Speaker 1: One area where President Trump has made conservatives very happy
Speaker 1: is the judiciary, and yesterday the President proposed sixteen conservative
Speaker 1: nominees to federal district and circuit courts. Among the nominees
Speaker 1: were Deputy White House Council Gregory kats Is, who is
Speaker 1: proposed for the District of Columbia Circuit, which is often
Speaker 1: a launching pad for the Supreme Court, and Minnesota Supreme
Speaker 1: Court Justice David Strass, who is nominated for the Eighth
Speaker 1: Circuit but whom Senator Al Franken in Minnesota is trying
Speaker 1: to block. Here to talk with us about the president's
Speaker 1: recent judicial nominations are Brian Fitzpatrick, a professor at Vanderbilt
Speaker 1: University Law School, and Carl Tobias, a professor at the
Speaker 1: University of Richmond School of Law. Brian, um, let's start
Speaker 1: with the Deputy White House Council Gregory kats Is. He's um,
Speaker 1: It's you know, I remember that George W. Bush, when
Speaker 1: he was president, nominated Harriet Myers, his White House counsel,
Speaker 1: to go on the Supreme Court, and that really didn't
Speaker 1: go very well. But is it on you usual for
Speaker 1: a president to nominate members of his own legal staff
Speaker 1: to go onto the federal bench. I don't think it's
Speaker 1: unusual at all. You may uh know about um an
Speaker 1: incident with Melana Kagan, who is currently on the United
Speaker 1: States Supreme Court. When she was in the Clinton White House,
Speaker 1: she was supposed to be nominated to the d C Circuit.
Speaker 1: I can't remember if she was nominated and didn't get
Speaker 1: a vote, or she was never quite nominated. But this
Speaker 1: is this is not unusual. The president's people are often
Speaker 1: very talented lawyers, and they often make very talented judges. Now,
Speaker 1: Harriet Myers was an exception to that rule. Uh. You know,
Speaker 1: I think a lot of people think that she was
Speaker 1: not at the very top of the legal profession, and
Speaker 1: I think that's why her nomination ended up going down.
Speaker 1: But Greg Katsas is an outstanding lawyer, super smart, very
Speaker 1: intellectual guy, and I think that he will be confirmed
Speaker 1: without much difficulty. Carl, do you agree that it's not unusual.
Speaker 1: There have been a couple of instances, but they seem
Speaker 1: to be few. Well, I think Brian's right, Uh, there
Speaker 1: haven't been many, as you suggest, June. Uh. But I
Speaker 1: would say that Elana Kagan was nominated for the d
Speaker 1: C Circuit, but she was blocked by Republicans at the
Speaker 1: end of Clinton, I think. But the better example, I
Speaker 1: think is Brett Kavanaugh, who presently sits on the d
Speaker 1: C Circuit, is highly regarded and he held a fairly
Speaker 1: comparable position to Greg Katsas in the Bush administration. So
Speaker 1: it does happen, but it's not very often. Well, Brian,
Speaker 1: doesn't it mean though, that when these these um they're
Speaker 1: going to have sort of different eye different confirmation hearings
Speaker 1: that we often get with nominees, because he's going to
Speaker 1: have to deal as as somebody in the White House
Speaker 1: Counsel's office right now. Isn't he gonna have to deal
Speaker 1: with a lot of the things that have been legally
Speaker 1: controversial that have happened while President Trump has been president,
Speaker 1: like the travel band litigation and things of that nature. Well,
Speaker 1: what the nominees usually say is that they will recuse
Speaker 1: themselves from any matters that they worked on while in
Speaker 1: the administration. But won't you have to deal with his
Speaker 1: with you know, sort of a lot of the legal
Speaker 1: issues about it and what his views are on those
Speaker 1: subjects in a way that some nominees managed to avoid
Speaker 1: talking about when they get Well, he he may have
Speaker 1: to answer some questions about what he did or didn't
Speaker 1: do with regard to some of these matters as a
Speaker 1: lawyer in the administration. But when he gets on the
Speaker 1: bench he will not hear any case. But he has
Speaker 1: worked on as a lawyer. Carl, that seems that that
Speaker 1: might eliminate a lot of cases, particularly for this court
Speaker 1: in the coming years. The White House could decide to
Speaker 1: assert legal privilege over his communications with the president. Is
Speaker 1: that a good move? Well, it's possible. But remember Kagan
Speaker 1: actually had to recuse, and she did on occasion because
Speaker 1: of her role as Solicitor General, and I expect if
Speaker 1: Catches is confirmed, he would do the same if he
Speaker 1: were closely involved. I think his principal responsibility has been
Speaker 1: vetting judicial nominees, but he may have been involved in
Speaker 1: um some activities like the Executive Order on immigration, other
Speaker 1: controversial issues that may be in litigation, and I agree
Speaker 1: with Bryan he may well recuse if he's directly involved
Speaker 1: in those matters. It's also interesting to note will he
Speaker 1: answer questions uh involving any of that in hearing, which
Speaker 1: I expect will come up, and he may just defer
Speaker 1: and say, you know, I can't um and claim some
Speaker 1: kind of privilege, Uh, Brian, Brian, given that this is
Speaker 1: you know, the d C Circuit is such an important court,
Speaker 1: and I think you have three justices on the Supreme
Speaker 1: Court that had served there, and certainly it's been a
Speaker 1: place that is something of a pipeline deals with so
Speaker 1: many important governmental issues. I would imagine with a conservative
Speaker 1: nominee to this court, the Democrats might want to break
Speaker 1: him over the coals more than say, some other places.
Speaker 1: Do you expect that there we're going to have even
Speaker 1: though he probably will get confirmed. Do you say, do
Speaker 1: you think you're gonna have a lot of opposition from
Speaker 1: Democrats on this one? I'm gonna be honest with you,
Speaker 1: I don't think so. And I'm gonna give you two
Speaker 1: reasons why I don't think there's going to be that
Speaker 1: much opposition to him. Number One, Greg Katsas is a
Speaker 1: really nerdy, geeky guy. I know him personally. He does
Speaker 1: not come across as the face of evil, and so
Speaker 1: I don't think people are going to feel very intimidated
Speaker 1: by him, and I don't think they're going to think
Speaker 1: that he's going to destroy the republic. Number Two, I
Speaker 1: don't think he's being groomed for the United States Supreme Court.
Speaker 1: I think that if he were a woman or a minority,
Speaker 1: that would be more of a concern on the part
Speaker 1: of Democrats. But another white male from the d C Circuit,
Speaker 1: I just don't see that kind of person being someone
Speaker 1: that is a high likelihood of moving on to the
Speaker 1: Supreme Court. We're talking with Brian Fitzpatrick of Vanderbilt Law
Speaker 1: School and Carl Tobias of the University of Richmond's School
Speaker 1: of Law about President Trump's nominations to the federal courts.
Speaker 1: He made sixteen nominations yesterday, all of them very conservative,
Speaker 1: and the Democrats may be unhappy about it, but they're
Speaker 1: probably not going to be able to stop them. One
Speaker 1: possible exception to that, though, is uh is the nomination
Speaker 1: of the Minnesota Supreme Court justice to the Eighth Circuit,
Speaker 1: and Senator Al Franken is trying to to block that
Speaker 1: nomination of a justice named David Strass by using a
Speaker 1: procedure called a blue slip. Carl, can you explain to
Speaker 1: us what exactly what exactly is this procedure that Senator
Speaker 1: Franken is trying to use to block this nominee. Well,
Speaker 1: it's a hundred year old tradition that says for nominations
Speaker 1: to positions in the home state, whether appellate or district. Uh,
Speaker 1: the chair of the Judiciary Committee will not schedule a
Speaker 1: hearing unless both home state senators submit these blue slips
Speaker 1: saying that they can go forward. Protects the prerogatives of
Speaker 1: the home state senators and the minority in the Senate,
Speaker 1: So Brian tell us. Al Franken has given a couple
Speaker 1: of reasons as to why he will not turn in
Speaker 1: his blue slip for this candidate. Tell us what they are. Well,
Speaker 1: the only reason I will, I guess there are two
Speaker 1: reasons I've heard. Reason number one is David Strass is
Speaker 1: too conservative. Reason number two is that President Trump did
Speaker 1: not consult with al Franken enough before President Trump nominated him.
Speaker 1: So a lack of consultation and his jurisprudential philosophy is
Speaker 1: just too conservative for Sanator FRANKN. Carl Um. You know,
Speaker 1: Senator grass Lee, who who chairs the Judiciary Committee, has
Speaker 1: seems pretty committed to moving President Trump's judicial nominees towards confirmation.
Speaker 1: Is he likely to honor Senator Frankin's refusal to put
Speaker 1: in a blue slip. I think he will because Senator
Speaker 1: grass Lee followed the same process of requiring two blue
Speaker 1: slips in the last two years of the Obama administration
Speaker 1: when he was Chair of Judiciary, and had promised even
Speaker 1: after the election that he would continue to follow that practice.
Speaker 1: There's been a lot of pressure brought to bear on
Speaker 1: the Chair to change that, but I think he has
Speaker 1: fairly and efficiently scheduled hearings and move people as quickly
Speaker 1: as possible through the committee. UH. And so we'll just
Speaker 1: have to see, um what he does in this situation.
Speaker 1: It is the Chair's discretion, and in all eight years
Speaker 1: of Obama that was the practice UH to require to
Speaker 1: Home state senators blue slips. UM. So we'll see in
Speaker 1: the days and weeks ahead. Even more important, it seems
Speaker 1: to me, is the letter from the two Oregon senators
Speaker 1: yesterday essentially saying that there hadn't been consultation. They had
Speaker 1: a committee that set up to make some recommendations to
Speaker 1: the White House and then the President dominated despite that.
Speaker 1: In a letter to McGann the White House Council, UM,
Speaker 1: the senators suggested they would use their blue slips to
Speaker 1: block the nominee from yesterday. Brian, do you agree that
Speaker 1: Grassley will wait for or honor the blue slip tradition,
Speaker 1: because I've read reports that he signaled that he might
Speaker 1: go around it. I don't think he's going to honor
Speaker 1: them as an absolute rule. There has been some um
Speaker 1: uh oscillation or vacillation on how much weight the blue
Speaker 1: slips get over time. There was a period where they
Speaker 1: got substantial weight and not absolute weight. And so I
Speaker 1: suspect he will give some weight to a home state
Speaker 1: senator's refusal to return a blue slip, but I suspect
Speaker 1: that he'll be willing to override that if he feels
Speaker 1: like the senators do not have a very good reason
Speaker 1: for refusing to return the blue slip. And I will say, um,
Speaker 1: I don't think that David Strass's qualifications or his juris
Speaker 1: partential philosophy are in any way objectionable and are a
Speaker 1: decent basis for opposing him. But I will concede that
Speaker 1: I think the President does make a mistake when he
Speaker 1: does not consult with these senators before he makes these nominations.
Speaker 1: Will will consultation result in some kind of consensus pick
Speaker 1: between the President and the senators. Maybe not, but he
Speaker 1: at least ought to go through the motions and try
Speaker 1: to make the senators feel like they are being listened
Speaker 1: to before he makes these nominations, because I think he
Speaker 1: really just creates problems that are unnecessary when he doesn't
Speaker 1: do that well. Our thanks to Carl Tobias, professor at
Speaker 1: the University of Richmond School of Law, and Brian Fitzpatrick,
Speaker 1: a professor at Vanderbilt University Law School, for being here
Speaker 1: on Bloomberg Law. Coming up on Bloomberg Law, we're going
Speaker 1: to talk about Wells Fargo. It's rethinking how to do
Speaker 1: diversity training after a lawsuit claiming it discriminated against black brokers.
Speaker 1: UM it's taking a more focus grouped approach, and we're
Speaker 1: gonna be talking about whether or not that's a better
Speaker 1: way to approach the issue of diversity within the financial industry.