1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,640 --> 00:00:12,200 Speaker 2: James Boseburg, the chief Judge of the US District Court 3 00:00:12,280 --> 00:00:15,040 Speaker 2: for the District of Columbia, has been at the center 4 00:00:15,080 --> 00:00:17,640 Speaker 2: of the Trump administration's. 5 00:00:16,800 --> 00:00:19,079 Speaker 3: Efforts to deport accused. 6 00:00:18,600 --> 00:00:23,560 Speaker 2: Venezuelan gang members under an eighteenth century wartime law, the 7 00:00:23,600 --> 00:00:26,720 Speaker 2: Alien Enemies Act. He's also been at the center of 8 00:00:26,720 --> 00:00:31,480 Speaker 2: the administration's attacks on the federal judiciary. Attorney General Pam 9 00:00:31,520 --> 00:00:34,560 Speaker 2: Bondi has repeatedly criticized Boseburg. 10 00:00:35,159 --> 00:00:38,800 Speaker 4: This judge has no right to ask those questions. You 11 00:00:38,880 --> 00:00:44,400 Speaker 4: have one unelected federal judge trying to control foreign policies, 12 00:00:44,680 --> 00:00:48,000 Speaker 4: trying to control the Alien Enemies Act, which they have 13 00:00:48,320 --> 00:00:53,199 Speaker 4: no business presiding over. This judge had no right to 14 00:00:53,280 --> 00:00:57,120 Speaker 4: do that. They're meddling in foreign affairs, They're meddling in 15 00:00:57,240 --> 00:01:00,280 Speaker 4: our government. And the question should be why is a 16 00:01:00,320 --> 00:01:04,040 Speaker 4: judge trying to protect terrorists who have invaded our country 17 00:01:04,480 --> 00:01:09,280 Speaker 4: over American citizens, And then, of course Boseburg trying to 18 00:01:09,319 --> 00:01:13,040 Speaker 4: control our foreign policy. These judges are out of control. 19 00:01:13,360 --> 00:01:16,240 Speaker 4: We are going to fight back, and we are going 20 00:01:16,280 --> 00:01:16,680 Speaker 4: to win. 21 00:01:17,120 --> 00:01:21,240 Speaker 2: President Trump has called Boseberg a radical left lunatic of 22 00:01:21,280 --> 00:01:25,440 Speaker 2: a judge, a troublemaker and agitator, even calling for his 23 00:01:25,520 --> 00:01:29,120 Speaker 2: impeachment that led to a rear rebuke from Chief Justice 24 00:01:29,200 --> 00:01:33,400 Speaker 2: John Roberts in March. Now the Justice Department is escalating 25 00:01:33,480 --> 00:01:38,200 Speaker 2: its fight with Boseburg. It's filed an ethics complaint accusing 26 00:01:38,240 --> 00:01:42,200 Speaker 2: the judge of misconduct. My guest is constitutional law expert 27 00:01:42,280 --> 00:01:46,240 Speaker 2: David super, a professor at Georgetown Law. David, why has 28 00:01:46,280 --> 00:01:49,800 Speaker 2: the administration been focusing so much on Judge Boseburg? 29 00:01:50,440 --> 00:01:54,960 Speaker 5: Well cass are assigned to district judges randomly. Judge Boseberg 30 00:01:55,440 --> 00:02:00,520 Speaker 5: have the misfortune of drawing the first case in involving 31 00:02:00,720 --> 00:02:05,320 Speaker 5: the Trump administration's bizarre application of the Alien Enemies Act 32 00:02:05,720 --> 00:02:09,520 Speaker 5: in a non wartime situation, and he did what any 33 00:02:09,600 --> 00:02:12,799 Speaker 5: component judge would do, which is declared illegal. 34 00:02:13,360 --> 00:02:17,560 Speaker 2: The complaint focuses on a March session of the Judicial 35 00:02:17,600 --> 00:02:21,359 Speaker 2: Conference of the United States, a panel of judges led 36 00:02:21,400 --> 00:02:25,880 Speaker 2: by Chief Justice John Roberts. The Justice Department accused Boseburg 37 00:02:26,000 --> 00:02:30,840 Speaker 2: of raising quote concerns that the administration would disregard rulings 38 00:02:30,880 --> 00:02:35,280 Speaker 2: of federal courts, leading to a constitutional crisis, and said 39 00:02:35,320 --> 00:02:38,320 Speaker 2: his comments violated a section of the Code of Conduct 40 00:02:38,320 --> 00:02:41,639 Speaker 2: for federal judges, which says that they should not make 41 00:02:41,720 --> 00:02:45,200 Speaker 2: any public comment on the merits of a matter pending 42 00:02:45,400 --> 00:02:48,800 Speaker 2: or impending in any court. If he did, in fact 43 00:02:48,840 --> 00:02:52,280 Speaker 2: say this, is it at a bounds for a judge 44 00:02:52,400 --> 00:02:55,520 Speaker 2: at a meeting that's supposed to be private to say 45 00:02:55,560 --> 00:02:56,320 Speaker 2: something like that. 46 00:02:57,000 --> 00:03:00,520 Speaker 5: No, of course not. This complaint doesn't pass the last test. 47 00:03:00,960 --> 00:03:03,600 Speaker 5: It's not a public statement if the statement was only 48 00:03:03,720 --> 00:03:06,359 Speaker 5: judges present. I would love to attend meetings to the 49 00:03:06,440 --> 00:03:09,519 Speaker 5: Judicial Conference, but I'm never invited. I'm sure you would too. 50 00:03:09,760 --> 00:03:13,040 Speaker 5: It's a private meeting. By this reasoning someone should bring 51 00:03:13,080 --> 00:03:18,320 Speaker 5: a complaint against Justice Alito or indicating that he thought 52 00:03:18,639 --> 00:03:22,359 Speaker 5: Rovy Wade should be overruled in circulating his draft opinion 53 00:03:22,400 --> 00:03:25,800 Speaker 5: in Bobbs, which later became public, Judge Boseburg is not 54 00:03:25,880 --> 00:03:30,200 Speaker 5: responsible for other people leaking memos about things he said 55 00:03:30,240 --> 00:03:33,880 Speaker 5: in private meetings among judges any more than Justice Alito 56 00:03:34,320 --> 00:03:37,920 Speaker 5: would be responsible for the leak of his draft opinion 57 00:03:37,960 --> 00:03:39,720 Speaker 5: that he shared with other justices. 58 00:03:39,920 --> 00:03:43,240 Speaker 2: In the complaint, the Justice Department also says that Judge 59 00:03:43,240 --> 00:03:46,760 Speaker 2: Boseburg had no basis for saying that because the Trump 60 00:03:46,840 --> 00:03:51,279 Speaker 2: administration has always complied with court orders, but the administration 61 00:03:51,520 --> 00:03:54,520 Speaker 2: violated Boseberg's verbal order in this very case. 62 00:03:55,320 --> 00:04:00,000 Speaker 5: Judge Bozberg's role on the judicial conferences as a representative 63 00:04:00,000 --> 00:04:03,240 Speaker 5: fative of district judges in the District of Columbia, he 64 00:04:03,440 --> 00:04:08,440 Speaker 5: is responsible for reporting what judges on his court are 65 00:04:08,560 --> 00:04:12,120 Speaker 5: concerned about, and it would be at their election of 66 00:04:12,160 --> 00:04:15,400 Speaker 5: his duty if he didn't report concerns that they had. 67 00:04:16,200 --> 00:04:20,560 Speaker 5: Judges on his court had found the administration to be 68 00:04:20,640 --> 00:04:24,400 Speaker 5: out of compliance with a number of court orders by 69 00:04:24,560 --> 00:04:29,960 Speaker 5: administration officials, certainly including the Vice President, arguably including the President, 70 00:04:30,480 --> 00:04:35,360 Speaker 5: had mused about whether they would honor court orders on 71 00:04:35,480 --> 00:04:40,679 Speaker 5: various topics, even Supreme Court orders, certainly orders of district courts, 72 00:04:41,400 --> 00:04:45,000 Speaker 5: and the question of how to deal with the administration 73 00:04:45,240 --> 00:04:49,039 Speaker 5: violating court orders had already been up and down to 74 00:04:49,120 --> 00:04:52,640 Speaker 5: the Supreme Court by that point. Obviously it was something 75 00:04:52,680 --> 00:04:57,160 Speaker 5: they were concerned about. He was not, as we've been told, 76 00:04:57,440 --> 00:05:01,160 Speaker 5: expressing his own views, but rather the views of other 77 00:05:01,320 --> 00:05:04,680 Speaker 5: judges on his bench. I'm sure at other times the 78 00:05:04,800 --> 00:05:08,440 Speaker 5: chief Judge of the District of Columbia may have reported 79 00:05:08,480 --> 00:05:11,800 Speaker 5: that they feel inundated with bent in all cases where 80 00:05:11,880 --> 00:05:16,240 Speaker 5: they feel inundated with crystal meth cases. This is a 81 00:05:16,240 --> 00:05:20,800 Speaker 5: place where judges talk about the challenges of maintaining the judiciary. 82 00:05:21,160 --> 00:05:23,320 Speaker 5: He was doing exactly what he was supposed to be doing. 83 00:05:23,680 --> 00:05:27,440 Speaker 2: Is it concerning that apparently a memo of the meeting 84 00:05:27,880 --> 00:05:31,520 Speaker 2: was leaked to the conservative website the Federalist. 85 00:05:32,080 --> 00:05:37,160 Speaker 5: Well, the Judicial Conference is representing judges and business about it, 86 00:05:37,200 --> 00:05:41,080 Speaker 5: so memos of what happened at this meeting do get 87 00:05:41,080 --> 00:05:45,440 Speaker 5: circulated to judges. President Trump has made a point of 88 00:05:45,480 --> 00:05:49,720 Speaker 5: appointing members of the Federalist Society to the Judiciary, so 89 00:05:49,960 --> 00:05:53,839 Speaker 5: many Federalist Society members received this memo and one of 90 00:05:53,839 --> 00:05:56,600 Speaker 5: them apparently chose to leak it to the Federalist. 91 00:05:57,279 --> 00:06:01,159 Speaker 2: It's also in isolation. They just took about his comment. 92 00:06:01,880 --> 00:06:04,599 Speaker 2: There must have been some kind of discussion that followed that, 93 00:06:04,839 --> 00:06:09,159 Speaker 2: or some remarks and response, but it's just isolated to 94 00:06:09,200 --> 00:06:12,400 Speaker 2: this one comment that he made, which is unusual. 95 00:06:12,920 --> 00:06:16,960 Speaker 5: Well, it is, and they describe his comments as being 96 00:06:17,160 --> 00:06:21,880 Speaker 5: uncalled for, but they don't give us any context to suggest. 97 00:06:21,520 --> 00:06:22,159 Speaker 1: That they weren't. 98 00:06:22,200 --> 00:06:25,880 Speaker 5: And again, Judge Bosberg's role there was to bring to 99 00:06:26,000 --> 00:06:31,200 Speaker 5: the Judicial Conference concerns by judges on his court and 100 00:06:31,600 --> 00:06:37,920 Speaker 5: judges reacting negatively to administration officials and Republican senators suggesting 101 00:06:38,400 --> 00:06:41,800 Speaker 5: that they disregard court orders would be an obvious thing 102 00:06:41,880 --> 00:06:46,320 Speaker 5: to discuss. He doesn't indicate what the point of the 103 00:06:46,320 --> 00:06:52,760 Speaker 5: agenda was, what prompted this, or what anyone else said afterwards. Moreover, 104 00:06:53,279 --> 00:06:57,080 Speaker 5: the Code of Judicial Conduct prohibits comments on the merits 105 00:06:57,120 --> 00:06:59,720 Speaker 5: of the case. This is not a merit issue. This 106 00:06:59,880 --> 00:07:02,920 Speaker 5: is an issue about what does the court do when 107 00:07:02,960 --> 00:07:06,000 Speaker 5: it has decided the merits and one of the parties 108 00:07:06,200 --> 00:07:07,000 Speaker 5: doesn't comply. 109 00:07:07,440 --> 00:07:11,520 Speaker 2: The Justice Department also complains about his handling of the 110 00:07:11,600 --> 00:07:16,360 Speaker 2: case involving the alleged Venezuelan gang members, saying he rushed 111 00:07:16,360 --> 00:07:21,000 Speaker 2: the government through complex litigation, sometimes giving the Trump administration 112 00:07:21,440 --> 00:07:23,640 Speaker 2: less than forty eight hours to respond. 113 00:07:24,160 --> 00:07:28,640 Speaker 5: Well, the rushing was by the administration. The administration could 114 00:07:28,680 --> 00:07:34,280 Speaker 5: have agreed to suspend flights until this matter was litigated, 115 00:07:34,280 --> 00:07:37,119 Speaker 5: and the parties could have submitted their papers in due time. 116 00:07:37,440 --> 00:07:42,280 Speaker 5: The administration was in physical control of all of these people. 117 00:07:42,320 --> 00:07:45,560 Speaker 5: It had no need to send them to Alfalvadore. It 118 00:07:45,680 --> 00:07:48,320 Speaker 5: chose to do it in a great hurry, and that 119 00:07:48,480 --> 00:07:53,120 Speaker 5: led to a quick response from Judge Bosebury, many judges 120 00:07:53,160 --> 00:07:56,520 Speaker 5: would not have given the administration any operatity to respond 121 00:07:56,720 --> 00:08:00,720 Speaker 5: at all when enjoining a crisis that was entirely of 122 00:08:00,840 --> 00:08:04,760 Speaker 5: that party's making. Judge Boseburg bend over backwards to be 123 00:08:04,880 --> 00:08:10,480 Speaker 5: considerate of the administration and to accommodate the schedule, which 124 00:08:10,560 --> 00:08:14,880 Speaker 5: they insisted was very urgent, even though they never explained why. 125 00:08:15,520 --> 00:08:18,560 Speaker 2: If you have a problem with the judge handling your case, 126 00:08:19,200 --> 00:08:23,120 Speaker 2: does a litigan file a misconduct complaint or wait for 127 00:08:23,160 --> 00:08:23,720 Speaker 2: the appeal. 128 00:08:24,480 --> 00:08:28,320 Speaker 5: If what the judge does is sufficiently egregious, you can 129 00:08:28,480 --> 00:08:32,880 Speaker 5: file a misconduct complaint. It's not out now then appropriate. 130 00:08:33,000 --> 00:08:36,560 Speaker 5: But what Judge boseverg here did doesn't mean any of 131 00:08:36,600 --> 00:08:41,160 Speaker 5: the requirements of an improper act. It wasn't public, it 132 00:08:41,320 --> 00:08:46,319 Speaker 5: wasn't on the merits, and wasn't prejudicial. So the normal 133 00:08:46,360 --> 00:08:50,319 Speaker 5: procedure would be either to appeal or in some instances, 134 00:08:50,360 --> 00:08:53,360 Speaker 5: to move for the judge to be recused. But the 135 00:08:53,400 --> 00:08:57,800 Speaker 5: standard even for recusal and for appeal is much much 136 00:08:57,840 --> 00:09:02,199 Speaker 5: higher than this, and the standard judicial misconduct is higher still. 137 00:09:02,760 --> 00:09:05,280 Speaker 2: You said doesn't pass the left test. What do you 138 00:09:05,320 --> 00:09:06,520 Speaker 2: expect to happen here? 139 00:09:07,240 --> 00:09:10,559 Speaker 5: In a normal world? The Chief judge of the DC 140 00:09:10,760 --> 00:09:15,199 Speaker 5: Circuit would dismiss this outright, because this comes from the 141 00:09:15,320 --> 00:09:21,960 Speaker 5: Justice Department and from an administration that has been exceedingly 142 00:09:22,080 --> 00:09:26,319 Speaker 5: vindictive and is cost lines that none of its predecessors 143 00:09:26,400 --> 00:09:31,120 Speaker 5: have in criticizing sitting judges. The chief Judge may refer 144 00:09:31,160 --> 00:09:33,959 Speaker 5: it to a panel, but those judges would then dismiss it. 145 00:09:34,200 --> 00:09:35,559 Speaker 3: We've talked before about this. 146 00:09:35,559 --> 00:09:39,000 Speaker 2: This is the latest in a string of confrontations of 147 00:09:39,080 --> 00:09:42,480 Speaker 2: the Trump administration with the federal courts. They filed a 148 00:09:42,559 --> 00:09:47,640 Speaker 2: misconduct complaint in Fbruary against another DC federal judge, Anna Reyes, 149 00:09:48,000 --> 00:09:51,520 Speaker 2: accusing her of hostile and egregious misconduct for her sharp 150 00:09:51,640 --> 00:09:55,160 Speaker 2: questioning of government lawyers in the case on the Pentagon's 151 00:09:55,160 --> 00:09:59,440 Speaker 2: attempts to ban transgender people from military service. And last 152 00:09:59,480 --> 00:10:02,440 Speaker 2: month they suit every judge in Maryland over a standing 153 00:10:02,679 --> 00:10:06,839 Speaker 2: order that blocked the immediate deportation of migrants, challenging their 154 00:10:06,880 --> 00:10:08,440 Speaker 2: removal for two days. 155 00:10:08,800 --> 00:10:10,319 Speaker 3: Is there a strategy here? 156 00:10:10,800 --> 00:10:14,480 Speaker 5: Well, certainly, the strategies to intimidate federal judges the public 157 00:10:14,520 --> 00:10:19,560 Speaker 5: criticisms of them, which have led reportedly to spikes and 158 00:10:19,640 --> 00:10:23,040 Speaker 5: death threats, is part of this. A suggestion that they 159 00:10:23,080 --> 00:10:26,160 Speaker 5: don't have to follow them, the characterization of them as 160 00:10:26,280 --> 00:10:29,440 Speaker 5: radical leftists. Some of the judges they've called radical leftists 161 00:10:29,440 --> 00:10:33,080 Speaker 5: were appointed by Ronald Reagan, but no mind. So this 162 00:10:33,280 --> 00:10:36,720 Speaker 5: is all part of a broader strategy to delegitimate the courts, 163 00:10:36,800 --> 00:10:39,920 Speaker 5: to have people not believe that the courts can determine 164 00:10:39,960 --> 00:10:43,400 Speaker 5: the law, and they have people do entirely what the 165 00:10:43,559 --> 00:10:46,760 Speaker 5: government says. That's the path of the dictatorship. 166 00:10:47,559 --> 00:10:51,520 Speaker 2: How unusual is it for the Justice Department to file 167 00:10:51,559 --> 00:10:55,320 Speaker 2: a complaint against a federal judge? In the past, under 168 00:10:55,480 --> 00:10:59,920 Speaker 2: other presidents have justice departments taken this course. 169 00:11:00,360 --> 00:11:03,240 Speaker 5: Almost never, and a good example of that is the 170 00:11:03,280 --> 00:11:09,120 Speaker 5: behavior of Judge Cannon in one of President Trump's criminal cases. 171 00:11:09,200 --> 00:11:14,800 Speaker 5: A number of her rulings were very strange, sometimes self initiated, 172 00:11:15,040 --> 00:11:19,199 Speaker 5: rulings in favor of mister Trump, and the Justice Department, 173 00:11:19,480 --> 00:11:19,880 Speaker 5: though it. 174 00:11:19,840 --> 00:11:21,680 Speaker 1: Had plenty of grounds. 175 00:11:21,640 --> 00:11:24,560 Speaker 5: Didn't even move to recuse her, much less vile a 176 00:11:24,640 --> 00:11:28,880 Speaker 5: judicial misconduct complaint. The ordinary views of the Justice Department 177 00:11:28,920 --> 00:11:32,120 Speaker 5: has a strong interest in public respect for the judiciary 178 00:11:32,120 --> 00:11:35,960 Speaker 5: and doesn't want to undermine it. This administration obviously feels differently, 179 00:11:36,320 --> 00:11:37,199 Speaker 5: and tell us. 180 00:11:37,120 --> 00:11:39,840 Speaker 2: A little about Judge Bosberg's reputation. 181 00:11:40,600 --> 00:11:46,040 Speaker 5: Judge Boseburg's an extremely thorough, extremely smart judge. He basically 182 00:11:46,080 --> 00:11:48,080 Speaker 5: gives you what you get. If you give him a 183 00:11:48,160 --> 00:11:51,480 Speaker 5: serious argument, he'll either ruin your favor or give you 184 00:11:51,520 --> 00:11:54,400 Speaker 5: a careful, analytical reason why he won't. If you give 185 00:11:54,440 --> 00:11:57,240 Speaker 5: him a silly argument, he will say so and not 186 00:11:57,440 --> 00:12:01,200 Speaker 5: dignify it with a lot of extra words. He's very 187 00:12:01,200 --> 00:12:04,400 Speaker 5: hard working, very attentive to the law. He's ruled in 188 00:12:04,440 --> 00:12:08,000 Speaker 5: the Trump administration's favor on a number of matters, including 189 00:12:08,040 --> 00:12:11,959 Speaker 5: involving the Alien Enemies Act, because he felt the law 190 00:12:12,200 --> 00:12:15,120 Speaker 5: was in their favor. He's not a partisan. 191 00:12:15,480 --> 00:12:18,120 Speaker 2: And by the way, the DC Appellate Court has not 192 00:12:18,240 --> 00:12:21,720 Speaker 2: yet addressed the complaint against Judge rey As for her 193 00:12:22,040 --> 00:12:24,760 Speaker 2: sharp questioning of government lawyers. 194 00:12:25,000 --> 00:12:28,800 Speaker 5: I will point out that the standard was that lawyers 195 00:12:28,800 --> 00:12:31,640 Speaker 5: shouldn't be sharply questioned. They are only about two judges 196 00:12:31,720 --> 00:12:33,800 Speaker 5: I ever practiced in front of that. I couldn't have 197 00:12:33,840 --> 00:12:35,200 Speaker 5: filed misconduct complaints. 198 00:12:35,240 --> 00:12:37,240 Speaker 2: Again, you have to have a tough skin if you're 199 00:12:37,280 --> 00:12:40,200 Speaker 2: going to be a litigator. Always a pleasure, David, thank you. 200 00:12:40,520 --> 00:12:44,360 Speaker 2: That's Professor David super of Georgetown Law. Coming up next. 201 00:12:44,679 --> 00:12:49,240 Speaker 2: A bload to labor judges. This is Bloomberg. The Third 202 00:12:49,320 --> 00:12:52,720 Speaker 2: Circuit Court of Appeals has found that the Labor Department's 203 00:12:52,880 --> 00:12:57,160 Speaker 2: internal agency judges don't have the power to hear enforcement 204 00:12:57,200 --> 00:13:00,640 Speaker 2: disputes over the H two A visa program for seasonal 205 00:13:00,679 --> 00:13:03,760 Speaker 2: farm workers. It ruled in favor of a New Jersey 206 00:13:03,920 --> 00:13:06,680 Speaker 2: farm that was trying to overturn more than a half 207 00:13:06,720 --> 00:13:10,479 Speaker 2: million dollars in penalties by arguing that the Labor Department's 208 00:13:10,760 --> 00:13:16,160 Speaker 2: judicial system was unconstitutional under Supreme Court precedent, the decision 209 00:13:16,240 --> 00:13:20,320 Speaker 2: could have broad ramifications. Joining me is constitutional law expert 210 00:13:20,360 --> 00:13:23,800 Speaker 2: Harold Krant, a professor at the Chicago Kent College of Law, 211 00:13:24,280 --> 00:13:26,880 Speaker 2: hel tell us about the challenge to the fines here. 212 00:13:27,280 --> 00:13:31,360 Speaker 6: The tourture case concerned administration of the H to A 213 00:13:31,600 --> 00:13:34,920 Speaker 6: visa worker program, which is designed to bring in seasonal 214 00:13:34,920 --> 00:13:38,520 Speaker 6: workers from out of the country to help with orchards 215 00:13:38,679 --> 00:13:42,040 Speaker 6: in this case, or farms, or it could be entertainment 216 00:13:42,080 --> 00:13:46,560 Speaker 6: complexes where there's not enough US domestic workers. And the 217 00:13:46,640 --> 00:13:49,880 Speaker 6: program is a win win. It helps US industries and 218 00:13:50,080 --> 00:13:53,680 Speaker 6: it helps people from outside the borders get a little 219 00:13:53,720 --> 00:13:56,800 Speaker 6: taste of the United States and earn some money at 220 00:13:56,800 --> 00:13:59,960 Speaker 6: the same time, and so In this case, the Department 221 00:14:00,120 --> 00:14:05,720 Speaker 6: Labor alleged that Sun Valley Orchards had violated the requirements 222 00:14:05,720 --> 00:14:09,720 Speaker 6: of the program in many ways, requiring twelve hour working days, 223 00:14:10,320 --> 00:14:15,160 Speaker 6: providing inadequate water supplies, inadequate bathroom breaks, and so far. 224 00:14:15,320 --> 00:14:19,840 Speaker 6: And so they decided to bring an enforcement action, which 225 00:14:20,400 --> 00:14:23,640 Speaker 6: ended up being hundreds of thousands of dollars in fines, 226 00:14:23,760 --> 00:14:27,520 Speaker 6: as a way to punish Sun Orchards, also to give 227 00:14:27,600 --> 00:14:31,280 Speaker 6: some kind of compensation back to the workers, and at 228 00:14:31,280 --> 00:14:34,320 Speaker 6: the same time send a signal to others who were 229 00:14:34,840 --> 00:14:39,000 Speaker 6: using seasonal workers through the H two A program. And 230 00:14:39,040 --> 00:14:42,560 Speaker 6: so this case raised the question then of could this 231 00:14:42,720 --> 00:14:46,880 Speaker 6: enforcement action be brought within the agency itself. And this 232 00:14:46,960 --> 00:14:50,200 Speaker 6: comes on the heels of the Supreme Court's decision in 233 00:14:50,240 --> 00:14:55,520 Speaker 6: the JERKXI case, which surprisingly limited the types of cases 234 00:14:55,680 --> 00:14:59,720 Speaker 6: that can be brought before agency tribunals. And all the 235 00:14:59,720 --> 00:15:02,480 Speaker 6: court appeals are struggling with these cases now because the 236 00:15:02,520 --> 00:15:06,560 Speaker 6: Supreme Court did not make a very clear distinction of 237 00:15:06,720 --> 00:15:09,600 Speaker 6: what type of enforcement claims can be brought before the 238 00:15:09,600 --> 00:15:13,320 Speaker 6: agency and which have to go to court with a jury. 239 00:15:13,360 --> 00:15:15,480 Speaker 6: And that's a huge consequence because if you have an 240 00:15:15,560 --> 00:15:18,680 Speaker 6: enforcement action before court with a jury, it's slower, it's 241 00:15:18,760 --> 00:15:22,800 Speaker 6: more expensive, and as a result, agencies can bring fewer 242 00:15:22,920 --> 00:15:25,160 Speaker 6: enforcement actions and they will have to pick and choose. 243 00:15:25,480 --> 00:15:27,800 Speaker 6: So this case comes on the heels of many now 244 00:15:28,040 --> 00:15:33,000 Speaker 6: across the country struggling with challenges to agency enforcement actions, 245 00:15:33,040 --> 00:15:35,240 Speaker 6: trying to figure out which side of line do they 246 00:15:35,240 --> 00:15:38,720 Speaker 6: fall on. Can they be brought before the agency or 247 00:15:38,920 --> 00:15:42,280 Speaker 6: does the agency have to go to court with the 248 00:15:42,360 --> 00:15:44,560 Speaker 6: jury trial and bring the action there. 249 00:15:44,840 --> 00:15:49,000 Speaker 2: As you mentioned, going a trial is expensive. Why do 250 00:15:49,760 --> 00:15:54,240 Speaker 2: employers prefer going a trial to having an administrative law 251 00:15:54,360 --> 00:15:55,720 Speaker 2: judge decide the case? 252 00:15:56,880 --> 00:15:59,280 Speaker 6: Well, there are several reasons. I mean, one is they 253 00:15:59,320 --> 00:16:02,960 Speaker 6: think that with some credibility, they think that the ALJ 254 00:16:03,200 --> 00:16:06,440 Speaker 6: and the agency which will then decide the case may 255 00:16:06,480 --> 00:16:10,760 Speaker 6: well be biased against them. Some limited data bears us 256 00:16:10,760 --> 00:16:12,680 Speaker 6: out not conclusive. 257 00:16:12,200 --> 00:16:13,160 Speaker 1: But there's some data. 258 00:16:13,240 --> 00:16:16,000 Speaker 6: But on the other hand, they think that the agency 259 00:16:16,040 --> 00:16:18,800 Speaker 6: won't be as likely to bring the action if they 260 00:16:18,800 --> 00:16:21,800 Speaker 6: have to spend so much money on enforcement. So in 261 00:16:21,880 --> 00:16:26,160 Speaker 6: any given case, the goal would be to go to 262 00:16:26,240 --> 00:16:30,000 Speaker 6: court because it takes longer and the agency may not 263 00:16:30,000 --> 00:16:32,760 Speaker 6: be able to expend the resources to see it through. 264 00:16:33,320 --> 00:16:38,200 Speaker 2: Here, the oral arguments hinged on a public rights exception 265 00:16:38,400 --> 00:16:39,680 Speaker 2: in the Jocracy case. 266 00:16:40,720 --> 00:16:43,840 Speaker 6: So what the the people held in Charcracy was that 267 00:16:44,000 --> 00:16:47,440 Speaker 6: it limited what we understood to be the public rights doctrine. 268 00:16:47,520 --> 00:16:51,080 Speaker 6: The public rights doctrine suggested that the Seventh Amendment and 269 00:16:51,280 --> 00:16:55,720 Speaker 6: those kind of key rights that everybody enjoys in terms 270 00:16:55,840 --> 00:16:58,400 Speaker 6: of going to trial and having a jury of your 271 00:16:58,440 --> 00:17:03,240 Speaker 6: peers be a protection doesn't apply if the issues between 272 00:17:03,280 --> 00:17:07,119 Speaker 6: the government and a private individual. That was our old 273 00:17:07,280 --> 00:17:11,480 Speaker 6: understanding of the public rightstock and so that if Congress 274 00:17:11,520 --> 00:17:16,080 Speaker 6: set up an administrative scheme with penalties for dangerous workplace 275 00:17:16,760 --> 00:17:19,560 Speaker 6: or in this case, you don't treat your employees right, 276 00:17:19,720 --> 00:17:24,480 Speaker 6: or another case it's dangerous chemical storage or privacy violations 277 00:17:24,520 --> 00:17:27,200 Speaker 6: of the Congress sets up that scheme, it can choose 278 00:17:27,520 --> 00:17:32,119 Speaker 6: whether to have enforcement in an administrative agency if it 279 00:17:32,240 --> 00:17:35,080 Speaker 6: wanted to, because it had to do with a non 280 00:17:35,119 --> 00:17:38,359 Speaker 6: common law right of action that Congress has created, and 281 00:17:38,400 --> 00:17:42,960 Speaker 6: therefore can decide to use the instrumentality or mechanism of 282 00:17:42,960 --> 00:17:46,879 Speaker 6: an administrative agency to adjudicate it. That was the prior understanding. 283 00:17:47,200 --> 00:17:50,320 Speaker 6: The Supreme Court in Geocracy cut that back, but we 284 00:17:50,359 --> 00:17:54,640 Speaker 6: don't know exactly how far they really said. Two different 285 00:17:54,640 --> 00:17:57,280 Speaker 6: things difficult to reconcile. The first they said, if there 286 00:17:57,359 --> 00:18:01,520 Speaker 6: is a close common law analog to the action, even 287 00:18:01,560 --> 00:18:04,240 Speaker 6: if Congress has created a new one, if it looks 288 00:18:04,280 --> 00:18:08,639 Speaker 6: like a common law action, then the jury trial right remains. 289 00:18:09,160 --> 00:18:11,920 Speaker 6: And so in the Chocracy case itself, it was a 290 00:18:12,040 --> 00:18:15,760 Speaker 6: fraud action against people who had tried to swindle people 291 00:18:15,840 --> 00:18:18,600 Speaker 6: under the securities laws, and so the court there said, 292 00:18:18,680 --> 00:18:21,560 Speaker 6: this looks like a common law fraud action. It has 293 00:18:21,640 --> 00:18:25,520 Speaker 6: to go to a court. And most of the courts 294 00:18:25,520 --> 00:18:28,160 Speaker 6: of appeals that have been resting with this look at 295 00:18:28,160 --> 00:18:31,560 Speaker 6: that line and try to see how close to a 296 00:18:31,640 --> 00:18:38,080 Speaker 6: common law action does this particular issue exist in terms 297 00:18:38,200 --> 00:18:41,480 Speaker 6: of whether or not the enforcement can be placed in 298 00:18:41,600 --> 00:18:43,720 Speaker 6: a court or in an administrative agency. 299 00:18:43,920 --> 00:18:46,600 Speaker 2: So Rob Johnson, a senior attorney at the Institute for 300 00:18:46,880 --> 00:18:51,080 Speaker 2: Justice and counsel for Sun Valley, told Bloomberg this decision 301 00:18:51,119 --> 00:18:54,880 Speaker 2: means that employers facing penalties for H TWOA violations can 302 00:18:54,880 --> 00:18:57,919 Speaker 2: now demand a jury trial in federal court. Is that 303 00:18:57,960 --> 00:19:01,719 Speaker 2: true for all violations or certain violations. 304 00:19:01,600 --> 00:19:05,080 Speaker 6: Probably all violations of the H two A program. This 305 00:19:05,160 --> 00:19:09,320 Speaker 6: doesn't cover, of course, other administrative mechanisms. And indeed, the 306 00:19:09,359 --> 00:19:13,040 Speaker 6: Third Circuit has gone the other way in a separate case, 307 00:19:13,160 --> 00:19:17,399 Speaker 6: but he's right with respect to this particular mechanism for 308 00:19:17,560 --> 00:19:23,240 Speaker 6: seasonal workers. The court held that the particular enforcement looked 309 00:19:23,520 --> 00:19:27,639 Speaker 6: like a common law contract action because of the fact 310 00:19:27,640 --> 00:19:31,159 Speaker 6: that under the program, in essence, the Department of Labor 311 00:19:31,640 --> 00:19:38,360 Speaker 6: enforces employers to provide certain contractual services to these seasonal workers. 312 00:19:38,800 --> 00:19:42,880 Speaker 6: And so the court held that even though interestingly enough, 313 00:19:42,960 --> 00:19:47,000 Speaker 6: this arises in an immigration type of context, because we 314 00:19:47,200 --> 00:19:53,080 Speaker 6: of this pseudocontractual underlying requirement that all infractions have to 315 00:19:53,119 --> 00:19:56,399 Speaker 6: go to court, and you know, turning the lens the 316 00:19:56,440 --> 00:19:59,320 Speaker 6: other way, we know that, in fact, the Supreme Court 317 00:19:59,400 --> 00:20:04,160 Speaker 6: in indocracy itself said the immigration context is different and 318 00:20:04,200 --> 00:20:07,920 Speaker 6: therefore the Congress should have more plenary authority decide where 319 00:20:08,000 --> 00:20:11,639 Speaker 6: immigration violations should be brought. But the Third Circuit decided, 320 00:20:11,760 --> 00:20:16,200 Speaker 6: even though this arose in an immigration type context, the 321 00:20:16,240 --> 00:20:20,200 Speaker 6: real essence of it is a kind of pseudocontractual relationship 322 00:20:20,240 --> 00:20:23,320 Speaker 6: between in this case, the orchard and the seasonal workers, 323 00:20:23,600 --> 00:20:26,880 Speaker 6: and therefore that any infraction had to be brought before 324 00:20:27,320 --> 00:20:29,800 Speaker 6: a jury trial in the Federal District court. 325 00:20:30,040 --> 00:20:33,360 Speaker 2: The implications of this case, how far reaching are they? 326 00:20:33,480 --> 00:20:38,320 Speaker 2: I mean, could it potentially impact other agencies that handle 327 00:20:38,440 --> 00:20:40,080 Speaker 2: enforcement actions. 328 00:20:40,080 --> 00:20:42,840 Speaker 6: Well, there's a number of cases now that are percolating 329 00:20:42,960 --> 00:20:45,639 Speaker 6: around the country in the wake of darctracy, just to 330 00:20:45,680 --> 00:20:48,760 Speaker 6: see where the line should be brought. We know that 331 00:20:49,280 --> 00:20:52,640 Speaker 6: much of the mechanism of agency enforcement has been crippled 332 00:20:52,680 --> 00:20:56,040 Speaker 6: now because of the jocracy decision that instead there'll be 333 00:20:56,080 --> 00:20:58,840 Speaker 6: fewer cases because they have to be brought in just 334 00:20:58,920 --> 00:21:01,480 Speaker 6: a courts. And the question is how to figure out 335 00:21:01,920 --> 00:21:03,920 Speaker 6: which cases had to be brought in court in which 336 00:21:03,920 --> 00:21:06,440 Speaker 6: cases have to be blought before the agency. So to 337 00:21:06,440 --> 00:21:09,439 Speaker 6: show the other side of the coin, the Third Circuit itself, 338 00:21:09,440 --> 00:21:11,480 Speaker 6: in a different case just a couple of months ago, 339 00:21:12,000 --> 00:21:19,080 Speaker 6: decided that finds for not storing hazardous materials correctly, that 340 00:21:19,080 --> 00:21:22,080 Speaker 6: that could be fines could be blought before the agency. 341 00:21:22,320 --> 00:21:26,919 Speaker 6: They're a paint company allegedly had not stored dangerous materials 342 00:21:26,960 --> 00:21:32,200 Speaker 6: carefully enough, and the court in that case under the 343 00:21:32,200 --> 00:21:36,760 Speaker 6: Federal Aviation Administration had decided to bring again the action 344 00:21:36,920 --> 00:21:41,520 Speaker 6: before its own agency, and there was a challenge to it. 345 00:21:41,800 --> 00:21:45,000 Speaker 6: But the Third Circuit said that this civil penalty action 346 00:21:45,320 --> 00:21:49,320 Speaker 6: is okay to proceed before an agency because hazardous waste 347 00:21:49,400 --> 00:21:52,520 Speaker 6: regulations didn't exist of common law, and even though in 348 00:21:52,560 --> 00:21:55,480 Speaker 6: some ways all this was was a super negligence action, 349 00:21:55,960 --> 00:21:58,800 Speaker 6: the court in that case, again the same Third Circuit 350 00:21:58,840 --> 00:22:02,199 Speaker 6: as in the Orchard case, decided that an enforcement nation 351 00:22:02,320 --> 00:22:04,879 Speaker 6: before an agency could go ahead. So these two cases 352 00:22:04,920 --> 00:22:09,560 Speaker 6: within one circuit illustrates how the line suggested by the 353 00:22:09,560 --> 00:22:14,119 Speaker 6: Supreme Court intocracy is almost impossible to apply evenly, and 354 00:22:14,200 --> 00:22:16,879 Speaker 6: so all the courts of appeals are in disarray in 355 00:22:17,280 --> 00:22:20,919 Speaker 6: how to limit the ability of the public rights doctum 356 00:22:21,000 --> 00:22:24,280 Speaker 6: to exist, and which case is the funnel to the 357 00:22:24,280 --> 00:22:27,520 Speaker 6: sederal district courts and which can continue on before the 358 00:22:27,520 --> 00:22:28,720 Speaker 6: agency tribunals. 359 00:22:29,000 --> 00:22:34,280 Speaker 2: The panel consisted of three judges, all appointed by Republican presidents. 360 00:22:34,560 --> 00:22:36,600 Speaker 3: Do you think that made a difference. 361 00:22:36,200 --> 00:22:39,280 Speaker 2: And should they try to appeal to the full circuit, 362 00:22:39,520 --> 00:22:42,360 Speaker 2: which is more evenly balanced the full third Circuit? 363 00:22:42,520 --> 00:22:44,320 Speaker 6: You raise a great point. I mean, I think that 364 00:22:44,359 --> 00:22:48,840 Speaker 6: this is a politicized issue, not in most people's minds, 365 00:22:48,880 --> 00:22:53,080 Speaker 6: but it is in terms of certain kinds of sort 366 00:22:53,119 --> 00:22:56,639 Speaker 6: of judges with an anti regulatory bias, and even members 367 00:22:56,640 --> 00:22:59,439 Speaker 6: of the Supreme Court have held that there should be 368 00:22:59,480 --> 00:23:02,520 Speaker 6: no agent see enforcement tribunals at all. I mean people 369 00:23:02,600 --> 00:23:05,960 Speaker 6: like justice course such in particular, and judges with that 370 00:23:06,080 --> 00:23:09,240 Speaker 6: kind of bias, and they could be Republicans, maybe some Democrats. 371 00:23:09,240 --> 00:23:13,679 Speaker 6: Mostly Republicans would tend to find almost no case appropriate 372 00:23:13,680 --> 00:23:17,160 Speaker 6: to be brought before an agency tribunal, with probably some 373 00:23:17,200 --> 00:23:21,840 Speaker 6: exceptions as for immigration, foreign affairs, et cetera. So to 374 00:23:21,880 --> 00:23:24,520 Speaker 6: a certain extent, they supolicized. I don't think it's exactly 375 00:23:24,560 --> 00:23:26,639 Speaker 6: the same fault lines as we think of in terms 376 00:23:26,640 --> 00:23:30,160 Speaker 6: of pro Trump or anti Trump, but certainly it is 377 00:23:30,240 --> 00:23:34,960 Speaker 6: in terms of anti regulatory Republicans versus others with a 378 00:23:35,000 --> 00:23:38,080 Speaker 6: different bet. So this case, because of the split in 379 00:23:38,080 --> 00:23:40,920 Speaker 6: the third Circuit of one of these cases that we've discussed, 380 00:23:41,280 --> 00:23:43,480 Speaker 6: may go to the Supreme Court, because the Supreme Court 381 00:23:43,560 --> 00:23:48,199 Speaker 6: really does need to clarify the extent of jocracy and 382 00:23:49,040 --> 00:23:52,119 Speaker 6: when the stem of amendment, in other words, eclipses an 383 00:23:52,200 --> 00:23:55,400 Speaker 6: agency's ability to have an enforcement action. 384 00:23:55,920 --> 00:23:59,320 Speaker 2: If you're in favor of agency actions and power, do 385 00:23:59,359 --> 00:24:01,600 Speaker 2: you really want to go to the Supreme Court? Again, 386 00:24:01,760 --> 00:24:03,439 Speaker 2: we want this to go to the Supreme Court. 387 00:24:03,840 --> 00:24:07,200 Speaker 6: I think within the Trump administration itself, there has not 388 00:24:07,240 --> 00:24:10,679 Speaker 6: been a clear signal of what the Trump administration's position 389 00:24:10,760 --> 00:24:13,720 Speaker 6: will be, So the Soitser General will have to sift 390 00:24:13,760 --> 00:24:17,399 Speaker 6: through these cases and decide what their position is. And 391 00:24:17,400 --> 00:24:20,760 Speaker 6: they've made announcements about other administrative law issues, you know, 392 00:24:20,840 --> 00:24:25,000 Speaker 6: principally with the respect to removal of officers, but they've 393 00:24:25,000 --> 00:24:28,439 Speaker 6: been silent with respect to the breadth of dracracy, So 394 00:24:29,000 --> 00:24:31,840 Speaker 6: we don't exactly know their position. One would think they 395 00:24:31,920 --> 00:24:35,399 Speaker 6: might decide to strip their own agencies of power, but 396 00:24:35,480 --> 00:24:38,240 Speaker 6: they haven't done that. So they're obviously probably a little 397 00:24:38,240 --> 00:24:43,840 Speaker 6: bit ambivalent about stapping their own agency's power to have 398 00:24:44,000 --> 00:24:47,480 Speaker 6: these enforcement actions before their own agencies. So that's the 399 00:24:47,520 --> 00:24:50,080 Speaker 6: decision they'll have to make, and they haven't sent a 400 00:24:50,080 --> 00:24:50,960 Speaker 6: clear signal yet. 401 00:24:51,320 --> 00:24:56,320 Speaker 2: I guess your priorities can change depending on whether you're 402 00:24:56,359 --> 00:24:59,200 Speaker 2: the one in charge of the agency you're not, thanks 403 00:24:59,200 --> 00:25:02,320 Speaker 2: so much, how that's Professor Harold Krent of the Chicago 404 00:25:02,400 --> 00:25:05,160 Speaker 2: Kent College of Law. Coming up next on the Bloomberg 405 00:25:05,280 --> 00:25:10,159 Speaker 2: Law Show. A controversial Trump nominee wins a lifetime appointment 406 00:25:10,280 --> 00:25:13,720 Speaker 2: to the Third Circuit. I'm June Grosso and you're listening 407 00:25:13,760 --> 00:25:19,159 Speaker 2: to Bloomberg the Tenth Circuit Court of Appeals. Here's cases 408 00:25:19,200 --> 00:25:25,800 Speaker 2: from Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. Currently 409 00:25:25,920 --> 00:25:29,679 Speaker 2: seven judges sit on the Tenth Circuit, seven appointees of 410 00:25:29,760 --> 00:25:34,240 Speaker 2: Democratic presidents and five appointees of Republican presidents. But the 411 00:25:34,400 --> 00:25:38,720 Speaker 2: US Judicial Conference apparently thinks that's too many judges for 412 00:25:38,800 --> 00:25:42,400 Speaker 2: the circuit. Joining me is an expert in the federal judiciary, 413 00:25:42,520 --> 00:25:45,959 Speaker 2: Carl Tobias, a professor at the University of Richmond Law School. 414 00:25:46,400 --> 00:25:51,080 Speaker 2: Carl Inner report the Judicial Conference agreed to recommend that 415 00:25:51,160 --> 00:25:55,159 Speaker 2: the President and the Senate do nothing next time a 416 00:25:55,240 --> 00:26:00,159 Speaker 2: seat opens up on that Denver based tenth Circuit. Why 417 00:26:00,200 --> 00:26:01,640 Speaker 2: did they make that recommendation. 418 00:26:02,960 --> 00:26:07,679 Speaker 1: They do this biennial survey of judge ship needs, and 419 00:26:07,840 --> 00:26:11,840 Speaker 1: they look at workloads in appellate district courts with consistently 420 00:26:11,960 --> 00:26:15,840 Speaker 1: low per judge ship caseloads to see whether they can 421 00:26:15,880 --> 00:26:19,880 Speaker 1: make this recommendation. And here I guess they found that 422 00:26:19,920 --> 00:26:24,240 Speaker 1: the tenth should not do that fill that judge ship 423 00:26:24,760 --> 00:26:28,040 Speaker 1: and some other district courts too, and they, you know, 424 00:26:28,080 --> 00:26:31,840 Speaker 1: they promise it on very conservative estimates of caseload and workload. 425 00:26:32,080 --> 00:26:35,159 Speaker 1: But I think in the past, actually the President and 426 00:26:35,200 --> 00:26:40,320 Speaker 1: the Senate have ignored those requests from the Judicial Conference, 427 00:26:40,560 --> 00:26:44,400 Speaker 1: even though the data show that they don't need all 428 00:26:44,480 --> 00:26:47,080 Speaker 1: the judges just because they don't want to pass up 429 00:26:47,080 --> 00:26:48,840 Speaker 1: the opportunity to fill a vacancy. 430 00:26:49,200 --> 00:26:53,880 Speaker 2: In his first term, President Trump ignored this, and President 431 00:26:53,960 --> 00:26:57,800 Speaker 2: Biden also ignored this. I mean, the way judicial appointments 432 00:26:57,840 --> 00:27:03,119 Speaker 2: have become so much more political recently, it seems unlikely 433 00:27:03,160 --> 00:27:05,520 Speaker 2: that any president is going to pass up a chance 434 00:27:05,560 --> 00:27:07,840 Speaker 2: to appoint any circuit court judges. 435 00:27:08,560 --> 00:27:11,879 Speaker 1: That's right exactly. I think there's no question about it. 436 00:27:11,960 --> 00:27:15,199 Speaker 1: And the presidents believe that most of the policy is 437 00:27:15,240 --> 00:27:18,679 Speaker 1: made at the appellate level for multiple states within a 438 00:27:18,760 --> 00:27:22,239 Speaker 1: particular appeals court, and so it's a lost opportunity if 439 00:27:22,280 --> 00:27:25,920 Speaker 1: you don't capitalize on it. So I have every expectation 440 00:27:26,200 --> 00:27:27,480 Speaker 1: that this will be ignored. 441 00:27:27,920 --> 00:27:32,879 Speaker 2: Don't the workloads of circuit court judges change over the years. 442 00:27:32,920 --> 00:27:34,880 Speaker 2: I mean, if you take it away this time, might 443 00:27:34,920 --> 00:27:36,720 Speaker 2: you have to put it back another time? 444 00:27:37,000 --> 00:27:40,360 Speaker 1: Well? You might, But again, I think they're pretty conservative 445 00:27:40,400 --> 00:27:43,560 Speaker 1: about their estimates, and they've been doing it over a 446 00:27:43,600 --> 00:27:48,160 Speaker 1: long period of time, so generally they're pretty accurate about that. 447 00:27:48,760 --> 00:27:53,440 Speaker 1: And there aren't huge swings in the appellate case loads. 448 00:27:54,240 --> 00:27:57,520 Speaker 1: I don't believe, And you know, increasingly in the appeals courts, 449 00:27:57,720 --> 00:28:03,280 Speaker 1: you're not getting full dressed opinions, they're not providing oral arguments. 450 00:28:03,480 --> 00:28:06,679 Speaker 1: All of those are fewer and fewer, and the staff 451 00:28:06,720 --> 00:28:09,920 Speaker 1: does a lot of the work. There are many people 452 00:28:10,080 --> 00:28:12,680 Speaker 1: who you know, clerks and other people who to look 453 00:28:12,720 --> 00:28:16,399 Speaker 1: at the cases rather than give them full treatment. You know, 454 00:28:16,440 --> 00:28:19,520 Speaker 1: they just had to do trioze because they need more resources. 455 00:28:19,640 --> 00:28:22,640 Speaker 1: But Congress is not going to provide more judge ships. 456 00:28:22,720 --> 00:28:25,159 Speaker 1: It doesn't look like it. You know, they have the 457 00:28:25,240 --> 00:28:28,960 Speaker 1: bill I think came out of committee in March, the 458 00:28:29,000 --> 00:28:31,560 Speaker 1: one that you know was on the floor in twenty 459 00:28:31,600 --> 00:28:36,000 Speaker 1: twenty four, but Biden said he wouldn't sign it because 460 00:28:36,400 --> 00:28:39,600 Speaker 1: it was after Trump's election, and so it was reintroduced 461 00:28:39,640 --> 00:28:43,760 Speaker 1: on the House side and it has I think passed there, 462 00:28:43,920 --> 00:28:46,640 Speaker 1: but no action in the Senate. So it may be 463 00:28:46,680 --> 00:28:49,240 Speaker 1: that that Trump will get twenty two more district seats 464 00:28:49,280 --> 00:28:52,040 Speaker 1: in the first tranch if it passes, and they may 465 00:28:52,080 --> 00:28:52,520 Speaker 1: push it. 466 00:28:52,680 --> 00:28:55,760 Speaker 2: That doesn't need just a simple majority or more best 467 00:28:55,760 --> 00:28:56,200 Speaker 2: the Senate. 468 00:28:56,440 --> 00:28:58,920 Speaker 1: That's a good point. In the Senate, I believe it 469 00:28:58,960 --> 00:29:04,080 Speaker 1: would need sixty votes to get cloture, and so not 470 00:29:04,240 --> 00:29:06,920 Speaker 1: clear that they would have that that was the beauty 471 00:29:07,000 --> 00:29:10,240 Speaker 1: of the Senate passing it last time was before anybody 472 00:29:10,320 --> 00:29:12,960 Speaker 1: knew who was going to have a Senate majority and 473 00:29:13,920 --> 00:29:17,360 Speaker 1: who would be the president. And so that's the time 474 00:29:17,400 --> 00:29:20,120 Speaker 1: to strike, you know, in the election year, like in 475 00:29:20,200 --> 00:29:24,000 Speaker 1: twenty twenty eight, because then no one can predict what's 476 00:29:24,040 --> 00:29:27,800 Speaker 1: going to happen. And once the Republicans knew that Trump 477 00:29:27,840 --> 00:29:30,240 Speaker 1: had won and they had a majority, and of course 478 00:29:30,280 --> 00:29:32,479 Speaker 1: they were happy to sign on. The House had not 479 00:29:32,600 --> 00:29:35,440 Speaker 1: passed it at that point. You know, Biden was within 480 00:29:35,520 --> 00:29:38,400 Speaker 1: his rights to then say no, I'm not going to 481 00:29:38,520 --> 00:29:41,480 Speaker 1: sign that because you had an opportunity and you didn't 482 00:29:41,480 --> 00:29:41,760 Speaker 1: take it. 483 00:29:42,280 --> 00:29:46,280 Speaker 2: Well, I think it's the biggest fight over judicial nominee 484 00:29:46,320 --> 00:29:50,520 Speaker 2: in Trump's second term so far. Over Emil Beauvey, his 485 00:29:51,280 --> 00:29:56,120 Speaker 2: former personal criminal lawyer, as well as now in the 486 00:29:56,200 --> 00:30:01,280 Speaker 2: Justice Department, and the Democrats really tried everything about to 487 00:30:01,320 --> 00:30:03,360 Speaker 2: try to stop his appointment. 488 00:30:03,520 --> 00:30:06,320 Speaker 3: They devote a lot of time and resources. 489 00:30:06,360 --> 00:30:11,320 Speaker 2: They stormed out in protest out of the Judiciary Committee 490 00:30:11,320 --> 00:30:14,360 Speaker 2: when the vote was on, They had whistleblowers ready to 491 00:30:14,400 --> 00:30:18,479 Speaker 2: come forward, and yet it still got through. So what 492 00:30:18,520 --> 00:30:21,440 Speaker 2: does this show you about future nominees? I mean, there 493 00:30:21,520 --> 00:30:26,680 Speaker 2: was so much opposition to Bouve from different parts of 494 00:30:26,720 --> 00:30:27,800 Speaker 2: the legal community. 495 00:30:28,480 --> 00:30:31,080 Speaker 1: Well, that's right. I mean there was there were seventy 496 00:30:31,120 --> 00:30:36,080 Speaker 1: five or so retired state and federal judges who said 497 00:30:36,400 --> 00:30:40,360 Speaker 1: that the Senate should not confirm him, and there was 498 00:30:41,280 --> 00:30:44,880 Speaker 1: a fair amount of evidence, and the hearing was one 499 00:30:44,920 --> 00:30:48,920 Speaker 1: where I think Bouvy was not very forthcoming and he 500 00:30:49,000 --> 00:30:51,880 Speaker 1: refused to answer a number of questions and seemed evasive 501 00:30:51,920 --> 00:30:54,840 Speaker 1: about others. And as you suggest, there was a lot 502 00:30:55,040 --> 00:30:59,640 Speaker 1: of pretty strong evidence that was just never heard. They 503 00:30:59,680 --> 00:31:03,480 Speaker 1: really asked for these whistleborrowers to be allowed to come 504 00:31:03,520 --> 00:31:06,320 Speaker 1: in and give their testimony under oath, but it didn't happen. 505 00:31:06,640 --> 00:31:11,120 Speaker 1: And in the markup when they were discussing the nominee, 506 00:31:11,600 --> 00:31:13,480 Speaker 1: I think there was a real question as to whether 507 00:31:14,000 --> 00:31:17,200 Speaker 1: the vote for bov was valid at the time because 508 00:31:17,640 --> 00:31:22,080 Speaker 1: they didn't have two members of the minority. There was 509 00:31:22,160 --> 00:31:26,960 Speaker 1: Booker by himself trying to harangue the rest of the members, 510 00:31:27,360 --> 00:31:29,800 Speaker 1: and they just voted on through. And so I'm worried 511 00:31:29,800 --> 00:31:32,840 Speaker 1: about the process going forward. What are we going to 512 00:31:32,880 --> 00:31:37,000 Speaker 1: see when you only have five minutes to ask questions 513 00:31:37,120 --> 00:31:40,520 Speaker 1: the hearing, and that's not much of an opportunity. And 514 00:31:40,600 --> 00:31:44,760 Speaker 1: I noticed the first circuit and ninth circuit nominees acted 515 00:31:44,800 --> 00:31:48,560 Speaker 1: a little bit like bov in the sense that they 516 00:31:49,200 --> 00:31:52,360 Speaker 1: were not answering questions, saying they were too political or 517 00:31:52,360 --> 00:31:55,440 Speaker 1: it wasn't appropriate for a nominee, and then also being 518 00:31:55,480 --> 00:31:59,560 Speaker 1: pretty evasive and not really answering the questions, and the 519 00:31:59,560 --> 00:32:03,200 Speaker 1: same thing the district nominees. So I'm concerned about the 520 00:32:03,240 --> 00:32:06,760 Speaker 1: process that we saw, and it was particularly troubling with 521 00:32:06,840 --> 00:32:11,040 Speaker 1: Bowie's confirmation process. They used to give a second round 522 00:32:11,040 --> 00:32:14,360 Speaker 1: if it were a really important position, and that probably 523 00:32:14,360 --> 00:32:17,120 Speaker 1: should have done it in this situation, and it would 524 00:32:17,160 --> 00:32:19,320 Speaker 1: have made the Democrats at least feel better and they 525 00:32:19,360 --> 00:32:21,880 Speaker 1: could have asked more questions, but they didn't. 526 00:32:22,320 --> 00:32:27,040 Speaker 2: Grassley has been supportive of whistle blowers, and yet he 527 00:32:27,200 --> 00:32:31,280 Speaker 2: refused to allow them to testify, and I just wonder 528 00:32:31,360 --> 00:32:34,200 Speaker 2: what would the harm have been in allowing them to 529 00:32:34,280 --> 00:32:35,040 Speaker 2: testify it. 530 00:32:35,600 --> 00:32:38,840 Speaker 1: Well, I think they were concerned about what the whistleblowers 531 00:32:38,880 --> 00:32:41,320 Speaker 1: would have to say, even though it would be under 532 00:32:41,360 --> 00:32:43,880 Speaker 1: oath and so they would have to tell the truth. 533 00:32:44,320 --> 00:32:48,280 Speaker 1: That's very unfortunate that something didn't happen to allow them 534 00:32:48,320 --> 00:32:53,120 Speaker 1: to come forward. And I think Grassley was concerned, of course, 535 00:32:53,200 --> 00:32:56,720 Speaker 1: because he has been a supporter of whistleblowers, but in 536 00:32:56,760 --> 00:33:01,160 Speaker 1: this situation, it was just too charged, apparently even for him, 537 00:33:01,640 --> 00:33:05,600 Speaker 1: and so I didn't let it happen. And Democrats, you know, 538 00:33:05,640 --> 00:33:10,120 Speaker 1: and Booker especially were very troubled and suggested that they 539 00:33:10,120 --> 00:33:12,920 Speaker 1: should have a special hair they rejected. 540 00:33:13,160 --> 00:33:15,000 Speaker 2: I don't know of another case I've seen in my 541 00:33:15,040 --> 00:33:18,040 Speaker 2: fourteen years in the Senate where someone so unqualified for 542 00:33:18,120 --> 00:33:19,520 Speaker 2: the benches before us. 543 00:33:19,920 --> 00:33:21,000 Speaker 3: So I often. 544 00:33:20,760 --> 00:33:24,880 Speaker 2: Wonder when you have these kinds of really contentious nominations, 545 00:33:26,120 --> 00:33:29,000 Speaker 2: what happens when that person gets on the Circuit Court? 546 00:33:29,080 --> 00:33:30,760 Speaker 3: I mean, is there any blowback? 547 00:33:31,120 --> 00:33:34,680 Speaker 1: I think judges try to be collegial with the people 548 00:33:34,720 --> 00:33:36,920 Speaker 1: they're working with, because you know, they're always going to 549 00:33:36,920 --> 00:33:40,040 Speaker 1: be sitting on three judge panels except when they're on 550 00:33:40,160 --> 00:33:43,400 Speaker 1: bod and you have to be able to work with 551 00:33:43,520 --> 00:33:47,680 Speaker 1: colleagues whose views you don't always agree with. And so 552 00:33:48,000 --> 00:33:50,720 Speaker 1: I think the judges of the Third Circuit are pretty 553 00:33:50,760 --> 00:33:55,560 Speaker 1: welcoming group and will do their best to help bovy, 554 00:33:56,800 --> 00:34:01,040 Speaker 1: acclimatee and be a productive member of court. I've seen 555 00:34:01,080 --> 00:34:04,440 Speaker 1: that happen, even though the particular judges you know have 556 00:34:04,600 --> 00:34:08,920 Speaker 1: very different perspectives on judging and substantive issues and all 557 00:34:08,960 --> 00:34:12,480 Speaker 1: of that, just because it only can work if everybody 558 00:34:12,520 --> 00:34:15,319 Speaker 1: works together, and both together, because there's plenty of work 559 00:34:15,360 --> 00:34:18,880 Speaker 1: to do. I think, you know, Booker was particularly concerned 560 00:34:18,880 --> 00:34:22,600 Speaker 1: because the White House didn't consult on the nomination with 561 00:34:22,680 --> 00:34:25,680 Speaker 1: the Home State Senators in any meaningful way, and we 562 00:34:25,760 --> 00:34:27,799 Speaker 1: heard that same took play for the first in the night, 563 00:34:28,480 --> 00:34:31,879 Speaker 1: and so that's unfortunate because at least there should be 564 00:34:31,960 --> 00:34:35,520 Speaker 1: some you know, interaction between the White House Counsel and 565 00:34:35,600 --> 00:34:39,120 Speaker 1: the Home State Senators and so that needs to be 566 00:34:39,200 --> 00:34:43,520 Speaker 1: reinstated and done because they don't have the blue slips. 567 00:34:44,000 --> 00:34:48,560 Speaker 1: I wonder if you saw that the President Tuesday night 568 00:34:48,920 --> 00:34:52,680 Speaker 1: posted on x jaw boning grastly to get rid of 569 00:34:52,680 --> 00:34:56,920 Speaker 1: the blue slip and criticizing Republicans for retaining it, and 570 00:34:57,200 --> 00:35:02,319 Speaker 1: Grassly pushed back at the hearing day to say, we're 571 00:35:02,400 --> 00:35:06,359 Speaker 1: retaining the blue slips for districts and for US attorneys 572 00:35:06,800 --> 00:35:09,719 Speaker 1: because they protect the prerogatives the Home State senators and 573 00:35:09,719 --> 00:35:14,000 Speaker 1: the people who they represent in those states. And that's 574 00:35:14,000 --> 00:35:17,640 Speaker 1: been Lindsay Graham's view as chair and ranking member, and 575 00:35:17,760 --> 00:35:21,440 Speaker 1: so I think that will go forward, but of course 576 00:35:21,920 --> 00:35:25,839 Speaker 1: Grassley also instituted the circuit exception for blue slips, and 577 00:35:25,920 --> 00:35:30,960 Speaker 1: so Booker and Kim didn't have any opportunity to hold 578 00:35:31,000 --> 00:35:33,560 Speaker 1: back the blue slip for a Bobe. 579 00:35:33,800 --> 00:35:37,520 Speaker 2: Grassley said he was offended and disappointed by President Trump's 580 00:35:37,520 --> 00:35:41,240 Speaker 2: social media post. I mean, if there's more critique from Trump, 581 00:35:41,640 --> 00:35:44,920 Speaker 2: he has all these US attorneys that are being held 582 00:35:45,000 --> 00:35:48,880 Speaker 2: up because he can't get home state senator approval. I 583 00:35:48,920 --> 00:35:53,839 Speaker 2: wonder how long this opposition to Trump's suggestion will last. 584 00:35:54,440 --> 00:35:57,240 Speaker 1: I think he's a person of his word, and I 585 00:35:57,280 --> 00:36:00,799 Speaker 1: think he has worked very well with Urban when they 586 00:36:00,800 --> 00:36:04,399 Speaker 1: were either ranking member or chair and alternated. And I 587 00:36:04,560 --> 00:36:08,400 Speaker 1: think he'll stick by that because you know how important 588 00:36:08,440 --> 00:36:11,080 Speaker 1: it is, and Graham will back him up. I think 589 00:36:11,239 --> 00:36:15,160 Speaker 1: it's not going to happen, and it benefits the minority party, 590 00:36:15,200 --> 00:36:18,399 Speaker 1: and they know what goes around comes around, and they 591 00:36:18,440 --> 00:36:21,400 Speaker 1: often say that, and you never know in the Senate 592 00:36:21,560 --> 00:36:24,600 Speaker 1: because it's so close who is going to win the 593 00:36:24,640 --> 00:36:28,799 Speaker 1: next midterms or the next majority. And so it is 594 00:36:28,840 --> 00:36:33,080 Speaker 1: important because otherwise you have situations where the home state 595 00:36:33,120 --> 00:36:37,640 Speaker 1: senators don't have an opportunity to make their views known. 596 00:36:37,840 --> 00:36:41,200 Speaker 1: And that's unfortunate because they have to be responsible to 597 00:36:41,239 --> 00:36:45,839 Speaker 1: the voters and so they are concerned about that. But 598 00:36:45,920 --> 00:36:49,120 Speaker 1: I think Grassley will will be strong on this, and 599 00:36:49,239 --> 00:36:51,799 Speaker 1: I'll have plenty of support, certainly from the Democrats, but 600 00:36:51,840 --> 00:36:53,319 Speaker 1: maybe some Republicans as well. 601 00:36:53,840 --> 00:36:56,360 Speaker 2: I'll put that in the column of we shall see. 602 00:36:56,960 --> 00:37:00,400 Speaker 2: Thanks so much, Carl. That's Professor Carl to Buy of 603 00:37:00,440 --> 00:37:03,719 Speaker 2: the University of Richmond Law School. And that's it for 604 00:37:03,760 --> 00:37:06,400 Speaker 2: this edition of The Bloomberg Law Show. Remember you can 605 00:37:06,440 --> 00:37:09,680 Speaker 2: always get the latest legal news on our Bloomberg Law podcasts. 606 00:37:09,920 --> 00:37:12,960 Speaker 2: You can find them on Apple Podcasts, Spotify, and at 607 00:37:13,120 --> 00:37:18,160 Speaker 2: www dot Bloomberg dot com, slash podcast Slash Law, and 608 00:37:18,239 --> 00:37:21,279 Speaker 2: remember to tune into The Bloomberg Law Show every weeknight 609 00:37:21,400 --> 00:37:24,840 Speaker 2: at ten pm Wall Street Time. I'm June Grosso and 610 00:37:24,880 --> 00:37:26,360 Speaker 2: you're listening to Bloomberg