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The Legal Battles Over Abortion · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 2: Well, stop Donald Trump's extreme abortion bands, because we trust
0:17
Speaker 2: women to make decisions about their own body and not
0:22
Speaker 2: have their government tell them what to do.
0:26
Speaker 1: Presumptive Democratic presidential nominee Kamala Harris is making abortion rights
0:31
Speaker 1: a top issue in the November election, a familiar role
0:34
Speaker 1: for Harris, who's been the party's leading voice on abortion access,
0:38
Speaker 1: while Republican presidential nominee Donald Trump, who's generally shied away
0:43
Speaker 1: from the issue on the campaign trail, thanked the six
0:46
Speaker 1: conservative Supreme Court justices for overturning Row at a rally
0:51
Speaker 1: in Saint Cloud, Minnesota on Saturday.
0:54
Speaker 3: Getting it back to the states puts the question where
0:56
Speaker 3: it belongs with the vote of the people. And it's overtime,
1:00
Speaker 3: and you'll see this over time, it's going to work
1:03
Speaker 3: out incredibly well.
1:05
Speaker 1: But right now, legal battles over abortion are going on
1:09
Speaker 1: in courts across the country, whether it's the continuing battles
1:12
Speaker 1: over the abortion pill MIFA pristone in federal courts, the
1:16
Speaker 1: battles over enforcing restrictions on abortion in state courts. Now
1:21
Speaker 1: that fourteen states have bans on abortion at all stages
1:24
Speaker 1: of pregnancy with limited exceptions, or battles in several states
1:28
Speaker 1: over abortion rights measures being on the ballot in November.
1:32
Speaker 1: Joining me is Michelle Goodwin, a professor of constitutional law
1:36
Speaker 1: and global health policy at Georgetown Law. So let's start
1:40
Speaker 1: with the battles over the abortion pill. The ninth circuit
1:44
Speaker 1: shot down last week are request by Idaho and six
1:48
Speaker 1: other Republican led states to get involved in this lawsuit
1:52
Speaker 1: between Democratic led jurisdictions and the Biden administration over the
1:56
Speaker 1: abortion pill MIFA pristone. What exactly is this suit of.
2:01
Speaker 2: Well, essentially, what you have is that the State of
2:03
Speaker 2: Washington believes that the FDA has been too restrictive with
2:07
Speaker 2: regard to mefapristone and that some of those restrictions need
2:12
Speaker 2: to be lifted. There is an argument to be made
2:15
Speaker 2: for why the State of Washington has pushed forward this
2:20
Speaker 2: litigation before mithapristone had been approved in the US marketplace,
2:26
Speaker 2: it was already in use in other parts of the world,
2:29
Speaker 2: had been deemed to be safe and effective, and we
2:31
Speaker 2: know through twenty four years of mifapristone being available in
2:35
Speaker 2: the United States that it's been widely used certainly even
2:39
Speaker 2: more so posts the Dobs decision, but that it's safe
2:42
Speaker 2: and effective. All of the research consistently shows that, and
2:47
Speaker 2: so the state of Washington has suggested that essentially, by
2:52
Speaker 2: denying a broader berth for the use of methapristone, it's
2:57
Speaker 2: denying greater access to people who could benefit from using that.
3:01
Speaker 2: The intervention that's been led by states that have abortion
3:07
Speaker 2: bands or conservative legislatures is in effect to tamp down
3:12
Speaker 2: on that they've been denied. Idaho has deny the opportunity
3:17
Speaker 2: to basically intervene, and that intervention would have essentially been
3:24
Speaker 2: part of a broader movement, which is to restrict mifipristone
3:27
Speaker 2: in the US marketplace.
3:29
Speaker 1: So it was again an issue of standing, much as
3:32
Speaker 1: the mifipristone case at the Supreme Court was explain why
3:36
Speaker 1: the judges decided that those Republican states did not have standing.
3:40
Speaker 2: Well, in order to have standing, you must actually be
3:43
Speaker 2: affected by it, and you must have what one would
3:46
Speaker 2: call some skin in the game with regard to this,
3:50
Speaker 2: and be harmed in the potential that you could actually
3:53
Speaker 2: get relief. The kind of relief that's being thought and
3:57
Speaker 2: what you've seen recently in these abortion cases is that
4:01
Speaker 2: the way to dispense with them is on technical procedural
4:06
Speaker 2: grounds rather than the substantive argument. And so in this
4:10
Speaker 2: case Idaho and others, they don't have the standing in
4:15
Speaker 2: order to be able to intervene in this case, it's
4:19
Speaker 2: a procedural way of essentially shutting them out.
4:22
Speaker 1: At the same time, there's a battle over mifipristone in
4:28
Speaker 1: the Northern District of Texas, and this is the case
4:30
Speaker 1: that went up to the Supreme Court that found the
4:32
Speaker 1: Physicians Group didn't have standing to sue. But Judge Matthew Kusmrick,
4:37
Speaker 1: who I will say is a Christian ideologue, He's allowed Idaho, Missouri,
4:42
Speaker 1: and Kansas to take up where the Physicians Group left off.
4:46
Speaker 1: How did he find that those states had standing?
4:49
Speaker 2: So this is a really important question, and the question
4:53
Speaker 2: gets at the heart of what we've seen in this space.
4:59
Speaker 2: Years ago, so Erwin Shimmerinsky's the dean of the University
5:02
Speaker 2: of California Berkeley Law School, and I wrote an article
5:06
Speaker 2: about gerrymandering abortion rights, and that's where I'd like to
5:11
Speaker 2: start with answering this question, which is that if one
5:16
Speaker 2: actually assumes that there is some legitimacy. Here, then one
5:19
Speaker 2: tries to find the answer that is clear and that
5:23
Speaker 2: is logical in order to be able to respond. But unfortunately,
5:28
Speaker 2: what one sees in cases that involve abortion rights has
5:32
Speaker 2: been what some might call selective outcomes, outcome determinatism, or
5:38
Speaker 2: even opportunistic originalism, which I've called some of these decisions.
5:43
Speaker 2: And that is to say that it's actually hard to
5:46
Speaker 2: find the legitimate theory, the legitimate rule of law argument,
5:52
Speaker 2: the legitimate well articulated beyond those judges and argument that
5:59
Speaker 2: lines up. That's been very difficult. And yet what we've
6:02
Speaker 2: found with Judge Chasmeric those two things I think that
6:05
Speaker 2: are worth noting. With Judge Chasmeric, he's a lone sitting
6:10
Speaker 2: judge in Amarillo, Texas. So there has been a kind
6:14
Speaker 2: of form shopping or judge shopping. Some have articulated with
6:18
Speaker 2: regard to Judge Chrismeric and some others where they know
6:21
Speaker 2: that there is a particular outcome that might almost be
6:24
Speaker 2: guaranteed given the ideological and political leanings of those judges.
6:31
Speaker 2: I think it's worth noting the distinction between what would
6:34
Speaker 2: be ideological and what would be political that we've seen
6:37
Speaker 2: in very recent years and so in the space of
6:40
Speaker 2: that with Judge Chasmeric being very outspoken in terms of
6:45
Speaker 2: his anti abortion views, as anti abortion writings, et cetera,
6:50
Speaker 2: that even though the Supreme Court had ruled that the
6:54
Speaker 2: plaintiffs in the Mythopristone case, where he had basically provided
7:00
Speaker 2: or this alliance all that they had requested, basically wrote
7:05
Speaker 2: an opinion and that decision that was very generous towards
7:09
Speaker 2: their interests, the Supreme Court ruled that this particular group
7:14
Speaker 2: which fashioned themselves as doctors, but one was a dentist
7:18
Speaker 2: and another one a master's degree in theology, the Court ruled
7:21
Speaker 2: that they did not have standing. The Supreme Court did. Now,
7:26
Speaker 2: with your question about this new prop of individuals, I
7:30
Speaker 2: preface it by just simply saying that Judge Becausemeric has
7:34
Speaker 2: shown himself to be outcome determinative. He relied in the
7:39
Speaker 2: Mythopristoe case on an anonymous blog post, he relied on
7:44
Speaker 2: invited two articles that were later rescinded because of their
7:49
Speaker 2: dramatic and accuracies. And so we're not talking about a
7:54
Speaker 2: judge that has shown the capacity for looking objectively matters
8:00
Speaker 2: with regard to abortion, and that includes with how he's
8:05
Speaker 2: handled matters of standing.
8:07
Speaker 1: The lawsuits going forward in Texas, then with these Republican
8:11
Speaker 1: states as the plaintiffs for now, that.
8:14
Speaker 2: Is what's taking shape. And let me just add one
8:18
Speaker 2: additional thing to this, which is that the Supreme Court
8:22
Speaker 2: itself gave an open door for the possibility that there
8:28
Speaker 2: could be other plaintiffs that might be able to pursue
8:32
Speaker 2: this line of argumentation. So even while the Supreme Court
8:38
Speaker 2: ruled that the plaintiffs who are part of the Hippocratic
8:43
Speaker 2: Alliance did not have standing, the Court yet offered other
8:49
Speaker 2: kinds of analysis where there could be others that would
8:54
Speaker 2: perhaps be able to pursue this line of limiting myfipristone
8:59
Speaker 2: in the market.
9:00
Speaker 1: Let's say Kasmeric's decision goes up to the Fifth Circuit,
9:03
Speaker 1: which I assume it will at some point.
9:05
Speaker 4: Yeah, and the.
9:06
Speaker 1: Fifth Circuit finds that these states have standing, these Republican
9:10
Speaker 1: led states, that is contrary to the Ninth Circuit's ruling.
9:14
Speaker 1: So then this issue goes back up to the Supreme Court.
9:17
Speaker 2: Yeah. So the Fifth Circuit has shown itself to also
9:22
Speaker 2: be one of the most conservative in a political fashion,
9:26
Speaker 2: not just ideological. You know, over centuries there are judges
9:31
Speaker 2: justices that have ideological leanings, There's been some room for
9:35
Speaker 2: accepting that their ideological leanings may be infused and how
9:40
Speaker 2: they observe, analyze right an opinion about a case. But
9:46
Speaker 2: I think it's important to note that what federal judges, scholars,
9:50
Speaker 2: and others are noticing is that we're in a space
9:53
Speaker 2: that's far beyond ideology, where they're seemingly a political agenda
10:00
Speaker 2: amongst some judges and even justices. The Fifth Circuit has
10:05
Speaker 2: been called out in that regard for taking extreme views
10:10
Speaker 2: that are extreme departures for what has been American rule
10:14
Speaker 2: of law. And it would not be surprising if it
10:18
Speaker 2: were that Judge chrismeric who failed in the first Methiprostone case,
10:23
Speaker 2: and that failure was in not recognizing that those individuals
10:28
Speaker 2: did not qualify for standing, for which he was corrected
10:32
Speaker 2: at the Supreme Court level. Right, So that was a
10:34
Speaker 2: failure that was corrected by the Supreme Court, but it
10:37
Speaker 2: was a failure that was not caught by the Fifth Circuit.
10:41
Speaker 2: An argument being that this is a Fifth Circuit that
10:44
Speaker 2: has also deeply political views, and those are deeply conservative
10:49
Speaker 2: political views that one might say align was a judge
10:54
Speaker 2: like Judge Chasmeric. So if there is a conflict between
10:57
Speaker 2: the Ninth Circuit and the Fifth Circuit, those are usually
11:00
Speaker 2: matters that are resolved by the Supreme Court. Now, it's
11:05
Speaker 2: not as if it would be new where there are
11:07
Speaker 2: circuits that are in disagreement and the Court doesn't take
11:10
Speaker 2: them up right away. Right, that's taken place before. But
11:14
Speaker 2: on an issue like abortion, which has so captivated this
11:19
Speaker 2: country politically and otherwise. There's stories about women who are struggling,
11:24
Speaker 2: who had miscarriages that needed to be managed and were
11:27
Speaker 2: near death, has really captured the public imagination, and so
11:31
Speaker 2: with that, it would not be surprising that the Supreme
11:34
Speaker 2: Court would grant cert to resolve this issue.
11:38
Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue
11:40
Speaker 1: this conversation with Georgetown Law professor Michelle Goodwin. We'll talk
11:44
Speaker 1: about the legal battles over those ballot measures getting on
11:47
Speaker 1: state ballots in November. I'm Jim Grosso and you're listening
11:52
Speaker 1: to Bloomberg. I've been talking to Professor Michelle Goodwin of
11:56
Speaker 1: Georgetown Law about the legal battles over abortion. Michelle, as
12:00
Speaker 1: far as the case is over MIFA pristone, the abortion
12:04
Speaker 1: pill part of the attack is that the FDA, according
12:08
Speaker 1: to the conservatives who are suing, hasn't done the right
12:12
Speaker 1: risk evaluation and mitigation strategies on MIFA pristone, so you know,
12:17
Speaker 1: the approval process, etc. As being attacked. Could the FDA
12:22
Speaker 1: go through the approval process again and deal with all
12:26
Speaker 1: these things that are being brought up.
12:28
Speaker 2: That's a really good question. And what your question surfaces
12:32
Speaker 2: is something that one saw was trap laws, so the
12:37
Speaker 2: targeted regulations of abortion providers when I was writing about
12:40
Speaker 2: these issues, you know, a decade ago, right as being
12:43
Speaker 2: the flash points that one needed to pay attention to
12:46
Speaker 2: because you know, being able to see what was coming
12:49
Speaker 2: up the pipeline. Well, this is much like that. You know,
12:52
Speaker 2: part of the point of trap laws was in fact
12:55
Speaker 2: an attempt to constrain access to reproductive healthcare such as abortion.
13:00
Speaker 2: But what it also did is that it meant that
13:03
Speaker 2: well established law and people who supported well established law,
13:07
Speaker 2: be it agencies advocacy organizations, had to begin spending their
13:12
Speaker 2: wheels and spending money in order to respond to these
13:17
Speaker 2: targeted regulations of abortion providers. And what one sees in
13:21
Speaker 2: the space of this is that even if there are failures,
13:24
Speaker 2: if it gets the FDA and organizations having to utilize
13:28
Speaker 2: resources and fight then then also then exhaust other ways
13:33
Speaker 2: in which they might promote healthcare or promote health advocacy
13:38
Speaker 2: within the reproductive landscape. So for the FDA to go
13:42
Speaker 2: back would be unheard of. I mean, typically that doesn't happen.
13:47
Speaker 2: It doesn't happen with a drug that's already been proven
13:49
Speaker 2: to be safe and effective. There aren't claims outside of
13:54
Speaker 2: groups that are anti abortion that mifipristone is unsafe, unaffective
14:02
Speaker 2: and that was rushed to the marketplace. There has been literally,
14:06
Speaker 2: i mean tens of thousands of people who it was
14:09
Speaker 2: smith a frist zone. There is no sort of collection
14:14
Speaker 2: of litigant who viewed it who said that they were
14:19
Speaker 2: you know, harmed by this and the fdation of known
14:22
Speaker 2: right that that just doesn't exist. And it's also very
14:25
Speaker 2: interesting too another point when you think about this that
14:28
Speaker 2: to the extent that there are those that are arguing
14:31
Speaker 2: that it is unsafe and effective for a lot of
14:33
Speaker 2: people who do not have uteruses, right, So, uh, which
14:37
Speaker 2: is just as a point, right, So, typically when there's
14:39
Speaker 2: you know, litigation, you're able to bring forward you know,
14:43
Speaker 2: here's this mass litigations was rushed to the marketplace. Look
14:45
Speaker 2: at all of these people who are harmed by it,
14:48
Speaker 2: whose futures were undermined by it, you know, were in healthcare.
14:53
Speaker 2: There is the willingness to accept the randomness of people
14:57
Speaker 2: who may be harmed in We protect against that at
15:00
Speaker 2: the federal level. For example, with vaccines. Right, there are
15:04
Speaker 2: shield laws that recognize that not all people will respond
15:07
Speaker 2: to vaccines as the vast majority will. Right, But we
15:11
Speaker 2: don't take vaccines off the marketplace like polio and whatnot
15:14
Speaker 2: because there is this very isolated, random person that is
15:19
Speaker 2: negatively impacted. And the same would apply to a drug
15:23
Speaker 2: like mesapristone or any other drug. We don't take them
15:25
Speaker 2: off the marketplace because there is that sort of random,
15:29
Speaker 2: isolated one person who is negatively impacted by it.
15:34
Speaker 1: Let's turn to be the abortion rights ballot measures. So
15:38
Speaker 1: I counted definitely on the ballot abortion rights measures in
15:42
Speaker 1: five states Colorado, Florida, Maryland, Nevada, and South Dakota. And
15:47
Speaker 1: signatures have been submitted in awaiting approval in Arizona, Montana, Missouri,
15:52
Speaker 1: and Nebraska. And there are disputes over these ballot measures
15:56
Speaker 1: in some states. In Arizona, there's a dispute over how
16:00
Speaker 1: to describe the measure. A Republican led legislative committee wants
16:04
Speaker 1: to describe a fetus as an unborn human being, and
16:08
Speaker 1: that's being opposed by abortion rights groups. This also happened
16:12
Speaker 1: in Florida. It's an attempt to use language to sort
16:16
Speaker 1: of prejudice or confuse the abortion issue.
16:20
Speaker 2: Well, we've seen that contestation in Ohio as well. We
16:26
Speaker 2: saw aspects of that in Michigan. So there is an
16:30
Speaker 2: argument that there has been manipulation and coercion, and that
16:35
Speaker 2: is to say that voters should be able to determine
16:38
Speaker 2: how they feel about these issues based on what happens
16:41
Speaker 2: to be basic scientific, factual information and not be misled
16:47
Speaker 2: by the narratives that have been put forward, including ones
16:52
Speaker 2: of saying that fetuses are unborn children. In various other ways.
16:57
Speaker 2: In Ohio there were in Michigan, there are a number
16:59
Speaker 2: of other ways in which there were state officials who
17:03
Speaker 2: sought to undermine the clarity of what was actually on
17:08
Speaker 2: the ballid initiative. And I think that there is a
17:11
Speaker 2: broader issue to consider in that regard, and that is
17:16
Speaker 2: that despite the fact that the Supreme Court and the
17:20
Speaker 2: Dobbs decision said that these would be matters that would
17:23
Speaker 2: be left to states in their voters. It's not There's
17:26
Speaker 2: been a deep level of political coercion in trying to
17:29
Speaker 2: limit voters access to be able to engage in the
17:34
Speaker 2: political process in these valid initiatives. So when these valid
17:37
Speaker 2: initiatives are not just simple, clean, clear scientific health information,
17:42
Speaker 2: but instead are saddled with innuento, it strikes against what
17:49
Speaker 2: was the principle articulated and Dobbs that voters get to
17:53
Speaker 2: decide these are state level matters, and in some ways
17:57
Speaker 2: it ties a voter's hands behind her back, where then
18:02
Speaker 2: she has to study and look at the ballot initiatives
18:06
Speaker 2: more closely, lug up information to make sure that what
18:11
Speaker 2: it is that's being voted on, you know, follows the
18:14
Speaker 2: values and interest that she has, no matter which way
18:17
Speaker 2: he or she you know, or they happen to be voting.
18:20
Speaker 2: It's become far more complicated. And of course in Ohio
18:23
Speaker 2: what we saw were efforts to even change the way
18:26
Speaker 2: in which ballid initiatives go forward, such as increasing the
18:31
Speaker 2: percentage that would be necessary in order for a ballot
18:35
Speaker 2: initiative to be able to prevail in all of this.
18:38
Speaker 2: Around the matter with regard to abortion.
18:40
Speaker 1: A similar thing is happening in Montana, where the Secretary
18:44
Speaker 1: of State was sued over changes she made to the
18:48
Speaker 1: rules about whose signatures can be accepted to support ballot measures,
18:53
Speaker 1: and last Tuesday, the Montana Supreme Court basically overruled her.
18:57
Speaker 1: And in Arkansas, the Secretary of State reject to the
19:00
Speaker 1: signatures that were submitted for a ballot measure and that's
19:03
Speaker 1: headed to court. It seems like the greatest challenge might
19:07
Speaker 1: just be in getting the abortion rights measures on the
19:10
Speaker 1: ballot when they're being undermined by election officials.
19:15
Speaker 2: That's right, which also says something very important about where
19:19
Speaker 2: Americans have to pay attention, and I think Americans are
19:23
Speaker 2: beginning to recognize how important it is the roles election
19:27
Speaker 2: officials have in state government. The anti abortion movement has
19:33
Speaker 2: been quite thoughtful and sophisticated with how they've chosen to
19:39
Speaker 2: address the reshaping of American discourse, American law, and the
19:44
Speaker 2: rule of law with regard to abortion and also other issues.
19:47
Speaker 2: That is to say that there's been very close attention
19:51
Speaker 2: paid to school boards, There's been very close attention paid
19:54
Speaker 2: to state's attorney generals, to secretaries of states, and also
19:59
Speaker 2: then to election officials within states, and then also you know,
20:04
Speaker 2: local city councils and whatnot. Basically, no stone unturned from
20:10
Speaker 2: a movement that seeks to solidify complete resistance to abortion rights,
20:18
Speaker 2: and complete resistance that's not always in objective and fair ways,
20:23
Speaker 2: complete resistance in ways that may also be undermining, which
20:28
Speaker 2: has been what some of these state supreme courts have
20:32
Speaker 2: responded to, seeing the lack of legitimacy in the way
20:36
Speaker 2: in which there have been efforts to undermine voters being
20:41
Speaker 2: able to have a clear and clean access not only
20:46
Speaker 2: to casting a vote, but to know what they are
20:48
Speaker 2: casting a vote about.
20:50
Speaker 1: I take it it's because all of these abortion related measures,
20:55
Speaker 1: what it was, seven ballid questions in the last two years,
20:59
Speaker 1: they pass, So it's a fear. I take it that
21:03
Speaker 1: if the voters actually confront the issue, they'll approve abortion rights.
21:09
Speaker 2: That is the real concern, and consistently what one has
21:15
Speaker 2: seen in these valid initiatives, and I think that's why
21:18
Speaker 2: this is so alarming in the efforts to try to
21:21
Speaker 2: undermine this political effort, is because even in states where
21:27
Speaker 2: there are conservative legislatures, there has been the rejection of
21:34
Speaker 2: valid initiatives that would instantiate let's say, personhood in the
21:38
Speaker 2: state's constitution in order to prevent people in that states
21:42
Speaker 2: from ever being able to have abortion access. We saw
21:45
Speaker 2: that in the state of Kentucky. Alternatively, what we've seen
21:49
Speaker 2: is that in states that have blue legislatures or you know,
21:54
Speaker 2: democratic governors, or ones where the legislature is a bit mixed,
21:58
Speaker 2: such in the state of Michigan, for example, he's seen
22:01
Speaker 2: very successful valid initiative and in Ohio successful balid initiatives
22:07
Speaker 2: that defend the constitutional right to be able to terminate
22:11
Speaker 2: a pregnancy. You know, there are a couple things that
22:14
Speaker 2: one can see in the space of all of it.
22:17
Speaker 2: When the Supreme Court overturned Roe v. Wade and Planned
22:21
Speaker 2: Parenthood be casey, they did so despite the fact that
22:26
Speaker 2: consistently was polling. Most Americans support abortion rights in the
22:32
Speaker 2: United States, they support contraception contraceptive access, and since the
22:37
Speaker 2: DBS decision, that support has intensified, particularly given that Americans
22:44
Speaker 2: have seen how draconian the enforcement of anti abortion measures
22:50
Speaker 2: happened to be, how cool they happen to be, such
22:54
Speaker 2: that even in cases where women are near death on
22:58
Speaker 2: death's door, there's basically been the concern that they are
23:01
Speaker 2: not being able to receive the medical care in those
23:03
Speaker 2: states that they need. So we see that in Idaho
23:06
Speaker 2: where there have been doctors that have helicoptered women out
23:09
Speaker 2: of the state in order to get the health care
23:11
Speaker 2: that they need. In the state of Texas, even after
23:15
Speaker 2: Kate Cox and her doctor were successful in getting a
23:17
Speaker 2: district court judge to agree that the state's exception should
23:21
Speaker 2: apply to Kate Cox such that she should be able
23:23
Speaker 2: to get an abortion in the state of Texas, we
23:26
Speaker 2: have both the state's attorney general and the state Supreme
23:29
Speaker 2: Court saying, well, that doesn't apply. Kate Cox isn't the
23:33
Speaker 2: ideal person who would qualify for the exception. He had
23:39
Speaker 2: the state's attorney general going so far as the contact
23:42
Speaker 2: doctors and the hospitals threatening them with punishment civil, criminal,
23:47
Speaker 2: et cetera if they were to go forward and provide
23:50
Speaker 2: the relief that Kate Cox needed, which a lower court
23:54
Speaker 2: judge said that she deserves to have.
23:57
Speaker 1: The litigation will continue and continue, and we'll see whether
24:01
Speaker 1: abortion rights measures can get on the ballot in some
24:05
Speaker 1: of the states that we talked about, Arizona, Arkansas, Montana, Missouri,
24:10
Speaker 1: and Nebraska so far. Thanks so much for being on
24:13
Speaker 1: the show, Michelle. That's Professor Michelle Goodwin of Georgetown Law.
24:18
Speaker 1: Coming up next on The Bloomberg Lawn Show. We're down
24:21
Speaker 1: to the finish line in the race for President Biden
24:23
Speaker 1: to catch former President Trump in the number of judicial appointments.
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Speaker 1: I'm June Grosso and you're listening to Bloomberg. In one
24:33
Speaker 1: term as president, Donald Trump appointed two hundred and thirty
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Speaker 1: four judges, well below the totals of recent two term presidents,
24:40
Speaker 1: including Barack Obama, George W. Bush, and Bill Clinton. And
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Speaker 1: as far as appellate courts, Trump flipped the balance of
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Speaker 1: several appeals courts from a majority of Democratic appointees to
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Speaker 1: a majority of Republican appointees. President Joe Biden is in
24:56
Speaker 1: a race to equal or beat the number of judges
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Speaker 1: up point Trump. The Senate has confirmed two hundred and
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Speaker 1: two judges nominated by Biden, and it's the home stretch.
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Speaker 1: Joining me is an expert in the federal judiciary, Carl
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Speaker 1: to Bias, a professor at the University of Richmond Law School.
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Speaker 1: Carl Biden has appointed forty three judges to the appellate courts.
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Speaker 1: How does that compare to Trump's number?
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Speaker 4: Well, Trump ended up with fifty four, and if you
25:27
Speaker 4: remember back in twenty fifteen sixteen, the GOP majority in
25:32
Speaker 4: the Senate only confirmed two of Obama's nominees in those
25:37
Speaker 4: two years, and so there were many vacancies available for Trump,
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Speaker 4: and he filled them quite quickly once he was elected,
25:48
Speaker 4: and so that explains it. There just haven't been that
25:51
Speaker 4: many vacancies available. But there are more nominees too. There
25:57
Speaker 4: four or five who are waiting, mostly on the floor.
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Speaker 4: One may have at hearing this week, and so I
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Speaker 4: expect that Biden will come close to Trump's fifty four,
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Speaker 4: but maybe not many more than that, and probably lucky
26:14
Speaker 4: to get to that point because they're about six or
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Speaker 4: seven vacancies now. But I don't foresee very many people
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Speaker 4: taking senior status, for example, until after the election, if
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Speaker 4: at all, and so there may not be opportunities coming up.
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Speaker 4: And of course there's a very truncated Senate schedule moving forward.
26:34
Speaker 4: They go out this week and then stay out till
26:37
Speaker 4: week after Labor Day, and then come and work three
26:40
Speaker 4: weeks and then go to campaign until the elections, and
26:44
Speaker 4: then there's a lame duck starting on November twelve, I believe.
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Speaker 1: So you think during the lame duck they can get
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Speaker 1: some things done.
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Speaker 4: Absolutely, I mean I think they intend to have hearings
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Speaker 4: and to move people out of committee to the floor
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Speaker 4: and have and confirmation votes all the way till the
27:03
Speaker 4: holidays in late December. That's my understanding, and Thanksgiving is
27:09
Speaker 4: the only break they'll have then. And so there are
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Speaker 4: a number of weeks there, and there are many people
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Speaker 4: on the floor right now waiting for culture and confirmation votes,
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Speaker 4: a dozen or more, and there will be more. There's
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Speaker 4: hearing this Wednesday, So they're determined to move them. They
27:28
Speaker 4: just won't have a lot of working days when they
27:31
Speaker 4: get back from the break for August.
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Speaker 1: Bloomberg Law Nowsis shows that more than half of Biden's
27:38
Speaker 1: federal appellate Court appointments so far we're in their forties
27:43
Speaker 1: or younger when they join the bench. Is this about
27:46
Speaker 1: cementing your legacy versus having more experienced judges on the bench.
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Speaker 4: Yes, And I think presidents of both parties have done
27:58
Speaker 4: that really for a long time now, both Democratic and Republican.
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Speaker 4: If you think back to Bush or even to Reagan,
28:08
Speaker 4: Clinton is I think the person who thought that it
28:11
Speaker 4: was a capstone to your career to appoint someone to
28:14
Speaker 4: the federal bench. But I think that presidents in this
28:19
Speaker 4: century have been much more inclined to move to younger
28:23
Speaker 4: and younger people. Trump certainly did that. I think he
28:26
Speaker 4: had people in their thirties on the appeals courts, and Biden, though,
28:31
Speaker 4: has followed that in many people in their forties and
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Speaker 4: some in their fifties, but hardly any older than that.
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Speaker 1: Former judge Paul Watford, who was forty four when he
28:43
Speaker 1: joined the Ninth Circuit, said, I don't see anything good
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Speaker 1: that comes from nominating people to the bench at a
28:49
Speaker 1: very young age. To be frank with you, also, several
28:53
Speaker 1: judges who were nominated when they were young have stepped
28:56
Speaker 1: down to join law firms, and so they don't on
29:00
Speaker 1: the bench. As long as as you might think.
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Speaker 4: That's true, I mean that has happened, and I'm thinking
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Speaker 4: of something like Greg Costa on the Fifth Circuit Watford,
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Speaker 4: and that's unfortunate, but they certainly would be paid a
29:16
Speaker 4: lot more and might like the work more than for example,
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Speaker 4: Costa dissenting on the Fifth Circuit, and not much opportunity
29:27
Speaker 4: to change the composition of that court because so many
29:31
Speaker 4: geologically conservative people were nominated and confirmed by Trump. So
29:37
Speaker 4: it's to be expected, I suppose, but it's unfortunate and
29:41
Speaker 4: so you may see that trend as well. I think
29:44
Speaker 4: there have been a number of district judges too. I'm
29:46
Speaker 4: thinking one in New Jersey who only stayed on six
29:50
Speaker 4: years just because he thought that there were better opportunities
29:54
Speaker 4: for him in the private sector.
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Speaker 1: It's also been pointed out that when you're younger as
30:00
Speaker 1: a trial judge district court judge, and you don't have
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Speaker 1: that much experience, it can be more obvious than if
30:07
Speaker 1: you're on a pellet bench where you're sitting with at
30:10
Speaker 1: least two other people. And I can think recently of
30:13
Speaker 1: Judge Eileen Cannon in Florida, a Trump appointee who was
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Speaker 1: in her late thirties, and her handling of the classified
30:24
Speaker 1: documents case has drawn all kinds of criticism.
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Speaker 4: Yes, I think it's difficult and it's unfortunate that her
30:32
Speaker 4: colleagues didn't help her, and I think she was pretty
30:35
Speaker 4: isolated in Fort Pierce, you know, and even the chief
30:38
Speaker 4: judge apparently suggested that this might be a tough case
30:43
Speaker 4: for her. To handle. But it's different, you know than
30:46
Speaker 4: say in Miami, where you have twenty or twenty five judges,
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Speaker 4: and I think there's more consultation, there's more collegiality, there
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Speaker 4: are more people to talk with and all of that,
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Speaker 4: and so I think it hard, and you know, you
31:01
Speaker 4: get a big case load. I mean, remember that Maldonado
31:04
Speaker 4: who was on the Northern distri of Illinois. Three judges
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Speaker 4: retired from that court and they dumped three hundred cases
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Speaker 4: on her. That's tough to have to handle that kind
31:15
Speaker 4: of docket, but that often happened. I talked to some judges,
31:19
Speaker 4: you know, who are like the most recent appointees in
31:23
Speaker 4: various districts, and they get the least desirable cases sometimes,
31:28
Speaker 4: and so it's tricky.
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Speaker 1: Also, another younger judge was Joshua Kindridge who stepped down
31:35
Speaker 1: from the Alaska district because of that sex scandal. So
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Speaker 1: now that leaves just one judge in Alaska right now?
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Speaker 4: Are they going to be able to fill those The
31:47
Speaker 4: saving grace there is the senior judges. I believe there
31:50
Speaker 4: are three or four working with the one active judge
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Speaker 4: who also is a chief judge. So I think the
31:59
Speaker 4: Senators need to work together, and I hope they're doing that,
32:03
Speaker 4: but certainly Murkowski has been pretty vocal that this needs
32:07
Speaker 4: to happen. But whether it'll happen soon, I'm not positive.
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Speaker 4: I know the White House would be happy to work
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Speaker 4: with them and find some fine people to help the courts.
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Speaker 4: But it's tough though the seniors. I think there are
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Speaker 4: three or four very experienced and well respected senior judges,
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Speaker 4: but I think two of them are not eighty in Alaska,
32:29
Speaker 4: so that makes it tough as well.
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Speaker 1: Donald Trump really appointed a lot of ideologues, you know,
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Speaker 1: who were blatantly conservative. Has Biden done the same thing
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Speaker 1: with his judges. Has there been a focus on the
32:43
Speaker 1: ideological outlook more than there was years ago.
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Speaker 4: I don't think so. I don't think as much. I mean,
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Speaker 4: I think what his goal has been is diversity, but
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Speaker 4: principally experiential diversity, which talked about that before. Many more
33:03
Speaker 4: people who did criminal defense work than prosecutors, and the
33:08
Speaker 4: tradition was, as you know, forever that most of the
33:12
Speaker 4: people were former prosecutors in the federal or state systems
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Speaker 4: or from big law firms, and Biden has changed that.
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Speaker 4: More people who've done plaint of side work, more people
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Speaker 4: who do employee side labor work, more legal aid lawyers,
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Speaker 4: more civil rights lawyers, And I think that's the hallmark
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Speaker 4: of his appointees, as well as ethnic, gender, and sexual
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Speaker 4: orientation diversity. But I think partly the administration may believe
33:42
Speaker 4: that a number of people who do that type of
33:46
Speaker 4: work have different ideological views than say, some Trump appointees.
33:51
Speaker 4: And don't forget the Fifth Circuit has been reversed a
33:56
Speaker 4: number of times by the Supreme Court in the most
33:59
Speaker 4: recent terms just because some of their opinions are just
34:03
Speaker 4: too far even for the Supreme Court. I think they
34:06
Speaker 4: didn't have a very good record this year. And you know,
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Speaker 4: the abortion pill case is a good example.
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Speaker 1: Did you have any idea how Harris might approach this
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Speaker 1: similar to Biden different? What do you think?
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Speaker 4: Well, I think she will take on the same kind
34:23
Speaker 4: of emphasis that Biden has pursued experiential diversity and other
34:28
Speaker 4: forms of diversity. And in her time on the Judiciary Committee,
34:33
Speaker 4: she was a quite active member and a very strong member,
34:37
Speaker 4: and you might remember her questioning of Justice Kavanaugh at
34:43
Speaker 4: his hearing was very vigorous and rigorous and tough. And
34:47
Speaker 4: so that was my general sense of her as a
34:51
Speaker 4: tough former prosecutor on the Judiciary Committee, asking hard questions
34:55
Speaker 4: of especially Trump nominee, because she served on that committee
35:00
Speaker 4: during I think his whole tenure, and so I think
35:05
Speaker 4: she really understands that, and she understands the federal courts,
35:09
Speaker 4: and so that's all very valuable, and I think she'll
35:13
Speaker 4: be good. And I think a number of people in
35:16
Speaker 4: the White House are still there working on judicial selection,
35:20
Speaker 4: and so if she's elected, she I think would probably
35:24
Speaker 4: call on a number of those same people who have
35:27
Speaker 4: done excellent work so far.
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Speaker 1: Of course, if Trump wins, we already know what kinds
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Speaker 1: of judges he'll be appointing. Thanks so much, Carl. That's
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Speaker 1: Professor Carl Tobias of the University of Richmond Law School.
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Speaker 1: And that's it for this edition of the Bloomberg Law Podcast.
35:44
Speaker 1: Remember you can always get the latest legal news by
35:47
Speaker 1: subscribing and listening to the show on Apple Podcasts, Spotify,
35:51
Speaker 1: and at Bloomberg dot com, Slash podcast, Slash Law. I'm
35:55
Speaker 1: June Grosso and this is Bloomberg