Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: James Boseburg, the chief Judge of the US District Court
Speaker 2: for the District of Columbia, has been at the center
Speaker 2: of the Trump administration's.
Speaker 3: Efforts to deport accused.
Speaker 2: Venezuelan gang members under an eighteenth century wartime law, the
Speaker 2: Alien Enemies Act. He's also been at the center of
Speaker 2: the administration's attacks on the federal judiciary. Attorney General Pam
Speaker 2: Bondi has repeatedly criticized Boseburg.
Speaker 4: This judge has no right to ask those questions. You
Speaker 4: have one unelected federal judge trying to control foreign policies,
Speaker 4: trying to control the Alien Enemies Act, which they have
Speaker 4: no business presiding over. This judge had no right to
Speaker 4: do that. They're meddling in foreign affairs, They're meddling in
Speaker 4: our government. And the question should be why is a
Speaker 4: judge trying to protect terrorists who have invaded our country
Speaker 4: over American citizens, And then, of course Boseburg trying to
Speaker 4: control our foreign policy. These judges are out of control.
Speaker 4: We are going to fight back, and we are going
Speaker 4: to win.
Speaker 2: President Trump has called Boseberg a radical left lunatic of
Speaker 2: a judge, a troublemaker and agitator, even calling for his
Speaker 2: impeachment that led to a rear rebuke from Chief Justice
Speaker 2: John Roberts in March. Now the Justice Department is escalating
Speaker 2: its fight with Boseburg. It's filed an ethics complaint accusing
Speaker 2: the judge of misconduct. My guest is constitutional law expert
Speaker 2: David super, a professor at Georgetown Law. David, why has
Speaker 2: the administration been focusing so much on Judge Boseburg?
Speaker 5: Well cass are assigned to district judges randomly. Judge Boseberg
Speaker 5: have the misfortune of drawing the first case in involving
Speaker 5: the Trump administration's bizarre application of the Alien Enemies Act
Speaker 5: in a non wartime situation, and he did what any
Speaker 5: component judge would do, which is declared illegal.
Speaker 2: The complaint focuses on a March session of the Judicial
Speaker 2: Conference of the United States, a panel of judges led
Speaker 2: by Chief Justice John Roberts. The Justice Department accused Boseburg
Speaker 2: of raising quote concerns that the administration would disregard rulings
Speaker 2: of federal courts, leading to a constitutional crisis, and said
Speaker 2: his comments violated a section of the Code of Conduct
Speaker 2: for federal judges, which says that they should not make
Speaker 2: any public comment on the merits of a matter pending
Speaker 2: or impending in any court. If he did, in fact
Speaker 2: say this, is it at a bounds for a judge
Speaker 2: at a meeting that's supposed to be private to say
Speaker 2: something like that.
Speaker 5: No, of course not. This complaint doesn't pass the last test.
Speaker 5: It's not a public statement if the statement was only
Speaker 5: judges present. I would love to attend meetings to the
Speaker 5: Judicial Conference, but I'm never invited. I'm sure you would too.
Speaker 5: It's a private meeting. By this reasoning someone should bring
Speaker 5: a complaint against Justice Alito or indicating that he thought
Speaker 5: Rovy Wade should be overruled in circulating his draft opinion
Speaker 5: in Bobbs, which later became public, Judge Boseburg is not
Speaker 5: responsible for other people leaking memos about things he said
Speaker 5: in private meetings among judges any more than Justice Alito
Speaker 5: would be responsible for the leak of his draft opinion
Speaker 5: that he shared with other justices.
Speaker 2: In the complaint, the Justice Department also says that Judge
Speaker 2: Boseburg had no basis for saying that because the Trump
Speaker 2: administration has always complied with court orders, but the administration
Speaker 2: violated Boseberg's verbal order in this very case.
Speaker 5: Judge Bozberg's role on the judicial conferences as a representative
Speaker 5: fative of district judges in the District of Columbia, he
Speaker 5: is responsible for reporting what judges on his court are
Speaker 5: concerned about, and it would be at their election of
Speaker 5: his duty if he didn't report concerns that they had.
Speaker 5: Judges on his court had found the administration to be
Speaker 5: out of compliance with a number of court orders by
Speaker 5: administration officials, certainly including the Vice President, arguably including the President,
Speaker 5: had mused about whether they would honor court orders on
Speaker 5: various topics, even Supreme Court orders, certainly orders of district courts,
Speaker 5: and the question of how to deal with the administration
Speaker 5: violating court orders had already been up and down to
Speaker 5: the Supreme Court by that point. Obviously it was something
Speaker 5: they were concerned about. He was not, as we've been told,
Speaker 5: expressing his own views, but rather the views of other
Speaker 5: judges on his bench. I'm sure at other times the
Speaker 5: chief Judge of the District of Columbia may have reported
Speaker 5: that they feel inundated with bent in all cases where
Speaker 5: they feel inundated with crystal meth cases. This is a
Speaker 5: place where judges talk about the challenges of maintaining the judiciary.
Speaker 5: He was doing exactly what he was supposed to be doing.
Speaker 2: Is it concerning that apparently a memo of the meeting
Speaker 2: was leaked to the conservative website the Federalist.
Speaker 5: Well, the Judicial Conference is representing judges and business about it,
Speaker 5: so memos of what happened at this meeting do get
Speaker 5: circulated to judges. President Trump has made a point of
Speaker 5: appointing members of the Federalist Society to the Judiciary, so
Speaker 5: many Federalist Society members received this memo and one of
Speaker 5: them apparently chose to leak it to the Federalist.
Speaker 2: It's also in isolation. They just took about his comment.
Speaker 2: There must have been some kind of discussion that followed that,
Speaker 2: or some remarks and response, but it's just isolated to
Speaker 2: this one comment that he made, which is unusual.
Speaker 5: Well, it is, and they describe his comments as being
Speaker 5: uncalled for, but they don't give us any context to suggest.
Speaker 1: That they weren't.
Speaker 5: And again, Judge Bosberg's role there was to bring to
Speaker 5: the Judicial Conference concerns by judges on his court and
Speaker 5: judges reacting negatively to administration officials and Republican senators suggesting
Speaker 5: that they disregard court orders would be an obvious thing
Speaker 5: to discuss. He doesn't indicate what the point of the
Speaker 5: agenda was, what prompted this, or what anyone else said afterwards. Moreover,
Speaker 5: the Code of Judicial Conduct prohibits comments on the merits
Speaker 5: of the case. This is not a merit issue. This
Speaker 5: is an issue about what does the court do when
Speaker 5: it has decided the merits and one of the parties
Speaker 5: doesn't comply.
Speaker 2: The Justice Department also complains about his handling of the
Speaker 2: case involving the alleged Venezuelan gang members, saying he rushed
Speaker 2: the government through complex litigation, sometimes giving the Trump administration
Speaker 2: less than forty eight hours to respond.
Speaker 5: Well, the rushing was by the administration. The administration could
Speaker 5: have agreed to suspend flights until this matter was litigated,
Speaker 5: and the parties could have submitted their papers in due time.
Speaker 5: The administration was in physical control of all of these people.
Speaker 5: It had no need to send them to Alfalvadore. It
Speaker 5: chose to do it in a great hurry, and that
Speaker 5: led to a quick response from Judge Bosebury, many judges
Speaker 5: would not have given the administration any operatity to respond
Speaker 5: at all when enjoining a crisis that was entirely of
Speaker 5: that party's making. Judge Boseburg bend over backwards to be
Speaker 5: considerate of the administration and to accommodate the schedule, which
Speaker 5: they insisted was very urgent, even though they never explained why.
Speaker 2: If you have a problem with the judge handling your case,
Speaker 2: does a litigan file a misconduct complaint or wait for
Speaker 2: the appeal.
Speaker 5: If what the judge does is sufficiently egregious, you can
Speaker 5: file a misconduct complaint. It's not out now then appropriate.
Speaker 5: But what Judge boseverg here did doesn't mean any of
Speaker 5: the requirements of an improper act. It wasn't public, it
Speaker 5: wasn't on the merits, and wasn't prejudicial. So the normal
Speaker 5: procedure would be either to appeal or in some instances,
Speaker 5: to move for the judge to be recused. But the
Speaker 5: standard even for recusal and for appeal is much much
Speaker 5: higher than this, and the standard judicial misconduct is higher still.
Speaker 2: You said doesn't pass the left test. What do you
Speaker 2: expect to happen here?
Speaker 5: In a normal world? The Chief judge of the DC
Speaker 5: Circuit would dismiss this outright, because this comes from the
Speaker 5: Justice Department and from an administration that has been exceedingly
Speaker 5: vindictive and is cost lines that none of its predecessors
Speaker 5: have in criticizing sitting judges. The chief Judge may refer
Speaker 5: it to a panel, but those judges would then dismiss it.
Speaker 3: We've talked before about this.
Speaker 2: This is the latest in a string of confrontations of
Speaker 2: the Trump administration with the federal courts. They filed a
Speaker 2: misconduct complaint in Fbruary against another DC federal judge, Anna Reyes,
Speaker 2: accusing her of hostile and egregious misconduct for her sharp
Speaker 2: questioning of government lawyers in the case on the Pentagon's
Speaker 2: attempts to ban transgender people from military service. And last
Speaker 2: month they suit every judge in Maryland over a standing
Speaker 2: order that blocked the immediate deportation of migrants, challenging their
Speaker 2: removal for two days.
Speaker 3: Is there a strategy here?
Speaker 5: Well, certainly, the strategies to intimidate federal judges the public
Speaker 5: criticisms of them, which have led reportedly to spikes and
Speaker 5: death threats, is part of this. A suggestion that they
Speaker 5: don't have to follow them, the characterization of them as
Speaker 5: radical leftists. Some of the judges they've called radical leftists
Speaker 5: were appointed by Ronald Reagan, but no mind. So this
Speaker 5: is all part of a broader strategy to delegitimate the courts,
Speaker 5: to have people not believe that the courts can determine
Speaker 5: the law, and they have people do entirely what the
Speaker 5: government says. That's the path of the dictatorship.
Speaker 2: How unusual is it for the Justice Department to file
Speaker 2: a complaint against a federal judge? In the past, under
Speaker 2: other presidents have justice departments taken this course.
Speaker 5: Almost never, and a good example of that is the
Speaker 5: behavior of Judge Cannon in one of President Trump's criminal cases.
Speaker 5: A number of her rulings were very strange, sometimes self initiated,
Speaker 5: rulings in favor of mister Trump, and the Justice Department,
Speaker 5: though it.
Speaker 1: Had plenty of grounds.
Speaker 5: Didn't even move to recuse her, much less vile a
Speaker 5: judicial misconduct complaint. The ordinary views of the Justice Department
Speaker 5: has a strong interest in public respect for the judiciary
Speaker 5: and doesn't want to undermine it. This administration obviously feels differently,
Speaker 5: and tell us.
Speaker 2: A little about Judge Bosberg's reputation.
Speaker 5: Judge Boseburg's an extremely thorough, extremely smart judge. He basically
Speaker 5: gives you what you get. If you give him a
Speaker 5: serious argument, he'll either ruin your favor or give you
Speaker 5: a careful, analytical reason why he won't. If you give
Speaker 5: him a silly argument, he will say so and not
Speaker 5: dignify it with a lot of extra words. He's very
Speaker 5: hard working, very attentive to the law. He's ruled in
Speaker 5: the Trump administration's favor on a number of matters, including
Speaker 5: involving the Alien Enemies Act, because he felt the law
Speaker 5: was in their favor. He's not a partisan.
Speaker 2: And by the way, the DC Appellate Court has not
Speaker 2: yet addressed the complaint against Judge rey As for her
Speaker 2: sharp questioning of government lawyers.
Speaker 5: I will point out that the standard was that lawyers
Speaker 5: shouldn't be sharply questioned. They are only about two judges
Speaker 5: I ever practiced in front of that. I couldn't have
Speaker 5: filed misconduct complaints.
Speaker 2: Again, you have to have a tough skin if you're
Speaker 2: going to be a litigator. Always a pleasure, David, thank you.
Speaker 2: That's Professor David super of Georgetown Law. Coming up next.
Speaker 2: A bload to labor judges. This is Bloomberg. The Third
Speaker 2: Circuit Court of Appeals has found that the Labor Department's
Speaker 2: internal agency judges don't have the power to hear enforcement
Speaker 2: disputes over the H two A visa program for seasonal
Speaker 2: farm workers. It ruled in favor of a New Jersey
Speaker 2: farm that was trying to overturn more than a half
Speaker 2: million dollars in penalties by arguing that the Labor Department's
Speaker 2: judicial system was unconstitutional under Supreme Court precedent, the decision
Speaker 2: could have broad ramifications. Joining me is constitutional law expert
Speaker 2: Harold Krant, a professor at the Chicago Kent College of Law,
Speaker 2: hel tell us about the challenge to the fines here.
Speaker 6: The tourture case concerned administration of the H to A
Speaker 6: visa worker program, which is designed to bring in seasonal
Speaker 6: workers from out of the country to help with orchards
Speaker 6: in this case, or farms, or it could be entertainment
Speaker 6: complexes where there's not enough US domestic workers. And the
Speaker 6: program is a win win. It helps US industries and
Speaker 6: it helps people from outside the borders get a little
Speaker 6: taste of the United States and earn some money at
Speaker 6: the same time, and so In this case, the Department
Speaker 6: Labor alleged that Sun Valley Orchards had violated the requirements
Speaker 6: of the program in many ways, requiring twelve hour working days,
Speaker 6: providing inadequate water supplies, inadequate bathroom breaks, and so far.
Speaker 6: And so they decided to bring an enforcement action, which
Speaker 6: ended up being hundreds of thousands of dollars in fines,
Speaker 6: as a way to punish Sun Orchards, also to give
Speaker 6: some kind of compensation back to the workers, and at
Speaker 6: the same time send a signal to others who were
Speaker 6: using seasonal workers through the H two A program. And
Speaker 6: so this case raised the question then of could this
Speaker 6: enforcement action be brought within the agency itself. And this
Speaker 6: comes on the heels of the Supreme Court's decision in
Speaker 6: the JERKXI case, which surprisingly limited the types of cases
Speaker 6: that can be brought before agency tribunals. And all the
Speaker 6: court appeals are struggling with these cases now because the
Speaker 6: Supreme Court did not make a very clear distinction of
Speaker 6: what type of enforcement claims can be brought before the
Speaker 6: agency and which have to go to court with a jury.
Speaker 6: And that's a huge consequence because if you have an
Speaker 6: enforcement action before court with a jury, it's slower, it's
Speaker 6: more expensive, and as a result, agencies can bring fewer
Speaker 6: enforcement actions and they will have to pick and choose.
Speaker 6: So this case comes on the heels of many now
Speaker 6: across the country struggling with challenges to agency enforcement actions,
Speaker 6: trying to figure out which side of line do they
Speaker 6: fall on. Can they be brought before the agency or
Speaker 6: does the agency have to go to court with the
Speaker 6: jury trial and bring the action there.
Speaker 2: As you mentioned, going a trial is expensive. Why do
Speaker 2: employers prefer going a trial to having an administrative law
Speaker 2: judge decide the case?
Speaker 6: Well, there are several reasons. I mean, one is they
Speaker 6: think that with some credibility, they think that the ALJ
Speaker 6: and the agency which will then decide the case may
Speaker 6: well be biased against them. Some limited data bears us
Speaker 6: out not conclusive.
Speaker 1: But there's some data.
Speaker 6: But on the other hand, they think that the agency
Speaker 6: won't be as likely to bring the action if they
Speaker 6: have to spend so much money on enforcement. So in
Speaker 6: any given case, the goal would be to go to
Speaker 6: court because it takes longer and the agency may not
Speaker 6: be able to expend the resources to see it through.
Speaker 2: Here, the oral arguments hinged on a public rights exception
Speaker 2: in the Jocracy case.
Speaker 6: So what the the people held in Charcracy was that
Speaker 6: it limited what we understood to be the public rights doctrine.
Speaker 6: The public rights doctrine suggested that the Seventh Amendment and
Speaker 6: those kind of key rights that everybody enjoys in terms
Speaker 6: of going to trial and having a jury of your
Speaker 6: peers be a protection doesn't apply if the issues between
Speaker 6: the government and a private individual. That was our old
Speaker 6: understanding of the public rightstock and so that if Congress
Speaker 6: set up an administrative scheme with penalties for dangerous workplace
Speaker 6: or in this case, you don't treat your employees right,
Speaker 6: or another case it's dangerous chemical storage or privacy violations
Speaker 6: of the Congress sets up that scheme, it can choose
Speaker 6: whether to have enforcement in an administrative agency if it
Speaker 6: wanted to, because it had to do with a non
Speaker 6: common law right of action that Congress has created, and
Speaker 6: therefore can decide to use the instrumentality or mechanism of
Speaker 6: an administrative agency to adjudicate it. That was the prior understanding.
Speaker 6: The Supreme Court in Geocracy cut that back, but we
Speaker 6: don't know exactly how far they really said. Two different
Speaker 6: things difficult to reconcile. The first they said, if there
Speaker 6: is a close common law analog to the action, even
Speaker 6: if Congress has created a new one, if it looks
Speaker 6: like a common law action, then the jury trial right remains.
Speaker 6: And so in the Chocracy case itself, it was a
Speaker 6: fraud action against people who had tried to swindle people
Speaker 6: under the securities laws, and so the court there said,
Speaker 6: this looks like a common law fraud action. It has
Speaker 6: to go to a court. And most of the courts
Speaker 6: of appeals that have been resting with this look at
Speaker 6: that line and try to see how close to a
Speaker 6: common law action does this particular issue exist in terms
Speaker 6: of whether or not the enforcement can be placed in
Speaker 6: a court or in an administrative agency.
Speaker 2: So Rob Johnson, a senior attorney at the Institute for
Speaker 2: Justice and counsel for Sun Valley, told Bloomberg this decision
Speaker 2: means that employers facing penalties for H TWOA violations can
Speaker 2: now demand a jury trial in federal court. Is that
Speaker 2: true for all violations or certain violations.
Speaker 6: Probably all violations of the H two A program. This
Speaker 6: doesn't cover, of course, other administrative mechanisms. And indeed, the
Speaker 6: Third Circuit has gone the other way in a separate case,
Speaker 6: but he's right with respect to this particular mechanism for
Speaker 6: seasonal workers. The court held that the particular enforcement looked
Speaker 6: like a common law contract action because of the fact
Speaker 6: that under the program, in essence, the Department of Labor
Speaker 6: enforces employers to provide certain contractual services to these seasonal workers.
Speaker 6: And so the court held that even though interestingly enough,
Speaker 6: this arises in an immigration type of context, because we
Speaker 6: of this pseudocontractual underlying requirement that all infractions have to
Speaker 6: go to court, and you know, turning the lens the
Speaker 6: other way, we know that, in fact, the Supreme Court
Speaker 6: in indocracy itself said the immigration context is different and
Speaker 6: therefore the Congress should have more plenary authority decide where
Speaker 6: immigration violations should be brought. But the Third Circuit decided,
Speaker 6: even though this arose in an immigration type context, the
Speaker 6: real essence of it is a kind of pseudocontractual relationship
Speaker 6: between in this case, the orchard and the seasonal workers,
Speaker 6: and therefore that any infraction had to be brought before
Speaker 6: a jury trial in the Federal District court.
Speaker 2: The implications of this case, how far reaching are they?
Speaker 2: I mean, could it potentially impact other agencies that handle
Speaker 2: enforcement actions.
Speaker 6: Well, there's a number of cases now that are percolating
Speaker 6: around the country in the wake of darctracy, just to
Speaker 6: see where the line should be brought. We know that
Speaker 6: much of the mechanism of agency enforcement has been crippled
Speaker 6: now because of the jocracy decision that instead there'll be
Speaker 6: fewer cases because they have to be brought in just
Speaker 6: a courts. And the question is how to figure out
Speaker 6: which cases had to be brought in court in which
Speaker 6: cases have to be blought before the agency. So to
Speaker 6: show the other side of the coin, the Third Circuit itself,
Speaker 6: in a different case just a couple of months ago,
Speaker 6: decided that finds for not storing hazardous materials correctly, that
Speaker 6: that could be fines could be blought before the agency.
Speaker 6: They're a paint company allegedly had not stored dangerous materials
Speaker 6: carefully enough, and the court in that case under the
Speaker 6: Federal Aviation Administration had decided to bring again the action
Speaker 6: before its own agency, and there was a challenge to it.
Speaker 6: But the Third Circuit said that this civil penalty action
Speaker 6: is okay to proceed before an agency because hazardous waste
Speaker 6: regulations didn't exist of common law, and even though in
Speaker 6: some ways all this was was a super negligence action,
Speaker 6: the court in that case, again the same Third Circuit
Speaker 6: as in the Orchard case, decided that an enforcement nation
Speaker 6: before an agency could go ahead. So these two cases
Speaker 6: within one circuit illustrates how the line suggested by the
Speaker 6: Supreme Court intocracy is almost impossible to apply evenly, and
Speaker 6: so all the courts of appeals are in disarray in
Speaker 6: how to limit the ability of the public rights doctum
Speaker 6: to exist, and which case is the funnel to the
Speaker 6: sederal district courts and which can continue on before the
Speaker 6: agency tribunals.
Speaker 2: The panel consisted of three judges, all appointed by Republican presidents.
Speaker 3: Do you think that made a difference.
Speaker 2: And should they try to appeal to the full circuit,
Speaker 2: which is more evenly balanced the full third Circuit?
Speaker 6: You raise a great point. I mean, I think that
Speaker 6: this is a politicized issue, not in most people's minds,
Speaker 6: but it is in terms of certain kinds of sort
Speaker 6: of judges with an anti regulatory bias, and even members
Speaker 6: of the Supreme Court have held that there should be
Speaker 6: no agent see enforcement tribunals at all. I mean people
Speaker 6: like justice course such in particular, and judges with that
Speaker 6: kind of bias, and they could be Republicans, maybe some Democrats.
Speaker 6: Mostly Republicans would tend to find almost no case appropriate
Speaker 6: to be brought before an agency tribunal, with probably some
Speaker 6: exceptions as for immigration, foreign affairs, et cetera. So to
Speaker 6: a certain extent, they supolicized. I don't think it's exactly
Speaker 6: the same fault lines as we think of in terms
Speaker 6: of pro Trump or anti Trump, but certainly it is
Speaker 6: in terms of anti regulatory Republicans versus others with a
Speaker 6: different bet. So this case, because of the split in
Speaker 6: the third Circuit of one of these cases that we've discussed,
Speaker 6: may go to the Supreme Court, because the Supreme Court
Speaker 6: really does need to clarify the extent of jocracy and
Speaker 6: when the stem of amendment, in other words, eclipses an
Speaker 6: agency's ability to have an enforcement action.
Speaker 2: If you're in favor of agency actions and power, do
Speaker 2: you really want to go to the Supreme Court? Again,
Speaker 2: we want this to go to the Supreme Court.
Speaker 6: I think within the Trump administration itself, there has not
Speaker 6: been a clear signal of what the Trump administration's position
Speaker 6: will be, So the Soitser General will have to sift
Speaker 6: through these cases and decide what their position is. And
Speaker 6: they've made announcements about other administrative law issues, you know,
Speaker 6: principally with the respect to removal of officers, but they've
Speaker 6: been silent with respect to the breadth of dracracy, So
Speaker 6: we don't exactly know their position. One would think they
Speaker 6: might decide to strip their own agencies of power, but
Speaker 6: they haven't done that. So they're obviously probably a little
Speaker 6: bit ambivalent about stapping their own agency's power to have
Speaker 6: these enforcement actions before their own agencies. So that's the
Speaker 6: decision they'll have to make, and they haven't sent a
Speaker 6: clear signal yet.
Speaker 2: I guess your priorities can change depending on whether you're
Speaker 2: the one in charge of the agency you're not, thanks
Speaker 2: so much, how that's Professor Harold Krent of the Chicago
Speaker 2: Kent College of Law. Coming up next on the Bloomberg
Speaker 2: Law Show. A controversial Trump nominee wins a lifetime appointment
Speaker 2: to the Third Circuit. I'm June Grosso and you're listening
Speaker 2: to Bloomberg the Tenth Circuit Court of Appeals. Here's cases
Speaker 2: from Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. Currently
Speaker 2: seven judges sit on the Tenth Circuit, seven appointees of
Speaker 2: Democratic presidents and five appointees of Republican presidents. But the
Speaker 2: US Judicial Conference apparently thinks that's too many judges for
Speaker 2: the circuit. Joining me is an expert in the federal judiciary,
Speaker 2: Carl Tobias, a professor at the University of Richmond Law School.
Speaker 2: Carl Inner report the Judicial Conference agreed to recommend that
Speaker 2: the President and the Senate do nothing next time a
Speaker 2: seat opens up on that Denver based tenth Circuit. Why
Speaker 2: did they make that recommendation.
Speaker 1: They do this biennial survey of judge ship needs, and
Speaker 1: they look at workloads in appellate district courts with consistently
Speaker 1: low per judge ship caseloads to see whether they can
Speaker 1: make this recommendation. And here I guess they found that
Speaker 1: the tenth should not do that fill that judge ship
Speaker 1: and some other district courts too, and they, you know,
Speaker 1: they promise it on very conservative estimates of caseload and workload.
Speaker 1: But I think in the past, actually the President and
Speaker 1: the Senate have ignored those requests from the Judicial Conference,
Speaker 1: even though the data show that they don't need all
Speaker 1: the judges just because they don't want to pass up
Speaker 1: the opportunity to fill a vacancy.
Speaker 2: In his first term, President Trump ignored this, and President
Speaker 2: Biden also ignored this. I mean, the way judicial appointments
Speaker 2: have become so much more political recently, it seems unlikely
Speaker 2: that any president is going to pass up a chance
Speaker 2: to appoint any circuit court judges.
Speaker 1: That's right exactly. I think there's no question about it.
Speaker 1: And the presidents believe that most of the policy is
Speaker 1: made at the appellate level for multiple states within a
Speaker 1: particular appeals court, and so it's a lost opportunity if
Speaker 1: you don't capitalize on it. So I have every expectation
Speaker 1: that this will be ignored.
Speaker 2: Don't the workloads of circuit court judges change over the years.
Speaker 2: I mean, if you take it away this time, might
Speaker 2: you have to put it back another time?
Speaker 1: Well? You might, But again, I think they're pretty conservative
Speaker 1: about their estimates, and they've been doing it over a
Speaker 1: long period of time, so generally they're pretty accurate about that.
Speaker 1: And there aren't huge swings in the appellate case loads.
Speaker 1: I don't believe, And you know, increasingly in the appeals courts,
Speaker 1: you're not getting full dressed opinions, they're not providing oral arguments.
Speaker 1: All of those are fewer and fewer, and the staff
Speaker 1: does a lot of the work. There are many people
Speaker 1: who you know, clerks and other people who to look
Speaker 1: at the cases rather than give them full treatment. You know,
Speaker 1: they just had to do trioze because they need more resources.
Speaker 1: But Congress is not going to provide more judge ships.
Speaker 1: It doesn't look like it. You know, they have the
Speaker 1: bill I think came out of committee in March, the
Speaker 1: one that you know was on the floor in twenty
Speaker 1: twenty four, but Biden said he wouldn't sign it because
Speaker 1: it was after Trump's election, and so it was reintroduced
Speaker 1: on the House side and it has I think passed there,
Speaker 1: but no action in the Senate. So it may be
Speaker 1: that that Trump will get twenty two more district seats
Speaker 1: in the first tranch if it passes, and they may
Speaker 1: push it.
Speaker 2: That doesn't need just a simple majority or more best
Speaker 2: the Senate.
Speaker 1: That's a good point. In the Senate, I believe it
Speaker 1: would need sixty votes to get cloture, and so not
Speaker 1: clear that they would have that that was the beauty
Speaker 1: of the Senate passing it last time was before anybody
Speaker 1: knew who was going to have a Senate majority and
Speaker 1: who would be the president. And so that's the time
Speaker 1: to strike, you know, in the election year, like in
Speaker 1: twenty twenty eight, because then no one can predict what's
Speaker 1: going to happen. And once the Republicans knew that Trump
Speaker 1: had won and they had a majority, and of course
Speaker 1: they were happy to sign on. The House had not
Speaker 1: passed it at that point. You know, Biden was within
Speaker 1: his rights to then say no, I'm not going to
Speaker 1: sign that because you had an opportunity and you didn't
Speaker 1: take it.
Speaker 2: Well, I think it's the biggest fight over judicial nominee
Speaker 2: in Trump's second term so far. Over Emil Beauvey, his
Speaker 2: former personal criminal lawyer, as well as now in the
Speaker 2: Justice Department, and the Democrats really tried everything about to
Speaker 2: try to stop his appointment.
Speaker 3: They devote a lot of time and resources.
Speaker 2: They stormed out in protest out of the Judiciary Committee
Speaker 2: when the vote was on, They had whistleblowers ready to
Speaker 2: come forward, and yet it still got through. So what
Speaker 2: does this show you about future nominees? I mean, there
Speaker 2: was so much opposition to Bouve from different parts of
Speaker 2: the legal community.
Speaker 1: Well, that's right. I mean there was there were seventy
Speaker 1: five or so retired state and federal judges who said
Speaker 1: that the Senate should not confirm him, and there was
Speaker 1: a fair amount of evidence, and the hearing was one
Speaker 1: where I think Bouvy was not very forthcoming and he
Speaker 1: refused to answer a number of questions and seemed evasive
Speaker 1: about others. And as you suggest, there was a lot
Speaker 1: of pretty strong evidence that was just never heard. They
Speaker 1: really asked for these whistleborrowers to be allowed to come
Speaker 1: in and give their testimony under oath, but it didn't happen.
Speaker 1: And in the markup when they were discussing the nominee,
Speaker 1: I think there was a real question as to whether
Speaker 1: the vote for bov was valid at the time because
Speaker 1: they didn't have two members of the minority. There was
Speaker 1: Booker by himself trying to harangue the rest of the members,
Speaker 1: and they just voted on through. And so I'm worried
Speaker 1: about the process going forward. What are we going to
Speaker 1: see when you only have five minutes to ask questions
Speaker 1: the hearing, and that's not much of an opportunity. And
Speaker 1: I noticed the first circuit and ninth circuit nominees acted
Speaker 1: a little bit like bov in the sense that they
Speaker 1: were not answering questions, saying they were too political or
Speaker 1: it wasn't appropriate for a nominee, and then also being
Speaker 1: pretty evasive and not really answering the questions, and the
Speaker 1: same thing the district nominees. So I'm concerned about the
Speaker 1: process that we saw, and it was particularly troubling with
Speaker 1: Bowie's confirmation process. They used to give a second round
Speaker 1: if it were a really important position, and that probably
Speaker 1: should have done it in this situation, and it would
Speaker 1: have made the Democrats at least feel better and they
Speaker 1: could have asked more questions, but they didn't.
Speaker 2: Grassley has been supportive of whistle blowers, and yet he
Speaker 2: refused to allow them to testify, and I just wonder
Speaker 2: what would the harm have been in allowing them to
Speaker 2: testify it.
Speaker 1: Well, I think they were concerned about what the whistleblowers
Speaker 1: would have to say, even though it would be under
Speaker 1: oath and so they would have to tell the truth.
Speaker 1: That's very unfortunate that something didn't happen to allow them
Speaker 1: to come forward. And I think Grassley was concerned, of course,
Speaker 1: because he has been a supporter of whistleblowers, but in
Speaker 1: this situation, it was just too charged, apparently even for him,
Speaker 1: and so I didn't let it happen. And Democrats, you know,
Speaker 1: and Booker especially were very troubled and suggested that they
Speaker 1: should have a special hair they rejected.
Speaker 2: I don't know of another case I've seen in my
Speaker 2: fourteen years in the Senate where someone so unqualified for
Speaker 2: the benches before us.
Speaker 3: So I often.
Speaker 2: Wonder when you have these kinds of really contentious nominations,
Speaker 2: what happens when that person gets on the Circuit Court?
Speaker 3: I mean, is there any blowback?
Speaker 1: I think judges try to be collegial with the people
Speaker 1: they're working with, because you know, they're always going to
Speaker 1: be sitting on three judge panels except when they're on
Speaker 1: bod and you have to be able to work with
Speaker 1: colleagues whose views you don't always agree with. And so
Speaker 1: I think the judges of the Third Circuit are pretty
Speaker 1: welcoming group and will do their best to help bovy,
Speaker 1: acclimatee and be a productive member of court. I've seen
Speaker 1: that happen, even though the particular judges you know have
Speaker 1: very different perspectives on judging and substantive issues and all
Speaker 1: of that, just because it only can work if everybody
Speaker 1: works together, and both together, because there's plenty of work
Speaker 1: to do. I think, you know, Booker was particularly concerned
Speaker 1: because the White House didn't consult on the nomination with
Speaker 1: the Home State Senators in any meaningful way, and we
Speaker 1: heard that same took play for the first in the night,
Speaker 1: and so that's unfortunate because at least there should be
Speaker 1: some you know, interaction between the White House Counsel and
Speaker 1: the Home State Senators and so that needs to be
Speaker 1: reinstated and done because they don't have the blue slips.
Speaker 1: I wonder if you saw that the President Tuesday night
Speaker 1: posted on x jaw boning grastly to get rid of
Speaker 1: the blue slip and criticizing Republicans for retaining it, and
Speaker 1: Grassly pushed back at the hearing day to say, we're
Speaker 1: retaining the blue slips for districts and for US attorneys
Speaker 1: because they protect the prerogatives the Home State senators and
Speaker 1: the people who they represent in those states. And that's
Speaker 1: been Lindsay Graham's view as chair and ranking member, and
Speaker 1: so I think that will go forward, but of course
Speaker 1: Grassley also instituted the circuit exception for blue slips, and
Speaker 1: so Booker and Kim didn't have any opportunity to hold
Speaker 1: back the blue slip for a Bobe.
Speaker 2: Grassley said he was offended and disappointed by President Trump's
Speaker 2: social media post. I mean, if there's more critique from Trump,
Speaker 2: he has all these US attorneys that are being held
Speaker 2: up because he can't get home state senator approval. I
Speaker 2: wonder how long this opposition to Trump's suggestion will last.
Speaker 1: I think he's a person of his word, and I
Speaker 1: think he has worked very well with Urban when they
Speaker 1: were either ranking member or chair and alternated. And I
Speaker 1: think he'll stick by that because you know how important
Speaker 1: it is, and Graham will back him up. I think
Speaker 1: it's not going to happen, and it benefits the minority party,
Speaker 1: and they know what goes around comes around, and they
Speaker 1: often say that, and you never know in the Senate
Speaker 1: because it's so close who is going to win the
Speaker 1: next midterms or the next majority. And so it is
Speaker 1: important because otherwise you have situations where the home state
Speaker 1: senators don't have an opportunity to make their views known.
Speaker 1: And that's unfortunate because they have to be responsible to
Speaker 1: the voters and so they are concerned about that. But
Speaker 1: I think Grassley will will be strong on this, and
Speaker 1: I'll have plenty of support, certainly from the Democrats, but
Speaker 1: maybe some Republicans as well.
Speaker 2: I'll put that in the column of we shall see.
Speaker 2: Thanks so much, Carl. That's Professor Carl to Buy of
Speaker 2: the University of Richmond Law School. And that's it for
Speaker 2: this edition of The Bloomberg Law Show. Remember you can
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