1 00:00:00,160 --> 00:00:04,560 Speaker 1: This is Bloomberg Law with June Grasso. After a decade 2 00:00:04,559 --> 00:00:08,959 Speaker 1: long hiatus, President Trump wants to resume federal executions, and 3 00:00:09,000 --> 00:00:12,000 Speaker 1: two of his judicial appointees have brought him a step 4 00:00:12,039 --> 00:00:16,239 Speaker 1: closer to that goal. Trump appointees Gregory Katsis and Naomi 5 00:00:16,400 --> 00:00:19,640 Speaker 1: Rao on the d C. Circuit Court of Appeals upended 6 00:00:19,680 --> 00:00:22,919 Speaker 1: an injunction that had stopped the Justice Department from carrying 7 00:00:22,920 --> 00:00:25,880 Speaker 1: out the death penalty. Joining me is Jordan Reuben Bloomberg 8 00:00:26,000 --> 00:00:29,680 Speaker 1: Law Editor Jordan. This was a split decision two to one. 9 00:00:29,920 --> 00:00:33,919 Speaker 1: The two Trump appointees versus a Clinton appointee tell us 10 00:00:33,920 --> 00:00:37,680 Speaker 1: about it. So last summer, Attorney General William Barr announced 11 00:00:37,680 --> 00:00:41,839 Speaker 1: that the federal government was going to resume federal executions, 12 00:00:41,920 --> 00:00:45,840 Speaker 1: and with it unveiled a new protocol for doing so. 13 00:00:46,280 --> 00:00:50,600 Speaker 1: The problem with that, according to litigation brought by several 14 00:00:50,640 --> 00:00:54,360 Speaker 1: federal prisoners, is that this protocol runs a foul of 15 00:00:54,960 --> 00:00:58,320 Speaker 1: multiple laws, according to them, including something called the Federal 16 00:00:58,360 --> 00:01:02,360 Speaker 1: Death Penalty Act, which puts pretty stringent requirements according to 17 00:01:02,360 --> 00:01:05,320 Speaker 1: them anyway, on how the government is allowed to carry 18 00:01:05,319 --> 00:01:08,399 Speaker 1: out executions. And so what we've seen in this latest 19 00:01:08,440 --> 00:01:12,800 Speaker 1: decision is the latest ruling on this very complex litigation 20 00:01:12,840 --> 00:01:17,280 Speaker 1: about capital punishment. So the Federal Death Penalty Act says, 21 00:01:17,360 --> 00:01:20,360 Speaker 1: the manner in which the death sentence is imposed is 22 00:01:20,400 --> 00:01:23,480 Speaker 1: prescribed by the law of the state where it's being 23 00:01:23,560 --> 00:01:29,640 Speaker 1: carried out. Explain why that seems to be a critical problem, right, 24 00:01:29,760 --> 00:01:32,800 Speaker 1: So the arguments really are being fought on this sort 25 00:01:32,840 --> 00:01:36,560 Speaker 1: of hyper technical ground that almost all comes down to 26 00:01:36,840 --> 00:01:40,319 Speaker 1: what the word manner means. The debate, or at least 27 00:01:40,360 --> 00:01:43,840 Speaker 1: a big part of it anyway, is whether manner means just, 28 00:01:44,280 --> 00:01:47,559 Speaker 1: let's say, the type of execution, say, whether it's lethal 29 00:01:47,560 --> 00:01:51,080 Speaker 1: injection versus e execution, or whether it's really getting much 30 00:01:51,080 --> 00:01:53,760 Speaker 1: more into the minutia of that, say, when it comes 31 00:01:53,800 --> 00:01:57,840 Speaker 1: to lethal injection, whether it means really how that specific 32 00:01:57,960 --> 00:02:01,560 Speaker 1: lethal injection is being in minister. So the prisoners, of 33 00:02:01,600 --> 00:02:04,920 Speaker 1: course are arguing for the latter interpretation, and the Trump 34 00:02:04,920 --> 00:02:08,639 Speaker 1: administration is arguing for the former, and there are many 35 00:02:08,720 --> 00:02:12,000 Speaker 1: arguments about that. And even in this latest decision, even 36 00:02:12,000 --> 00:02:14,000 Speaker 1: though this was a two to one decision with the 37 00:02:14,040 --> 00:02:18,320 Speaker 1: two Trump appointees in the majority, even within them they 38 00:02:18,320 --> 00:02:21,720 Speaker 1: didn't totally agree on the analysis of why it is 39 00:02:22,040 --> 00:02:25,680 Speaker 1: that the prisoners should lose So will the prisoners here 40 00:02:26,080 --> 00:02:29,200 Speaker 1: ask for an on bank review by the full DC 41 00:02:29,440 --> 00:02:32,280 Speaker 1: Circuit and is there a good chance of getting that 42 00:02:32,480 --> 00:02:38,239 Speaker 1: since the two judges in the majority here had differing reasons. Well, 43 00:02:38,520 --> 00:02:41,160 Speaker 1: taking the first part of that question, I think that 44 00:02:41,200 --> 00:02:45,360 Speaker 1: there is a good chance that the plaintiff prisoners will 45 00:02:45,400 --> 00:02:47,880 Speaker 1: seek further review in front of the full on Bank 46 00:02:48,000 --> 00:02:51,799 Speaker 1: DC Circuit. That's at least according to a statement from 47 00:02:51,840 --> 00:02:55,120 Speaker 1: their lawyer following the ruling that at least hinted at that. 48 00:02:55,320 --> 00:02:58,360 Speaker 1: Now the opinion itself said that the case should be 49 00:02:58,400 --> 00:03:01,320 Speaker 1: sent back to the trial court, where there are even 50 00:03:01,400 --> 00:03:04,200 Speaker 1: more issues than just this federal Death Penalty Act. So 51 00:03:04,240 --> 00:03:06,480 Speaker 1: there are multiple directions in which the case could go, 52 00:03:06,560 --> 00:03:09,520 Speaker 1: whether it's going further back down to the trial courts, 53 00:03:09,560 --> 00:03:12,320 Speaker 1: so to speak, or further back up to the full 54 00:03:12,320 --> 00:03:15,360 Speaker 1: on Bok DC Circuit, and then potentially even to the 55 00:03:15,400 --> 00:03:18,960 Speaker 1: Supreme Court, where this case actually was back in December 56 00:03:19,040 --> 00:03:21,079 Speaker 1: until it went back down to the d C Circuit 57 00:03:21,120 --> 00:03:23,480 Speaker 1: against We're seeing a lot of up and down with 58 00:03:23,600 --> 00:03:27,120 Speaker 1: this very complex litigation. Tell us what happened at the 59 00:03:27,160 --> 00:03:30,120 Speaker 1: Supreme Court and whether there were any hints from any 60 00:03:30,120 --> 00:03:33,519 Speaker 1: of the justices about how they might finally rule in 61 00:03:33,560 --> 00:03:36,880 Speaker 1: a case like this, right, So, taking us all the 62 00:03:36,920 --> 00:03:40,560 Speaker 1: way back to December, if we can remember that time, 63 00:03:40,640 --> 00:03:45,200 Speaker 1: that's when the federal government wanted to jump start these executions, 64 00:03:45,200 --> 00:03:48,320 Speaker 1: so to speak. And so after the federal trial judge 65 00:03:48,360 --> 00:03:53,160 Speaker 1: and Washington in November preliminarily enjoined the government from carrying 66 00:03:53,160 --> 00:03:56,200 Speaker 1: out these executions, the government then saw it on a 67 00:03:56,280 --> 00:03:59,560 Speaker 1: very expedited basis to try and get that ruling overturned. 68 00:03:59,800 --> 00:04:02,040 Speaker 1: And so that took them all the way up to 69 00:04:02,640 --> 00:04:06,360 Speaker 1: the Supreme Court, where in December the Supreme Court did 70 00:04:06,400 --> 00:04:10,160 Speaker 1: not rule in the government's favor. However, three justices of 71 00:04:10,280 --> 00:04:13,560 Speaker 1: Samuel Ledo, Neil Gorsuch, and Brett Kavanaugh said in a 72 00:04:13,640 --> 00:04:16,760 Speaker 1: statement at the time essentially that the government should win 73 00:04:17,000 --> 00:04:19,280 Speaker 1: and if the case comes back to them on the 74 00:04:19,320 --> 00:04:22,560 Speaker 1: merits of the dispute, then at least those three justices 75 00:04:22,640 --> 00:04:25,760 Speaker 1: are likely to rule for the government. And how has 76 00:04:25,800 --> 00:04:31,320 Speaker 1: the Supreme Court ruled on death penalty cases in general? Well, 77 00:04:31,520 --> 00:04:34,160 Speaker 1: the death penalty being a controversial issue not just at 78 00:04:34,200 --> 00:04:37,400 Speaker 1: the Supreme Court but everywhere, of course, is nothing new. However, 79 00:04:37,760 --> 00:04:40,520 Speaker 1: at the Supreme Court in very recent years we have 80 00:04:40,640 --> 00:04:44,960 Speaker 1: seen very very contentious disputes among the justices with them 81 00:04:44,960 --> 00:04:49,520 Speaker 1: breaking along these sort of typical five for ideological wines. 82 00:04:49,680 --> 00:04:52,400 Speaker 1: And there's good reason to think that if this case 83 00:04:52,480 --> 00:04:55,839 Speaker 1: does wind up ultimately getting resolved at the Supreme Court, 84 00:04:56,120 --> 00:04:58,440 Speaker 1: that we will see a break along those lines. Although 85 00:04:58,480 --> 00:05:00,320 Speaker 1: we will just have to see how this one please 86 00:05:00,360 --> 00:05:03,120 Speaker 1: out there. This doesn't mean that the Justice Department can 87 00:05:03,240 --> 00:05:08,440 Speaker 1: start executions. What has to happen next, right, So I 88 00:05:08,480 --> 00:05:12,560 Speaker 1: think partly what happens next will be guided by whether, 89 00:05:12,720 --> 00:05:15,720 Speaker 1: as we discussed, the plaintifts do seek a full on 90 00:05:15,920 --> 00:05:18,679 Speaker 1: bank review from the d C Circuit, and then, in turn, 91 00:05:19,040 --> 00:05:21,680 Speaker 1: if they do what the full DC Circuit says, and 92 00:05:21,680 --> 00:05:26,000 Speaker 1: then potentially even what the Supreme Court says, alternatively, whether 93 00:05:26,040 --> 00:05:28,479 Speaker 1: they want to continue to fight the case back down 94 00:05:28,600 --> 00:05:31,279 Speaker 1: at the trial court level. So in terms of the 95 00:05:31,320 --> 00:05:34,480 Speaker 1: next step, that will at least partly depend on what 96 00:05:34,560 --> 00:05:36,919 Speaker 1: the prisoners who just lost want to try to do 97 00:05:37,000 --> 00:05:39,719 Speaker 1: in terms of this litigation. So that's what we're waiting 98 00:05:39,720 --> 00:05:44,360 Speaker 1: to see next. Thanks, Jordan's that's Jordan Ruben Bloomberg, Law Editor. 99 00:05:45,600 --> 00:05:49,440 Speaker 1: President Trump is nominating a Kentucky judge once rejected by 100 00:05:49,440 --> 00:05:52,800 Speaker 1: the American Bar Association to the second highest court in 101 00:05:52,800 --> 00:05:55,640 Speaker 1: the land. Joining me is Carl Tobias, a professor at 102 00:05:55,680 --> 00:05:59,240 Speaker 1: the University of Richmond Law School. Carl tell us about 103 00:05:59,320 --> 00:06:02,520 Speaker 1: Justin Tucker, who hasn't been a district court judge for 104 00:06:02,600 --> 00:06:05,960 Speaker 1: all that long. That's right. He's been serving for several 105 00:06:06,000 --> 00:06:10,600 Speaker 1: months on the Western District of Kentucky since his confirmation. 106 00:06:11,480 --> 00:06:16,160 Speaker 1: He's very young, and he received a not qualified rating 107 00:06:16,400 --> 00:06:22,680 Speaker 1: from the American Bar Association principally because he hadn't practiced 108 00:06:23,000 --> 00:06:26,760 Speaker 1: long enough to satisfy the A B A. The letter 109 00:06:26,880 --> 00:06:29,520 Speaker 1: from the A B A also said, I think that 110 00:06:29,600 --> 00:06:33,479 Speaker 1: he didn't have sufficient practice experience to be a federal 111 00:06:33,520 --> 00:06:39,000 Speaker 1: district court judge, but it did suggest that he was 112 00:06:39,920 --> 00:06:44,440 Speaker 1: quite qualified in certain ways and certainly has very strong 113 00:06:44,480 --> 00:06:48,360 Speaker 1: academic credentials. And he clerked on this very court for 114 00:06:48,839 --> 00:06:51,680 Speaker 1: Judge Kavanaugh, who now is on the Supreme Court, and 115 00:06:51,720 --> 00:06:54,919 Speaker 1: then went on to clerk for Justice Kennedy on the 116 00:06:54,960 --> 00:06:59,479 Speaker 1: Supreme Court. And the A B A said that that 117 00:06:59,600 --> 00:07:04,120 Speaker 1: kind of qualification might be better suited to the appellate bench. 118 00:07:04,839 --> 00:07:07,640 Speaker 1: So we'll have to see what happens with the A 119 00:07:07,760 --> 00:07:11,080 Speaker 1: B A when it undertakes its evaluation. The A B 120 00:07:11,280 --> 00:07:15,480 Speaker 1: A ratings don't seem to be making much of a 121 00:07:15,600 --> 00:07:20,560 Speaker 1: difference when it comes to voting on these nominees. I 122 00:07:20,600 --> 00:07:25,760 Speaker 1: think that's very true. There have been nine Trump nominees 123 00:07:26,320 --> 00:07:29,120 Speaker 1: who were rated not qualified but the A B A, 124 00:07:29,560 --> 00:07:33,960 Speaker 1: and seven of them have been confirmed, three for the 125 00:07:34,040 --> 00:07:39,240 Speaker 1: appeals courts. So that gives you a sense of what 126 00:07:39,280 --> 00:07:43,560 Speaker 1: the Republican majority thinks about the A B A. Republicans 127 00:07:43,600 --> 00:07:45,920 Speaker 1: have been quite critical of the A B A. The 128 00:07:46,000 --> 00:07:52,280 Speaker 1: White House really doesn't use the evaluations or ratings in 129 00:07:52,320 --> 00:07:56,680 Speaker 1: any meaningful way. By contrast, President Obama nominated no one 130 00:07:56,840 --> 00:08:00,680 Speaker 1: who received an A B A not qualified eating just 131 00:08:00,840 --> 00:08:03,920 Speaker 1: because I think he believed that that was a sign 132 00:08:04,600 --> 00:08:08,360 Speaker 1: that there was some question about the qualifications, and so 133 00:08:08,480 --> 00:08:10,920 Speaker 1: he just didn't think it was worth it to go 134 00:08:11,080 --> 00:08:16,440 Speaker 1: forward with nominees who received that rating. Why not nominate 135 00:08:16,600 --> 00:08:20,960 Speaker 1: a judge who has more experience, who's more seasoned. I 136 00:08:21,040 --> 00:08:24,960 Speaker 1: know that he has Federalist society connections, and he forcefully 137 00:08:25,000 --> 00:08:31,200 Speaker 1: defended Justice Brett Kavanaugh for the Supreme Court nomination. Well, 138 00:08:31,760 --> 00:08:35,960 Speaker 1: he is a protege of the majority leader McConnell, and 139 00:08:36,040 --> 00:08:38,880 Speaker 1: they go back a long way, and he even did 140 00:08:38,920 --> 00:08:42,320 Speaker 1: I think a high school paper on McConnell's leadership in 141 00:08:42,360 --> 00:08:47,960 Speaker 1: the Senate, and McConnell recommended him strongly for the district bench, 142 00:08:48,240 --> 00:08:53,920 Speaker 1: and he was confirmed on a fifty vote. Uh. And 143 00:08:53,960 --> 00:08:58,560 Speaker 1: there were questions that Democrats raised about his qualifications, But 144 00:08:58,840 --> 00:09:02,960 Speaker 1: you're correct. Usually for the second most important court in 145 00:09:03,000 --> 00:09:08,920 Speaker 1: the country, the nominees do tend to be very seasoned, 146 00:09:09,720 --> 00:09:12,720 Speaker 1: and they come from all over the country, and he 147 00:09:12,800 --> 00:09:17,079 Speaker 1: fits that part of the model. But I believe no 148 00:09:17,160 --> 00:09:19,520 Speaker 1: one who is as young as he is has been 149 00:09:20,360 --> 00:09:24,360 Speaker 1: nominated for that court since the nineteen eighties. He would 150 00:09:24,360 --> 00:09:29,800 Speaker 1: be filling the spot that retiring Judge Griffith is leaving. 151 00:09:30,320 --> 00:09:35,160 Speaker 1: Isn't there controversy over his leaving that spot? Yes, there's 152 00:09:35,200 --> 00:09:39,040 Speaker 1: some controversy because a number of news outlets, including New 153 00:09:39,120 --> 00:09:47,000 Speaker 1: York Times, have questioned McConnell's approaching Republican appointees on the 154 00:09:47,040 --> 00:09:51,079 Speaker 1: federal bench and suggesting that they assume senior status now 155 00:09:51,640 --> 00:09:56,959 Speaker 1: so that President Trump can fill the vacancies, and suggesting 156 00:09:57,000 --> 00:09:59,760 Speaker 1: they might have to wait another eight years if President 157 00:10:00,080 --> 00:10:05,400 Speaker 1: Ump isn't reelected, and questions have been raised about that. 158 00:10:05,480 --> 00:10:09,199 Speaker 1: In fact, Demand Justice did submit a letter to the 159 00:10:09,280 --> 00:10:13,360 Speaker 1: Chief Judge of the d c Circuit asking for an investigation. 160 00:10:14,160 --> 00:10:18,760 Speaker 1: So does this nomination mean that that investigation is going nowhere? 161 00:10:20,040 --> 00:10:23,720 Speaker 1: Not necessarily. I mean, I think there is great discretion 162 00:10:23,800 --> 00:10:27,280 Speaker 1: in the Chief Judge of the Circuit to respond to 163 00:10:27,600 --> 00:10:31,480 Speaker 1: that allegation or the questions asked in the letter from 164 00:10:31,520 --> 00:10:35,320 Speaker 1: Demand Justice, and we'll see what the Chief Judge does. 165 00:10:35,600 --> 00:10:40,600 Speaker 1: And the allegations go to the question of whether something 166 00:10:40,960 --> 00:10:46,640 Speaker 1: might have been suggested to Judge Griffith, though I don't 167 00:10:46,760 --> 00:10:50,600 Speaker 1: think that Judge Griffith is in any way implicated. I 168 00:10:50,640 --> 00:10:57,280 Speaker 1: think it's mostly Leader McConnell and questions about the propriety 169 00:10:57,320 --> 00:11:01,440 Speaker 1: of his approaching judges like Judge Griffith and making the 170 00:11:01,480 --> 00:11:06,760 Speaker 1: suggestion that they retire or soon senior status. This follows 171 00:11:06,800 --> 00:11:10,880 Speaker 1: the nomination of Judge Corey Wilson to the Fifth Circuit. 172 00:11:11,480 --> 00:11:16,640 Speaker 1: His position on Obamacare is part of the Democrats and 173 00:11:16,720 --> 00:11:20,480 Speaker 1: healthcare groups resistance to him, and the same might be 174 00:11:20,640 --> 00:11:27,400 Speaker 1: said for Walker, since he called Obamacare the law indefensible. 175 00:11:27,760 --> 00:11:33,520 Speaker 1: The Democrats and many are concerned about the pandemic that's raging, 176 00:11:33,760 --> 00:11:37,680 Speaker 1: and so that's top of mind for members of the Senate, 177 00:11:38,400 --> 00:11:44,120 Speaker 1: and I expect they could well question the nominee when 178 00:11:44,160 --> 00:11:48,640 Speaker 1: his hearing occurs. Thanks Carl. That's Carl Tobias of a 179 00:11:48,760 --> 00:11:53,000 Speaker 1: University of Richmond Law School. Thanks for listening to the 180 00:11:53,000 --> 00:11:56,400 Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the 181 00:11:56,400 --> 00:12:00,360 Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com 182 00:12:00,400 --> 00:12:10,640 Speaker 1: slash podcast. I'm June Rosso. This is Bloomberg. M HM.