640 --> 0:09:05.720 There's been a lot of pressure brought to bear on 0:09:05.920 --> 0:09:09.520 the Chair to change that, but I think he has 0:09:09.559 --> 0:09:14.160 fairly and efficiently scheduled hearings and move people as quickly 0:09:14.360 --> 0:09:18.440 as possible through the committee. UH. And so we'll just 0:09:18.480 --> 0:09:22.840 have to see, um what he does in this situation. 0:09:23.080 --> 0:09:27.720 It is the Chair's discretion, and in all eight years 0:09:27.760 --> 0:09:32.240 of Obama that was the practice UH to require to 0:09:32.400 --> 0:09:37.640 Home state senators blue slips. UM. So we'll see in 0:09:37.679 --> 0:09:41.400 the days and weeks ahead. Even more important, it seems 0:09:41.440 --> 0:09:44.880 to me, is the letter from the two Oregon senators 0:09:44.960 --> 0:09:49.920 yesterday essentially saying that there hadn't been consultation. They had 0:09:50.040 --> 0:09:53.240 a committee that set up to make some recommendations to 0:09:53.240 --> 0:09:56.760 the White House and then the President dominated despite that. 0:09:57.360 --> 0:10:01.160 In a letter to McGann the White House Council, UM, 0:10:01.280 --> 0:10:04.160 the senators suggested they would use their blue slips to 0:10:04.280 --> 0:10:09.079 block the nominee from yesterday. Brian, do you agree that 0:10:09.320 --> 0:10:14.120 Grassley will wait for or honor the blue slip tradition, 0:10:14.200 --> 0:10:17.280 because I've read reports that he signaled that he might 0:10:17.360 --> 0:10:20.760 go around it. I don't think he's going to honor 0:10:20.920 --> 0:10:26.600 them as an absolute rule. There has been some um 0:10:27.600 --> 0:10:33.160 uh oscillation or vacillation on how much weight the blue 0:10:33.160 --> 0:10:35.839 slips get over time. There was a period where they 0:10:35.840 --> 0:10:40.000 got substantial weight and not absolute weight. And so I 0:10:40.080 --> 0:10:45.280 suspect he will give some weight to a home state 0:10:45.320 --> 0:10:48.760 senator's refusal to return a blue slip, but I suspect 0:10:48.800 --> 0:10:52.480 that he'll be willing to override that if he feels 0:10:52.520 --> 0:10:54.640 like the senators do not have a very good reason 0:10:55.240 --> 0:10:59.080 for refusing to return the blue slip. And I will say, um, 0:10:59.120 --> 0:11:04.360 I don't think that David Strass's qualifications or his juris 0:11:04.440 --> 0:11:08.840 partential philosophy are in any way objectionable and are a 0:11:08.920 --> 0:11:13.040 decent basis for opposing him. But I will concede that 0:11:13.120 --> 0:11:17.600 I think the President does make a mistake when he 0:11:17.640 --> 0:11:22.800 does not consult with these senators before he makes these nominations. 0:11:23.480 --> 0:11:28.200 Will will consultation result in some kind of consensus pick 0:11:28.320 --> 0:11:31.440 between the President and the senators. Maybe not, but he 0:11:31.480 --> 0:11:34.480 at least ought to go through the motions and try 0:11:34.679 --> 0:11:38.079 to make the senators feel like they are being listened 0:11:38.120 --> 0:11:40.800 to before he makes these nominations, because I think he 0:11:40.840 --> 0:11:43.959 really just creates problems that are unnecessary when he doesn't 0:11:43.960 --> 0:11:47.840 do that well. Our thanks to Carl Tobias, professor at 0:11:47.880 --> 0:11:50.600 the University of Richmond School of Law, and Brian Fitzpatrick, 0:11:51.040 --> 0:11:54.400 a professor at Vanderbilt University Law School, for being here 0:11:54.400 --> 0:11:57.760 on Bloomberg Law. Coming up on Bloomberg Law, we're going 0:11:57.800 --> 0:12:00.880 to talk about Wells Fargo. It's rethinking how to do 0:12:01.000 --> 0:12:05.160 diversity training after a lawsuit claiming it discriminated against black brokers. 0:12:05.600 --> 0:12:08.679 UM it's taking a more focus grouped approach, and we're 0:12:08.679 --> 0:12:10.800 gonna be talking about whether or not that's a better 0:12:10.840 --> 0:12:15.000 way to approach the issue of diversity within the financial industry.