WEBVTT - Trump-Appointed Judges Give President Execution Win

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<v Speaker 1>This is Bloomberg Law with June Grasso. After a decade

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<v Speaker 1>long hiatus, President Trump wants to resume federal executions, and

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<v Speaker 1>two of his judicial appointees have brought him a step

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<v Speaker 1>closer to that goal. Trump appointees Gregory Katsis and Naomi

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<v Speaker 1>Rao on the d C. Circuit Court of Appeals upended

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<v Speaker 1>an injunction that had stopped the Justice Department from carrying

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<v Speaker 1>out the death penalty. Joining me is Jordan Reuben Bloomberg

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<v Speaker 1>Law Editor Jordan. This was a split decision two to one.

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<v Speaker 1>The two Trump appointees versus a Clinton appointee tell us

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<v Speaker 1>about it. So last summer, Attorney General William Barr announced

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<v Speaker 1>that the federal government was going to resume federal executions,

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<v Speaker 1>and with it unveiled a new protocol for doing so.

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<v Speaker 1>The problem with that, according to litigation brought by several

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<v Speaker 1>federal prisoners, is that this protocol runs a foul of

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<v Speaker 1>multiple laws, according to them, including something called the Federal

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<v Speaker 1>Death Penalty Act, which puts pretty stringent requirements according to

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<v Speaker 1>them anyway, on how the government is allowed to carry

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<v Speaker 1>out executions. And so what we've seen in this latest

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<v Speaker 1>decision is the latest ruling on this very complex litigation

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<v Speaker 1>about capital punishment. So the Federal Death Penalty Act says,

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<v Speaker 1>the manner in which the death sentence is imposed is

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<v Speaker 1>prescribed by the law of the state where it's being

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<v Speaker 1>carried out. Explain why that seems to be a critical problem, right,

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<v Speaker 1>So the arguments really are being fought on this sort

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<v Speaker 1>of hyper technical ground that almost all comes down to

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<v Speaker 1>what the word manner means. The debate, or at least

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<v Speaker 1>a big part of it anyway, is whether manner means just,

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<v Speaker 1>let's say, the type of execution, say, whether it's lethal

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<v Speaker 1>injection versus e execution, or whether it's really getting much

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<v Speaker 1>more into the minutia of that, say, when it comes

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<v Speaker 1>to lethal injection, whether it means really how that specific

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<v Speaker 1>lethal injection is being in minister. So the prisoners, of

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<v Speaker 1>course are arguing for the latter interpretation, and the Trump

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<v Speaker 1>administration is arguing for the former, and there are many

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<v Speaker 1>arguments about that. And even in this latest decision, even

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<v Speaker 1>though this was a two to one decision with the

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<v Speaker 1>two Trump appointees in the majority, even within them they

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<v Speaker 1>didn't totally agree on the analysis of why it is

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<v Speaker 1>that the prisoners should lose So will the prisoners here

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<v Speaker 1>ask for an on bank review by the full DC

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<v Speaker 1>Circuit and is there a good chance of getting that

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<v Speaker 1>since the two judges in the majority here had differing reasons. Well,

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<v Speaker 1>taking the first part of that question, I think that

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<v Speaker 1>there is a good chance that the plaintiff prisoners will

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<v Speaker 1>seek further review in front of the full on Bank

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<v Speaker 1>DC Circuit. That's at least according to a statement from

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<v Speaker 1>their lawyer following the ruling that at least hinted at that.

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<v Speaker 1>Now the opinion itself said that the case should be

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<v Speaker 1>sent back to the trial court, where there are even

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<v Speaker 1>more issues than just this federal Death Penalty Act. So

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<v Speaker 1>there are multiple directions in which the case could go,

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<v Speaker 1>whether it's going further back down to the trial courts,

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<v Speaker 1>so to speak, or further back up to the full

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<v Speaker 1>on Bok DC Circuit, and then potentially even to the

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<v Speaker 1>Supreme Court, where this case actually was back in December

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<v Speaker 1>until it went back down to the d C Circuit

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<v Speaker 1>against We're seeing a lot of up and down with

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<v Speaker 1>this very complex litigation. Tell us what happened at the

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<v Speaker 1>Supreme Court and whether there were any hints from any

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<v Speaker 1>of the justices about how they might finally rule in

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<v Speaker 1>a case like this, right, So, taking us all the

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<v Speaker 1>way back to December, if we can remember that time,

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<v Speaker 1>that's when the federal government wanted to jump start these executions,

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<v Speaker 1>so to speak. And so after the federal trial judge

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<v Speaker 1>and Washington in November preliminarily enjoined the government from carrying

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<v Speaker 1>out these executions, the government then saw it on a

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<v Speaker 1>very expedited basis to try and get that ruling overturned.

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<v Speaker 1>And so that took them all the way up to

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<v Speaker 1>the Supreme Court, where in December the Supreme Court did

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<v Speaker 1>not rule in the government's favor. However, three justices of

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<v Speaker 1>Samuel Ledo, Neil Gorsuch, and Brett Kavanaugh said in a

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<v Speaker 1>statement at the time essentially that the government should win

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<v Speaker 1>and if the case comes back to them on the

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<v Speaker 1>merits of the dispute, then at least those three justices

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<v Speaker 1>are likely to rule for the government. And how has

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<v Speaker 1>the Supreme Court ruled on death penalty cases in general? Well,

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<v Speaker 1>the death penalty being a controversial issue not just at

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<v Speaker 1>the Supreme Court but everywhere, of course, is nothing new. However,

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<v Speaker 1>at the Supreme Court in very recent years we have

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<v Speaker 1>seen very very contentious disputes among the justices with them

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<v Speaker 1>breaking along these sort of typical five for ideological wines.

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<v Speaker 1>And there's good reason to think that if this case

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<v Speaker 1>does wind up ultimately getting resolved at the Supreme Court,

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<v Speaker 1>that we will see a break along those lines. Although

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<v Speaker 1>we will just have to see how this one please

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<v Speaker 1>out there. This doesn't mean that the Justice Department can

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<v Speaker 1>start executions. What has to happen next, right, So I

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<v Speaker 1>think partly what happens next will be guided by whether,

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<v Speaker 1>as we discussed, the plaintifts do seek a full on

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<v Speaker 1>bank review from the d C Circuit, and then, in turn,

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<v Speaker 1>if they do what the full DC Circuit says, and

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<v Speaker 1>then potentially even what the Supreme Court says, alternatively, whether

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<v Speaker 1>they want to continue to fight the case back down

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<v Speaker 1>at the trial court level. So in terms of the

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<v Speaker 1>next step, that will at least partly depend on what

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<v Speaker 1>the prisoners who just lost want to try to do

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<v Speaker 1>in terms of this litigation. So that's what we're waiting

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<v Speaker 1>to see next. Thanks, Jordan's that's Jordan Ruben Bloomberg, Law Editor.

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<v Speaker 1>President Trump is nominating a Kentucky judge once rejected by

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<v Speaker 1>the American Bar Association to the second highest court in

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<v Speaker 1>the land. Joining me is Carl Tobias, a professor at

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<v Speaker 1>the University of Richmond Law School. Carl tell us about

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<v Speaker 1>Justin Tucker, who hasn't been a district court judge for

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<v Speaker 1>all that long. That's right. He's been serving for several

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<v Speaker 1>months on the Western District of Kentucky since his confirmation.

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<v Speaker 1>He's very young, and he received a not qualified rating

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<v Speaker 1>from the American Bar Association principally because he hadn't practiced

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<v Speaker 1>long enough to satisfy the A B A. The letter

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<v Speaker 1>from the A B A also said, I think that

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<v Speaker 1>he didn't have sufficient practice experience to be a federal

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<v Speaker 1>district court judge, but it did suggest that he was

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<v Speaker 1>quite qualified in certain ways and certainly has very strong

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<v Speaker 1>academic credentials. And he clerked on this very court for

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<v Speaker 1>Judge Kavanaugh, who now is on the Supreme Court, and

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<v Speaker 1>then went on to clerk for Justice Kennedy on the

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<v Speaker 1>Supreme Court. And the A B A said that that

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<v Speaker 1>kind of qualification might be better suited to the appellate bench.

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<v Speaker 1>So we'll have to see what happens with the A

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<v Speaker 1>B A when it undertakes its evaluation. The A B

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<v Speaker 1>A ratings don't seem to be making much of a

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<v Speaker 1>difference when it comes to voting on these nominees. I

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<v Speaker 1>think that's very true. There have been nine Trump nominees

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<v Speaker 1>who were rated not qualified but the A B A,

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<v Speaker 1>and seven of them have been confirmed, three for the

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<v Speaker 1>appeals courts. So that gives you a sense of what

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<v Speaker 1>the Republican majority thinks about the A B A. Republicans

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<v Speaker 1>have been quite critical of the A B A. The

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<v Speaker 1>White House really doesn't use the evaluations or ratings in

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<v Speaker 1>any meaningful way. By contrast, President Obama nominated no one

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<v Speaker 1>who received an A B A not qualified eating just

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<v Speaker 1>because I think he believed that that was a sign

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<v Speaker 1>that there was some question about the qualifications, and so

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<v Speaker 1>he just didn't think it was worth it to go

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<v Speaker 1>forward with nominees who received that rating. Why not nominate

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<v Speaker 1>a judge who has more experience, who's more seasoned. I

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<v Speaker 1>know that he has Federalist society connections, and he forcefully

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<v Speaker 1>defended Justice Brett Kavanaugh for the Supreme Court nomination. Well,

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<v Speaker 1>he is a protege of the majority leader McConnell, and

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<v Speaker 1>they go back a long way, and he even did

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<v Speaker 1>I think a high school paper on McConnell's leadership in

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<v Speaker 1>the Senate, and McConnell recommended him strongly for the district bench,

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<v Speaker 1>and he was confirmed on a fifty vote. Uh. And

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<v Speaker 1>there were questions that Democrats raised about his qualifications, But

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<v Speaker 1>you're correct. Usually for the second most important court in

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<v Speaker 1>the country, the nominees do tend to be very seasoned,

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<v Speaker 1>and they come from all over the country, and he

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<v Speaker 1>fits that part of the model. But I believe no

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<v Speaker 1>one who is as young as he is has been

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<v Speaker 1>nominated for that court since the nineteen eighties. He would

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<v Speaker 1>be filling the spot that retiring Judge Griffith is leaving.

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<v Speaker 1>Isn't there controversy over his leaving that spot? Yes, there's

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<v Speaker 1>some controversy because a number of news outlets, including New

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<v Speaker 1>York Times, have questioned McConnell's approaching Republican appointees on the

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<v Speaker 1>federal bench and suggesting that they assume senior status now

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<v Speaker 1>so that President Trump can fill the vacancies, and suggesting

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<v Speaker 1>they might have to wait another eight years if President

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<v Speaker 1>Ump isn't reelected, and questions have been raised about that.

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<v Speaker 1>In fact, Demand Justice did submit a letter to the

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<v Speaker 1>Chief Judge of the d c Circuit asking for an investigation.

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<v Speaker 1>So does this nomination mean that that investigation is going nowhere?

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<v Speaker 1>Not necessarily. I mean, I think there is great discretion

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<v Speaker 1>in the Chief Judge of the Circuit to respond to

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<v Speaker 1>that allegation or the questions asked in the letter from

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<v Speaker 1>Demand Justice, and we'll see what the Chief Judge does.

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<v Speaker 1>And the allegations go to the question of whether something

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<v Speaker 1>might have been suggested to Judge Griffith, though I don't

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<v Speaker 1>think that Judge Griffith is in any way implicated. I

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<v Speaker 1>think it's mostly Leader McConnell and questions about the propriety

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<v Speaker 1>of his approaching judges like Judge Griffith and making the

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<v Speaker 1>suggestion that they retire or soon senior status. This follows

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<v Speaker 1>the nomination of Judge Corey Wilson to the Fifth Circuit.

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<v Speaker 1>His position on Obamacare is part of the Democrats and

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<v Speaker 1>healthcare groups resistance to him, and the same might be

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<v Speaker 1>said for Walker, since he called Obamacare the law indefensible.

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<v Speaker 1>The Democrats and many are concerned about the pandemic that's raging,

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<v Speaker 1>and so that's top of mind for members of the Senate,

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<v Speaker 1>and I expect they could well question the nominee when

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<v Speaker 1>his hearing occurs. Thanks Carl. That's Carl Tobias of a

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<v Speaker 1>University of Richmond Law School. Thanks for listening to the

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<v Speaker 1>Bloomberg Law Podcast. You can subscribe and listen to the

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<v Speaker 1>show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

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<v Speaker 1>slash podcast. I'm June Rosso. This is Bloomberg. M HM.