Speaker 1: President Trump has described his administration as a quote well
Speaker 1: oiled machine. That might not be true as a general matter,
Speaker 1: but it's a pretty apt description when it comes to
Speaker 1: judicial nominations. In addition to the successful Supreme Court nomination
Speaker 1: of now Justice Neil Gorsuch, the president has selected eleven
Speaker 1: men and women to the all important federal appeals courts,
Speaker 1: and three have now been confirmed by the Senate. More
Speaker 1: than two dozen other people have been nominated for federal
Speaker 1: district courts and other tribunals. Democrats are starting to complain
Speaker 1: about the process. A new story in Politico says several
Speaker 1: of the nominations were made without taking the traditional step
Speaker 1: of consulting consulting with the home state senators. With us
Speaker 1: to talk about Donald Trump's campaign to remake the federal
Speaker 1: judiciary is Kerrie Severino, She's chief counsul at the Judicial
Speaker 1: Crisis Network. And Caroline Frederickson, she's the president of the
Speaker 1: American Constitution Society. Welcome to you both, um, Caroline, I
Speaker 1: know you have some concerns about the people Donald Trump
Speaker 1: is supporting, but I want to talk, just if we can,
Speaker 1: at first, just about the scope of what he's doing.
Speaker 1: Is it fair to say that Donald Trump is moving
Speaker 1: much more quickly and assertively to fill vacancies than Barack
Speaker 1: Obama did eight years ago. Well, without a doubt he's UM.
Speaker 1: He has been moving very quickly UM. And I think,
Speaker 1: as you mentioned, the well oiled machine UM seems not
Speaker 1: to apply generally UM with respect to the Trump administration,
Speaker 1: but they have definitely moved much more quickly UM on
Speaker 1: judicial nominations, which I think for many of us because
Speaker 1: of the caliber of the people he's nominating, is very concerning.
Speaker 1: Carry Also, is it true that there have been a
Speaker 1: lot more nominations for him to fill when he entered
Speaker 1: office because of the fact that Mitch McConnell, much as
Speaker 1: he held up the nomination of another Supreme Court justice
Speaker 1: and didn't have any hearings on Merrick Garland, also tried
Speaker 1: to hold back on federal judge nominations. Actually, at the
Speaker 1: end of Obama's term, he had he was confirming judges
Speaker 1: on par at the same time period in George bush
Speaker 1: bushes second term. I think you just have kind of
Speaker 1: a an ebb and flow of the number of vacancies
Speaker 1: and Donald Trump, I I agree, has UM come in
Speaker 1: with a great number of vacancies, and different presidents have
Speaker 1: had more and more or less, but on average, he
Speaker 1: has a hand a great number to fill and then
Speaker 1: made it a higher priority than than President Obama just
Speaker 1: didn't make it a higher priority, particularly his first term.
Speaker 1: So he's certainly moving with a lot more speed than
Speaker 1: President Obama did. I just knew the two of you
Speaker 1: weren't were going to agree on everything, Caroline, and it
Speaker 1: sounds like you wanted to jump in there, go ahead,
Speaker 1: time frameier talking about. But there was a historic vacancy
Speaker 1: because Mitch McConnell decided that the last two years of
Speaker 1: Obama's presidency wasn't gonna allow any judges practically to get through. So, um,
Speaker 1: let's set the record straight here. Um, the reason why
Speaker 1: Donald Trump is presented with so many vacancies is because
Speaker 1: Mitch McConnell is a fierce partisan, uh and took it
Speaker 1: out on our nation's court system and left so many
Speaker 1: vacancy eats and now they're jamming through. I like to
Speaker 1: quote back Kerry who accused President Obama simply of trying
Speaker 1: when he tried to fill vacant seats on the d
Speaker 1: C circuit of packing the courts. We'll actually think that
Speaker 1: that's what Donald Trump is trying to do. He's trying
Speaker 1: to pack the courts with a bunch of of very
Speaker 1: um questionable nominees. Caroline, let me before we go back
Speaker 1: to Carry, I want to ask you, given the way
Speaker 1: you just describe Republicans acting, um, are we not seeing
Speaker 1: some of the same tactics from the Democrats? What what
Speaker 1: are you seeing from the Democrats and dealing with the
Speaker 1: Trump nominations. It seems like they are trying to push
Speaker 1: back pretty hard. Well, you know, they have very limited leverage. Honestly,
Speaker 1: the uh what they are trying to do is assert
Speaker 1: their constitutional advice and consent role. Um. They're supposed to
Speaker 1: be consulted before nominations get sent to the Senate. Um,
Speaker 1: they're supposed to have a role that is played in
Speaker 1: the Senate historically through the blue slip process um where
Speaker 1: home state senators get to register whether or not they're
Speaker 1: in agreement with the nominees um, and that's not being respected. Carry.
Speaker 1: As far as the blue slip plot process, I'd like
Speaker 1: you to explain it and whether it is supposed to
Speaker 1: be used for for home state senators who don't want
Speaker 1: to approve who or who don't approve of the judicial
Speaker 1: nominee before them. So the blue slip process isn't the
Speaker 1: Senate rule or any any laid down rule. It's a
Speaker 1: practice of senatorial courtesy that goes back about a hundred
Speaker 1: years and really under every judiciary committee has had a
Speaker 1: different process for most of its history. UM, And I
Speaker 1: think that's what as it described now. It doesn't mean
Speaker 1: an absolute block on a nominee where the blue slip
Speaker 1: has not been returned, or even where negative blue slip
Speaker 1: has been returned from that home state senator. And that's
Speaker 1: what Democrats seemed to be asking at this point. But
Speaker 1: that's that's simply not historical for what has been happening. However,
Speaker 1: at this point, we haven't had anyone moved forward that
Speaker 1: didn't have a slips return. So I'm not I'm not
Speaker 1: actually sure what but Freaderson complaining about. At this point,
Speaker 1: we have had Democrats holding up trying to hold up
Speaker 1: nominee saying, oh, we need time to look at these nominees. UM,
Speaker 1: a link of time that I would describe as unreasonable
Speaker 1: when these are people who are well known in their
Speaker 1: home states. The ideas these senators should know their states
Speaker 1: well Historically it was more common they give them seven
Speaker 1: days to return their blue slips. Now senators are asking
Speaker 1: for extended periods of time, and it's really just a
Speaker 1: matter of foot dragging, as we've seen the Democrats doing
Speaker 1: with confirming uh, the Trump nominees from the cabinet on doubt.
Speaker 1: Kerry Um, you're talking a moment ago about you said
Speaker 1: Democrats are are sort of dragging their feet and handing
Speaker 1: in the so called blue slips that are the home
Speaker 1: state senators basically saying, uh, go ahead and consider a nominee.
Speaker 1: Um are when you look big picture at at everything
Speaker 1: Republicans and Democrats have been doing on the subject of
Speaker 1: judicial nom nominations. Are Democrats really doing anything that Republicans
Speaker 1: didn't do when the shoe was on the other foot
Speaker 1: in Barack Obama was in the White House. Well, we've
Speaker 1: been talking about the blue sliss up until now. But
Speaker 1: I think a real significant point that is a big
Speaker 1: contrast is the way they've used just Senate procedure to
Speaker 1: require extensive amounts of debate, debate for all these nominees.
Speaker 1: You even have David and I who was a nominee
Speaker 1: who was a former Obama nominee who had unanimous support
Speaker 1: in the Senate a hundred votes, who they required that
Speaker 1: the Republican Senators to go through culture required them to
Speaker 1: spend thirty hours of debate allocated to his nomination. These
Speaker 1: are nominees who would have absolutely been confirmed by a
Speaker 1: voice vote by unanimous consent um in any other type
Speaker 1: of administration. Typically there are a lot of judges who
Speaker 1: were confirmed that way, and nowadays this is not something
Speaker 1: that they reserve for anyone who's even remotely controversial. It
Speaker 1: is just simply everyone across the board. Again, even people
Speaker 1: who have unanimous support, they're trying to pull out all
Speaker 1: these procedural stops to slow the process down. That's that
Speaker 1: abuse of the process and shouldn't be shouldn't be continued.
Speaker 1: It's not in the best interests of the American people. Caroline,
Speaker 1: I want to talk about controversial appointment John Bush. He
Speaker 1: was confirmed to the sixth Circuit. Just some of the
Speaker 1: more notable things that he did was or said was
Speaker 1: he compared abortion to slavery. He also spread Obama conspiracy
Speaker 1: theories on blogs. Does his confirmation indicate and it was
Speaker 1: down party lines mean that there is no way for
Speaker 1: Democrats to block a Trump appointee, even one that stands
Speaker 1: out as unique. Caroline, Yes, can you hear me? Yes?
Speaker 1: Go ahead? So I did, I just want to This
Speaker 1: actually relates to something that Kerry was just saying. Um.
Speaker 1: You know, the major point here is that, Um, the
Speaker 1: Republicans did away with the filibuster for all traditional nominations
Speaker 1: and so UM, the reason why they were so many
Speaker 1: vacancies is that they created them by blocking every single
Speaker 1: one of of President Obama's and keeping those seats open.
Speaker 1: That doesn't exist anymore. So, uh, you know, there are
Speaker 1: other tactics that the Democrats are forced to use. UM,
Speaker 1: and partly because these nominees are really so extreme. UM.
Speaker 1: And the conspiracy theory that the nominee was active in
Speaker 1: spreading was that President Obama was not American, that he
Speaker 1: was Kenyan, uh, and therefore not appropriate as as the president.
Speaker 1: I mean, this is completely out of line with what
Speaker 1: we should be expecting for the caliber of our federal judges. UM.
Speaker 1: And so it is very concerning. UM. There have been
Speaker 1: others who are equally disturbing. UH. Nominee who has called
Speaker 1: Justice Kennedy a judicial prostitute. I mean, these aren't the
Speaker 1: kind of people we think have the right temperament to
Speaker 1: be sitting on the federal bench. Karl, let me have
Speaker 1: you responded that in particularly with John Bush is now
Speaker 1: on He's now judge. Bush was confirmed by by the Senate.
Speaker 1: But you heard June describes some of the things that
Speaker 1: he said as a blogger. Um, is he in the mainstream?
Speaker 1: Is he fit to be a federal judge? Well, first,
Speaker 1: I do have to correct one glaren factual error where
Speaker 1: she said Republicans were the ones who elimited the judicial filibuster,
Speaker 1: completely false. That was Harry Reid in two thousand thirteen
Speaker 1: who did so in order to allow President Obama to
Speaker 1: fill up the DC circuit, which had the lowest caseload
Speaker 1: of the nation, and were judges were twiddling their thumbs.
Speaker 1: This is why I thought you shouldn't be packing that court. So, Um,
Speaker 1: the the Republicans helped get rid of it for the
Speaker 1: last step, which was the Supreme Court. But all of
Speaker 1: these are appellate nominees that had everything to do with
Speaker 1: Harry read nothing to do with Republicans. Um. These nominees
Speaker 1: are people who are fulfilling President Bushes or President Trump's
Speaker 1: promise campaign promise that was very significant in this last selection.
Speaker 1: I think a key to his winning, which is he
Speaker 1: wants to put nominees McCourt who are going to be
Speaker 1: in the line of Justice Scalio, who are going to
Speaker 1: be committed to the Constitution and the law as written.
Speaker 1: That something that in this election was squarely before the
Speaker 1: people in a way that I don't know that it
Speaker 1: ever has been in a presidential election before. And we
Speaker 1: even saw one fifth of voters going to the polls
Speaker 1: with that is their number one issue, and they broke
Speaker 1: decidedly for Trump. So these nominees are are fulfilling that
Speaker 1: campaign promise. And I think their their judicial philosophy is
Speaker 1: the most important thing here, and that is that is
Speaker 1: very squarely in line with Justice Scalia. Caroline. Is everybody
Speaker 1: like John Bush? Um? You know, I look at somebody
Speaker 1: like Kevin Newsom, the last judge who was confirmed. I
Speaker 1: know him a little bit. Um. He's somebody who clerked
Speaker 1: for Justice suitor, a liberal liberal justice. Um. Are we
Speaker 1: are we painting with two broad a brush here when
Speaker 1: we when we're talking about Trump nominee. I think all
Speaker 1: the Democrats are asking is that just as President Obama
Speaker 1: prior to nominating anybody always consulted with the Republican Senators
Speaker 1: UM and worked with their judicial selection commissions. Instead. What
Speaker 1: President Trump is doing, who, by the way, was elected
Speaker 1: by a minority of the voters, UM, not the majority
Speaker 1: of the voters UM. What President Trump is doing is
Speaker 1: he is making nominations without consulting in advance. And that's
Speaker 1: the problem that Democrats have because they are being cut
Speaker 1: out of this process and expected, you know, after President
Speaker 1: Trump picked somebody as extreme as Judge bush Um to
Speaker 1: turn over their blue slips without having been played a
Speaker 1: role in the selection process, and that is completely unprecedented.
Speaker 1: We're going to have to leave it there. I want
Speaker 1: to thank our guests. That was Caroline Frederickson, she is
Speaker 1: the President of the American Constitution Society, and Kerry Sabino,
Speaker 1: chief council of the Judicial Crisis Network. I'm sure we'll
Speaker 1: be talking to both of you more. We of course,
Speaker 1: do have the prospect of another Supreme Court vacancy or
Speaker 1: perhaps more during the Trump presidency, and we will certainly
Speaker 1: have many, many more lower court nominations as well.