Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: President Biden and the Democratic led Senate confirmed a diverse
Speaker 1: slate of forty district and appellate judges in one beating
Speaker 1: out the first year totals for every president since Ronald Reagan.
Speaker 1: He diversified the bench, doubling the number of black women
Speaker 1: at the circuit court level. Of those nominees, twenty were Black,
Speaker 1: fourteen were Hispanic or Latino, thirteen were Asian American and
Speaker 1: Pacific Islander, and three were Native American. And there were
Speaker 1: a number of firsts, the first openly LGBT woman appointed
Speaker 1: to a federal circuit court, the first black judge on
Speaker 1: the Federal Circuit Court of Appeals, the first Asian American
Speaker 1: woman on the d C Circuit Court, and the first
Speaker 1: Muslim federal judge. But Biden will face more challenges getting
Speaker 1: judges confirmed in two especially since could be a closing
Speaker 1: window after the mid term elections period. Discuss those challenges
Speaker 1: as Bloomberg Law. Reporter Medisine Alder tell us broadly, what
Speaker 1: has Biden accomplished as far as judicial vacancies in his
Speaker 1: first year. I'm not a historic here of judicial nomination
Speaker 1: he confirmed with the help of Democratic lead Senate, forty
Speaker 1: district and appellate judges, which is the most of any
Speaker 1: modern president since Ronald Reagan. And a lot of those
Speaker 1: nominees were very diverse. They brought both professional and demographic
Speaker 1: diversity to their respective courts, which was a really big
Speaker 1: priority for the Biden administration as well. So tell us
Speaker 1: about the different kinds of diversity. So in addition to
Speaker 1: demographic diversity, you know, Biden has prioritized nominating people who
Speaker 1: don't have a traditional path to the bench professionally. That
Speaker 1: includes people who have experienced as public defenders. It's probably
Speaker 1: the biggest group. About of his nominees so far have
Speaker 1: has some public defense experience, according to the Alliance for Justice,
Speaker 1: which is the progressive legal um advocacy group, And that
Speaker 1: means that Biden's nominees are kind of unique in this way,
Speaker 1: you know, particular to him and in this administration. They're
Speaker 1: not just demographically diverse. So many of them women, many
Speaker 1: of them have been women of color. They also have
Speaker 1: this added factor of having a background that is very
Speaker 1: different for the federal judiciary. So were the progressive groups
Speaker 1: happy about this, where they pleased with his progress. Biden
Speaker 1: has largely met expectations from progressives in terms of the
Speaker 1: diversity of his nominees. At the beginning of the administration,
Speaker 1: progressives really hopeful that Biden would bring more diversity to
Speaker 1: the federal judiciary and do it quickly, considering that he
Speaker 1: has experience as the chairman of the Senate Judiciary Committee.
Speaker 1: He's the nominations on the other side of of this
Speaker 1: before so um they were really hopeful that he would
Speaker 1: make good on on these promises and efforts. And then
Speaker 1: White House Consuladina Remis laid out to Democrats early on
Speaker 1: the administration that they wanted more demographic diversity, more professional diversity,
Speaker 1: and I think progressive groups have have largely been pretty
Speaker 1: pleased with with the way the Biden handled his first year.
Speaker 1: So though of the nominees were Hispanic or Latino, some
Speaker 1: Hispanic and Latino groups express frustration with that. The Mexican
Speaker 1: American Legal Defense and Educational Fund was disappointed with Biden's
Speaker 1: decision to announce intent to nominate Michelle Child to the
Speaker 1: DC Circuit. This is the second DC circuit they can
Speaker 1: see that Biden has had opened. The DC circuit is
Speaker 1: obviously a very important court um often seen as the
Speaker 1: second highest court in lance the Supreme Court. And Mulda
Speaker 1: was really hoping to see the first Latino nominated the
Speaker 1: DC Circuit. This would have been the first in history.
Speaker 1: And I spoke to Thomas Science, who's the President General
Speaker 1: Council of Maldus. He says that they forwarded nominations for
Speaker 1: the White House. They were talking to them, but ultimately
Speaker 1: Michelle Child, who is a black woman, was the intended nominee.
Speaker 1: They're disappointed with this. They're also disappointed with the nominations
Speaker 1: to one of the California district courts, which they believed
Speaker 1: didn't include as many Hispanic and Latino nominees as as
Speaker 1: it could have. So they'd like to see more of
Speaker 1: this in two and Science told me that there are
Speaker 1: certainly seats that they're they're going to be watching for
Speaker 1: for Hispanic and Latino nominees. And certainly there were a
Speaker 1: lot of first in terms of judicial appointments, the first
Speaker 1: openly LGBT woman on a federal circuit court, the first
Speaker 1: black judge on the Federal Court of Appeals, the first
Speaker 1: Muslim federal judge, to name a few. But there are
Speaker 1: still possibilities for more first, so tell us about correct.
Speaker 1: Jill dash the American Constitution Society told me that she's
Speaker 1: going to be looking for Biden to increase diversity, naming
Speaker 1: more LGBT, fugh lawyers, labor side attorneys. But also she's
Speaker 1: gonna be watching for vacancies on the third Circuit, which
Speaker 1: has never had a black woman before, and the District
Speaker 1: of Idaho, which has never had a female judge in
Speaker 1: its history. Some are calling for nominees who are disabled
Speaker 1: or who have the background in disability law. Rokim brooks Um,
Speaker 1: president of the progressive judicial advocacy group Alliance for Justice,
Speaker 1: told me that he's looking for more nominees are some
Speaker 1: of the first cominies that would have experience and disability
Speaker 1: law or ours themselves disabled. That's going to be another
Speaker 1: group of of nominees that that Biden could pull firm
Speaker 1: for the first time into two. Let's talk about the
Speaker 1: fact that the overwhelming majority of his nominees so far
Speaker 1: we're in states represented by two Democrats in the Senate.
Speaker 1: Explain the blue slip procedure. The blue slip rule is
Speaker 1: a practice in the Senate in which home state senators
Speaker 1: signify their support for a nominee in their state. In
Speaker 1: Under the last administration, the Republican led Senate did away
Speaker 1: with this rule for for circuit court appointments. They stopped
Speaker 1: treating it like a veto. Democrats have said that they're
Speaker 1: doing the same thing this time around now that they're
Speaker 1: in the majority, and that means that at the district
Speaker 1: court level, blue state seats are going to be the
Speaker 1: easiest ones for Biden to work with. He might have
Speaker 1: to negotiate more with states that have at least one
Speaker 1: Republican senator. That there has been a nomination to a
Speaker 1: district court seat in Ohio, which has a long history
Speaker 1: of partisan collaboration between the two senators there, one Democrat
Speaker 1: and one Republican, and then there has been a nomination
Speaker 1: at the circuit court level to a red state, which
Speaker 1: is Tennessee, that is andre massive for the sixth circuits.
Speaker 1: Is Biden just shying away from confrontations with Republican senators
Speaker 1: or are there other reasons why he hasn't been moving
Speaker 1: forward in states with Republican senators. There's different opinions about this.
Speaker 1: I don't think it's clear necessarily what the Biden administration
Speaker 1: is doing at this point. But you know, sources that
Speaker 1: watch this process closely have told me that the bind
Speaker 1: administration could just be dealing with low hanging fruit, dealing
Speaker 1: with circuit court vacancies and district court vacancies in blue
Speaker 1: states in the first year. But there are vacancies in
Speaker 1: in red states and purple states, both at the district
Speaker 1: and circuit court level, that Biden will probably have to
Speaker 1: deal with in which could create a bit more difficulty
Speaker 1: in judicial nominations for for this year. U nine Mathis
Speaker 1: for the Tennessee seat on the sixth Circuit. Tell us
Speaker 1: what happened there was a problem when he made a
Speaker 1: nomination in a red state, Right Andre Mathis, Biden's first
Speaker 1: nominee to a red state. We contented criticism from the
Speaker 1: two Republican senators there because they didn't feel they were
Speaker 1: consulted on the nomination. The White House definitely responded to this.
Speaker 1: They said that that they had consulted with the Tennessee
Speaker 1: senators meaningfully. So so there is a bit of a
Speaker 1: disagreement there. But what the disagreement between the White House
Speaker 1: and the senators really highlights is the difficulty the Biden
Speaker 1: couldn't be approaching with other circuit seats if they're if
Speaker 1: they're choosing to negotiate, but also a district seats could
Speaker 1: be an impediment to those which still for all intents
Speaker 1: and purposes, require blue slips from from home state senators,
Speaker 1: though Senator Servant, who is the chairman of the of
Speaker 1: the Judiciary Committee, has said that he would potentially do
Speaker 1: away with blue flips if Republicans are are objecting the process. UM,
Speaker 1: and that's going to be a call that the Democrats make,
Speaker 1: and there's an urgency to fill these slots in two
Speaker 1: before the Senate may change hands. And that's an added
Speaker 1: pressure in two for the Biden administration if Democrats lose
Speaker 1: the Senate during mid terms UM, or even just the
Speaker 1: pressure that the midterm elections will will put on members
Speaker 1: of Congress UM. That's just another factor that's playing out
Speaker 1: in the background for nominations this year. The Biden administration
Speaker 1: has been moving very quickly, but they'll likely have to
Speaker 1: maintain the pace this year UM with mid terms potentially
Speaker 1: threatening their splin Senate majority. You talked to Ed Wheeland
Speaker 1: of the Ethics and Public Policy Center, and he said
Speaker 1: he's delivered on his adversity promise. I think he said
Speaker 1: a bar so high, I'd be surprised if he's able
Speaker 1: to maintain it. Well. Biden's diversity with his nominees in
Speaker 1: this first year has been pretty remarkable, and especially you
Speaker 1: take into account professional diversity and demographic diversity. UM So,
Speaker 1: I think what um Ed Whelan is saying here is
Speaker 1: that you know, in year two, Um Biden is said
Speaker 1: quite a high bar for himself. Uh. And we'll have
Speaker 1: other factors to take into account in two as groups
Speaker 1: on the left are pushing for Biden to even further
Speaker 1: diversify his nominations. So now there's one area where Biden
Speaker 1: has not been able to make any appointments, and that
Speaker 1: is the Supreme Court. People are looking again at Justice
Speaker 1: Brier to see if he'll retire before the midterms. Have
Speaker 1: we heard anything at all, If we've heard anything, if
Speaker 1: it hasn't gotten to me yet, Justice Brier is going
Speaker 1: to be the one that has to make this decision ultimately,
Speaker 1: but progress that they're very hopeful. Uh, he will decide
Speaker 1: to retire at the end of this firm, and Biden
Speaker 1: would have a Supreme Court appointment before the midterms. He's
Speaker 1: indicated that he will put a black woman on the
Speaker 1: Supreme Court. Has he mentioned any names. Biden hasn't mentioned
Speaker 1: any names publicly, but Biden doubled the number of black
Speaker 1: women judges at the circuit court level in um was
Speaker 1: his first four circuit court appointments. Um, so he's he's
Speaker 1: definitely building that that pipeline. And then two of those
Speaker 1: um or I should say, one of those nominees who's
Speaker 1: been confirmed, Umkatanti Brown Jackson has thought of as a
Speaker 1: candidate potentially if there were Supreme Court vacancy. And then
Speaker 1: Biden's nominee for the DC Circuit Michelle child Um, who
Speaker 1: has yet to be formally nominated. She is also seen
Speaker 1: as a potential candidate for a vacancy. So um, he's
Speaker 1: he's definitely building that pipe. One. So it looks like
Speaker 1: it's going to be another interesting knee year of judicial nominations.
Speaker 1: Thanks so much, Madison. That's Bloomberg Law reporter Medicine alder.
Speaker 1: As the Supreme Court faces calls for broader structural changes,
Speaker 1: Chief Justice John Roberts stressed the importance of judicial independence
Speaker 1: from congressional mandates in his annual Year and Report released
Speaker 1: on Friday. Joining me is Professor Harold Crent of Chicago
Speaker 1: Kent College of Law. In the face of what some
Speaker 1: would call a legitimacy crisis for the courts, and particularly
Speaker 1: the Supreme Court is facing some of its lowest approval numbers.
Speaker 1: Did the Chief address that. The Chief to not address
Speaker 1: the importance of an independent judiciary and the importance of
Speaker 1: public having faith in judiciary directly. What he did instead
Speaker 1: was trying to parry pending efforts of Congress to regulate
Speaker 1: the judiciary. And he did that directly by saying, we
Speaker 1: have the ability to put our own house and order,
Speaker 1: by beefing up efforts to combat ethics stylations, by beefing
Speaker 1: up efforts to combat any kind of workplace harassment. So
Speaker 1: Congress hands off, You don't need to regulate us. We
Speaker 1: can more effectually regulate ourselves in the long run. What
Speaker 1: he was trying to do was emphasized the importance of
Speaker 1: an independent judiciary apart from any kind of congressional regulation.
Speaker 1: The two issues that he concentrated on, how the judiciary
Speaker 1: handles financial disclosures and workplace harassment. Those are issues that
Speaker 1: the judiciary has faced for quite some time. Has it
Speaker 1: shown it's capable of policing itself. Well, there have been
Speaker 1: efforts by the judiciary to take complaints with respect to
Speaker 1: judicial misconduct. Indeed, Congress set up a statute in to
Speaker 1: allow judges and to organize judges to receive complaints of
Speaker 1: wrongdoing about their fellow judges and follow a process of
Speaker 1: inquiry and ultimate sanction. But obviously there are still problems
Speaker 1: that happened, and most notably there was a Ninth Circuit judge,
Speaker 1: Judge Kozinski, who was accused of serious sexual peccadillos um
Speaker 1: and was forced to resign a number of years ago. Obviously,
Speaker 1: we don't know about other kinds of complaints that are continuing,
Speaker 1: but there are some. And I think what the chief
Speaker 1: was saying is we're not perfect, and we knew we
Speaker 1: do need to take more efforts, but we've done a
Speaker 1: pretty good job so far. Maybe he's right, maybe he's wrong,
Speaker 1: but that's the tone of his message. He referred to
Speaker 1: a Wall Street Journal investigation that found hundreds of instances
Speaker 1: where judges presided over cases involving companies that they or
Speaker 1: their relatives held stock in, but the journals that it's
Speaker 1: subsequent reporting found that the actual number of cases was
Speaker 1: significantly higher, with at least nine and fifty recusal violations.
Speaker 1: Is anyone policing whether or not judges step down when
Speaker 1: there's a conflict of interest? Well, the judicial the mystery
Speaker 1: of office, the u S courts, and the didicitial confidence
Speaker 1: should be exercising their oversight authority to gauge whether there
Speaker 1: are such kinds of failures to recuse. I do want
Speaker 1: to add that a lot of these recusal um requirements
Speaker 1: are formalistic, and by that I mean if someone owns
Speaker 1: a share of stock or five share of stock, even
Speaker 1: if it's an unutual fund um, one should we choose oneself.
Speaker 1: And obviously we don't usually think that a judge will
Speaker 1: be biased because of owning five shares of stock and
Speaker 1: some kind of mutual fund, but nonetheless they're important. Um.
Speaker 1: The Chief Justice Roberts recognizes that those rules, even if
Speaker 1: they are formalistic, are important to prevent financial influence from
Speaker 1: entering the fray and from making sure the public has
Speaker 1: faith in the judiciary, and so he is pledged to
Speaker 1: work with the Judicial Conference to improve technology to help
Speaker 1: enforce these requirements more stringently. So do I think this
Speaker 1: is the most serious violation of judicial independence? I don't UM.
Speaker 1: But I do think that that Walsing journal was right
Speaker 1: to call out the judiciary UM, and the judiciary should
Speaker 1: redouble its efforts in order to prevent that kind of
Speaker 1: The Chief was as one of three justices who have
Speaker 1: had to recuse themselves because they found out that they
Speaker 1: own stock in a company. Is the question whether judges
Speaker 1: should own stock in individual companies at all? Well, it's
Speaker 1: difficult in this day and age, given their companies operate
Speaker 1: under different names and their um internationally connected in different ways,
Speaker 1: to really figure out how to police against financial interests
Speaker 1: in a in a proceeding. Some people have recommended that
Speaker 1: there's a blind trust that once you're a president or
Speaker 1: a judge, that you should have somebody else to manage
Speaker 1: your money so that you can't possibly be, you know,
Speaker 1: affected by some kind of financial bias. And I do
Speaker 1: think that this we try to draw the line to
Speaker 1: prevent very clearly. Uh, But really in some ways it's
Speaker 1: a over enforcement because I don't think that owning, you know,
Speaker 1: fifty shares of stock point five shares of stock in
Speaker 1: an entire portfolio will really change someone's perspective on the vote.
Speaker 1: And sometimes people don't even know the stock that they
Speaker 1: own just because it's owned in some kind of mutual funds.
Speaker 1: So it is a problem given financial holdings what they are.
Speaker 1: And I do think that better technology and more rigorous
Speaker 1: enforce ment is appropriate, But I don't think that our
Speaker 1: judiciary is riddled with financial self interest. Does the judiciary
Speaker 1: have an ethics code? Does the Supreme Court have an
Speaker 1: ethics code? Well, there is a I don't believe that
Speaker 1: there's an ethical code specific the Supreme Corporate. There certainly
Speaker 1: is an ethics code for the judiciary, and the Judicial
Speaker 1: Conference does can pass um rules that had past rules
Speaker 1: or to maintain the highest sort of level of professionalism
Speaker 1: amongst the court. One of the things that the report
Speaker 1: does indicate, though, that there has historically been we might
Speaker 1: call incivility, we might cause sort of those kinds of
Speaker 1: petty uh problems that happen in the workplace. And there
Speaker 1: has not been a great deal of historical attention paid
Speaker 1: to what it means to be civil in terms of
Speaker 1: a judge to a bailiff, or a judge to a
Speaker 1: court clerk or two litigants themselves. And I'm glad that
Speaker 1: at least in some ways Chief Justice roperators giving some
Speaker 1: attention to that by creating task forces to better educate
Speaker 1: and to take complaints from both workers and litigants when
Speaker 1: judges do burst out into profanity or uh criticize what
Speaker 1: someone is wearing, because those kinds of incidents have not
Speaker 1: been police historically, and just by hearsay an anecdote, UM,
Speaker 1: I think they take place far more often than does
Speaker 1: any kind of financial impropriety. When I hear Congress is
Speaker 1: going to establish a task force or any organization is
Speaker 1: going to establish a task force, it just seems like
Speaker 1: that's kicking the can down the road. I mean, what
Speaker 1: do task forces really accomplish. Yeah, sometimes it's information gathering
Speaker 1: and one needs information. But at the same time, there
Speaker 1: are some structures now in place. There are complaints that
Speaker 1: can be filed against judges, and each Circuit Digital Council
Speaker 1: has to have a mechanism for allowing those complaints and
Speaker 1: then for investigating those complaints. So that is actual progress
Speaker 1: it is in place. UM. Whether there is appropriate sensitivity
Speaker 1: training to say to put it that way, um, and
Speaker 1: whether there's a task force to figure out what you
Speaker 1: go into that set sensitivity training, I don't know that.
Speaker 1: I think there's probably more reason to be skeptical of that,
Speaker 1: but again there has been at least some progress made
Speaker 1: that people who are outraged at the behavior of judges,
Speaker 1: whether again employed to employees or lit against, can can
Speaker 1: request some kind of answer and that the councils will
Speaker 1: investigate those kinds of charges. So we're not all the
Speaker 1: way there, but there has been progressed. So now, there
Speaker 1: was legislation that passed the House about judicial financial reporting,
Speaker 1: past the House by a margin of FO two to
Speaker 1: four in December. We'll see what happens in the Senate.
Speaker 1: And there's also separate legislation that would give judiciary workers
Speaker 1: the same anti discrimination rights and whistleblower protections as other
Speaker 1: federal employees. That's pending, but does it seem as if
Speaker 1: something is going to happen. There's going to be some
Speaker 1: legislation passed in the near future regarding the judiciary, and
Speaker 1: the judiciary historically has opposed any kind of extension of
Speaker 1: whistle or statutes or any kind of discrimination statutes to
Speaker 1: the judiciary. Um they want to keep it in House,
Speaker 1: just as Congress does. Congress has been wrote to require
Speaker 1: its own members to fulfill the same kinds of requirements
Speaker 1: as in a private workforce, and I've now there, I
Speaker 1: think that the judiciary maybe on weak ground. I think
Speaker 1: it's probably is appropriate to apply those kinds of antiscremation
Speaker 1: and whistle lower statutes equally to the private sector as
Speaker 1: as to the judiciary and to members of Congress. Were
Speaker 1: there any surprises because the Chief Justice has been talking
Speaker 1: about the importance of the independence of the judiciary as
Speaker 1: long as I can remember. He has been talking about it.
Speaker 1: And what is in some ways disappointing is he ignores
Speaker 1: the big question about the legitimacy of the Supreme Court
Speaker 1: in the public eyes. We know that the public has
Speaker 1: less faith in an independent judiciary than has in sometime
Speaker 1: despite the Chief's efforts. We know that there's greater politicization
Speaker 1: on the court. We know that even the way the
Speaker 1: justices react to issues such as abortion or the the
Speaker 1: right to own guns or voting rights m are very partisan.
Speaker 1: Um and they've they've written in the person away. And
Speaker 1: so this report the ignores the fact that members of
Speaker 1: his own court seem to stand the flames of partisanship,
Speaker 1: and therefore in gender which I mean sort of endanger
Speaker 1: what the Chief himself believes is a large problem confronting
Speaker 1: the judiciary, which is the public's faith in an independent judiciary.
Speaker 1: This term, the Court has taken up a lot of
Speaker 1: controversial social issues, abortion, gun rights, some religion cases. It
Speaker 1: now is taking on the vaccine mandate. Are these cases
Speaker 1: that the Court couldn't avoid or are they deliberately putting
Speaker 1: themselves into the maelstrom of what's happening in society with
Speaker 1: over these issues. I think for the most part, the
Speaker 1: Court is acting appropriately. There are splits in many of
Speaker 1: the circuits on some of these issues, such as the
Speaker 1: both the abortion case as cases as well as the
Speaker 1: Second Amendment cases. Um the vaccination case is very important
Speaker 1: for the Court to address. Uh So I think the Court,
Speaker 1: the most party, is not reaching out to to get
Speaker 1: mired in controversy. What is acting consistently with what it's
Speaker 1: done in the past in terms of when there's a
Speaker 1: split amongst the lower courts resolved that split. And if
Speaker 1: something is very important to the future of the country,
Speaker 1: whether it's the question about the OCEHA and requiring vaccinations,
Speaker 1: or perhaps even it's it's about the subpoenas and the
Speaker 1: January six movement, they should address those issues. And of
Speaker 1: course we're waiting to see whether they'll weigh in on
Speaker 1: the last one or not. And the Justices are going
Speaker 1: to be addressing the vaccine mandate question this Friday in
Speaker 1: the first oral arguments of the term. Thanks Hal, that's
Speaker 1: Harold cranned to professor at the Chicago Kent College of Law,
Speaker 1: and that's if in the edition of The Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news by
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