Speaker 1: This is Bloomberg Law with June Grasso. After a decade
Speaker 1: long hiatus, President Trump wants to resume federal executions, and
Speaker 1: two of his judicial appointees have brought him a step
Speaker 1: closer to that goal. Trump appointees Gregory Katsis and Naomi
Speaker 1: Rao on the d C. Circuit Court of Appeals upended
Speaker 1: an injunction that had stopped the Justice Department from carrying
Speaker 1: out the death penalty. Joining me is Jordan Reuben Bloomberg
Speaker 1: Law Editor Jordan. This was a split decision two to one.
Speaker 1: The two Trump appointees versus a Clinton appointee tell us
Speaker 1: about it. So last summer, Attorney General William Barr announced
Speaker 1: that the federal government was going to resume federal executions,
Speaker 1: and with it unveiled a new protocol for doing so.
Speaker 1: The problem with that, according to litigation brought by several
Speaker 1: federal prisoners, is that this protocol runs a foul of
Speaker 1: multiple laws, according to them, including something called the Federal
Speaker 1: Death Penalty Act, which puts pretty stringent requirements according to
Speaker 1: them anyway, on how the government is allowed to carry
Speaker 1: out executions. And so what we've seen in this latest
Speaker 1: decision is the latest ruling on this very complex litigation
Speaker 1: about capital punishment. So the Federal Death Penalty Act says,
Speaker 1: the manner in which the death sentence is imposed is
Speaker 1: prescribed by the law of the state where it's being
Speaker 1: carried out. Explain why that seems to be a critical problem, right,
Speaker 1: So the arguments really are being fought on this sort
Speaker 1: of hyper technical ground that almost all comes down to
Speaker 1: what the word manner means. The debate, or at least
Speaker 1: a big part of it anyway, is whether manner means just,
Speaker 1: let's say, the type of execution, say, whether it's lethal
Speaker 1: injection versus e execution, or whether it's really getting much
Speaker 1: more into the minutia of that, say, when it comes
Speaker 1: to lethal injection, whether it means really how that specific
Speaker 1: lethal injection is being in minister. So the prisoners, of
Speaker 1: course are arguing for the latter interpretation, and the Trump
Speaker 1: administration is arguing for the former, and there are many
Speaker 1: arguments about that. And even in this latest decision, even
Speaker 1: though this was a two to one decision with the
Speaker 1: two Trump appointees in the majority, even within them they
Speaker 1: didn't totally agree on the analysis of why it is
Speaker 1: that the prisoners should lose So will the prisoners here
Speaker 1: ask for an on bank review by the full DC
Speaker 1: Circuit and is there a good chance of getting that
Speaker 1: since the two judges in the majority here had differing reasons. Well,
Speaker 1: taking the first part of that question, I think that
Speaker 1: there is a good chance that the plaintiff prisoners will
Speaker 1: seek further review in front of the full on Bank
Speaker 1: DC Circuit. That's at least according to a statement from
Speaker 1: their lawyer following the ruling that at least hinted at that.
Speaker 1: Now the opinion itself said that the case should be
Speaker 1: sent back to the trial court, where there are even
Speaker 1: more issues than just this federal Death Penalty Act. So
Speaker 1: there are multiple directions in which the case could go,
Speaker 1: whether it's going further back down to the trial courts,
Speaker 1: so to speak, or further back up to the full
Speaker 1: on Bok DC Circuit, and then potentially even to the
Speaker 1: Supreme Court, where this case actually was back in December
Speaker 1: until it went back down to the d C Circuit
Speaker 1: against We're seeing a lot of up and down with
Speaker 1: this very complex litigation. Tell us what happened at the
Speaker 1: Supreme Court and whether there were any hints from any
Speaker 1: of the justices about how they might finally rule in
Speaker 1: a case like this, right, So, taking us all the
Speaker 1: way back to December, if we can remember that time,
Speaker 1: that's when the federal government wanted to jump start these executions,
Speaker 1: so to speak. And so after the federal trial judge
Speaker 1: and Washington in November preliminarily enjoined the government from carrying
Speaker 1: out these executions, the government then saw it on a
Speaker 1: very expedited basis to try and get that ruling overturned.
Speaker 1: And so that took them all the way up to
Speaker 1: the Supreme Court, where in December the Supreme Court did
Speaker 1: not rule in the government's favor. However, three justices of
Speaker 1: Samuel Ledo, Neil Gorsuch, and Brett Kavanaugh said in a
Speaker 1: statement at the time essentially that the government should win
Speaker 1: and if the case comes back to them on the
Speaker 1: merits of the dispute, then at least those three justices
Speaker 1: are likely to rule for the government. And how has
Speaker 1: the Supreme Court ruled on death penalty cases in general? Well,
Speaker 1: the death penalty being a controversial issue not just at
Speaker 1: the Supreme Court but everywhere, of course, is nothing new. However,
Speaker 1: at the Supreme Court in very recent years we have
Speaker 1: seen very very contentious disputes among the justices with them
Speaker 1: breaking along these sort of typical five for ideological wines.
Speaker 1: And there's good reason to think that if this case
Speaker 1: does wind up ultimately getting resolved at the Supreme Court,
Speaker 1: that we will see a break along those lines. Although
Speaker 1: we will just have to see how this one please
Speaker 1: out there. This doesn't mean that the Justice Department can
Speaker 1: start executions. What has to happen next, right, So I
Speaker 1: think partly what happens next will be guided by whether,
Speaker 1: as we discussed, the plaintifts do seek a full on
Speaker 1: bank review from the d C Circuit, and then, in turn,
Speaker 1: if they do what the full DC Circuit says, and
Speaker 1: then potentially even what the Supreme Court says, alternatively, whether
Speaker 1: they want to continue to fight the case back down
Speaker 1: at the trial court level. So in terms of the
Speaker 1: next step, that will at least partly depend on what
Speaker 1: the prisoners who just lost want to try to do
Speaker 1: in terms of this litigation. So that's what we're waiting
Speaker 1: to see next. Thanks, Jordan's that's Jordan Ruben Bloomberg, Law Editor.
Speaker 1: President Trump is nominating a Kentucky judge once rejected by
Speaker 1: the American Bar Association to the second highest court in
Speaker 1: the land. Joining me is Carl Tobias, a professor at
Speaker 1: the University of Richmond Law School. Carl tell us about
Speaker 1: Justin Tucker, who hasn't been a district court judge for
Speaker 1: all that long. That's right. He's been serving for several
Speaker 1: months on the Western District of Kentucky since his confirmation.
Speaker 1: He's very young, and he received a not qualified rating
Speaker 1: from the American Bar Association principally because he hadn't practiced
Speaker 1: long enough to satisfy the A B A. The letter
Speaker 1: from the A B A also said, I think that
Speaker 1: he didn't have sufficient practice experience to be a federal
Speaker 1: district court judge, but it did suggest that he was
Speaker 1: quite qualified in certain ways and certainly has very strong
Speaker 1: academic credentials. And he clerked on this very court for
Speaker 1: Judge Kavanaugh, who now is on the Supreme Court, and
Speaker 1: then went on to clerk for Justice Kennedy on the
Speaker 1: Supreme Court. And the A B A said that that
Speaker 1: kind of qualification might be better suited to the appellate bench.
Speaker 1: So we'll have to see what happens with the A
Speaker 1: B A when it undertakes its evaluation. The A B
Speaker 1: A ratings don't seem to be making much of a
Speaker 1: difference when it comes to voting on these nominees. I
Speaker 1: think that's very true. There have been nine Trump nominees
Speaker 1: who were rated not qualified but the A B A,
Speaker 1: and seven of them have been confirmed, three for the
Speaker 1: appeals courts. So that gives you a sense of what
Speaker 1: the Republican majority thinks about the A B A. Republicans
Speaker 1: have been quite critical of the A B A. The
Speaker 1: White House really doesn't use the evaluations or ratings in
Speaker 1: any meaningful way. By contrast, President Obama nominated no one
Speaker 1: who received an A B A not qualified eating just
Speaker 1: because I think he believed that that was a sign
Speaker 1: that there was some question about the qualifications, and so
Speaker 1: he just didn't think it was worth it to go
Speaker 1: forward with nominees who received that rating. Why not nominate
Speaker 1: a judge who has more experience, who's more seasoned. I
Speaker 1: know that he has Federalist society connections, and he forcefully
Speaker 1: defended Justice Brett Kavanaugh for the Supreme Court nomination. Well,
Speaker 1: he is a protege of the majority leader McConnell, and
Speaker 1: they go back a long way, and he even did
Speaker 1: I think a high school paper on McConnell's leadership in
Speaker 1: the Senate, and McConnell recommended him strongly for the district bench,
Speaker 1: and he was confirmed on a fifty vote. Uh. And
Speaker 1: there were questions that Democrats raised about his qualifications, But
Speaker 1: you're correct. Usually for the second most important court in
Speaker 1: the country, the nominees do tend to be very seasoned,
Speaker 1: and they come from all over the country, and he
Speaker 1: fits that part of the model. But I believe no
Speaker 1: one who is as young as he is has been
Speaker 1: nominated for that court since the nineteen eighties. He would
Speaker 1: be filling the spot that retiring Judge Griffith is leaving.
Speaker 1: Isn't there controversy over his leaving that spot? Yes, there's
Speaker 1: some controversy because a number of news outlets, including New
Speaker 1: York Times, have questioned McConnell's approaching Republican appointees on the
Speaker 1: federal bench and suggesting that they assume senior status now
Speaker 1: so that President Trump can fill the vacancies, and suggesting
Speaker 1: they might have to wait another eight years if President
Speaker 1: Ump isn't reelected, and questions have been raised about that.
Speaker 1: In fact, Demand Justice did submit a letter to the
Speaker 1: Chief Judge of the d c Circuit asking for an investigation.
Speaker 1: So does this nomination mean that that investigation is going nowhere?
Speaker 1: Not necessarily. I mean, I think there is great discretion
Speaker 1: in the Chief Judge of the Circuit to respond to
Speaker 1: that allegation or the questions asked in the letter from
Speaker 1: Demand Justice, and we'll see what the Chief Judge does.
Speaker 1: And the allegations go to the question of whether something
Speaker 1: might have been suggested to Judge Griffith, though I don't
Speaker 1: think that Judge Griffith is in any way implicated. I
Speaker 1: think it's mostly Leader McConnell and questions about the propriety
Speaker 1: of his approaching judges like Judge Griffith and making the
Speaker 1: suggestion that they retire or soon senior status. This follows
Speaker 1: the nomination of Judge Corey Wilson to the Fifth Circuit.
Speaker 1: His position on Obamacare is part of the Democrats and
Speaker 1: healthcare groups resistance to him, and the same might be
Speaker 1: said for Walker, since he called Obamacare the law indefensible.
Speaker 1: The Democrats and many are concerned about the pandemic that's raging,
Speaker 1: and so that's top of mind for members of the Senate,
Speaker 1: and I expect they could well question the nominee when
Speaker 1: his hearing occurs. Thanks Carl. That's Carl Tobias of a
Speaker 1: University of Richmond Law School. Thanks for listening to the
Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the
Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com
Speaker 1: slash podcast. I'm June Rosso. This is Bloomberg. M HM.