Latest / Bloomberg Law / Judges Block Trump Agenda Despite SCOTUS Ruling

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Judges Block Trump Agenda Despite SCOTUS Ruling · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: At the end of June, President Trump celebrated the Supreme
0:12
Speaker 2: Court's decision limiting the ability of federal judges to issue
0:16
Speaker 2: nationwide injunctions.
0:17
Speaker 3: Thanks to this decision, we can now promptly file to
0:22
Speaker 3: proceed with numerous policies that have been wrongly enjoined on
0:25
Speaker 3: a nationwide basis. And some of the cases we're talking
0:29
Speaker 3: about would be ending birthright citizenship, which now comes to the.
0:34
Speaker 2: Fore but a federal judge stop that from happening. And
0:39
Speaker 2: though it's clear the decision was a win for the
0:41
Speaker 2: Trump administration, how big a win has yet to be determined.
0:45
Speaker 2: In the last few weeks, federal judges have been using
0:49
Speaker 2: the alternative options offered by the justices to block the
0:53
Speaker 2: Trump agenda nationwide. For example, judges have blocked the enforcement
0:58
Speaker 2: of Trump's birthright CIS citizenship order, restored public health data
1:03
Speaker 2: to government websites, and struck down Trump's ban on asylum claims.
1:08
Speaker 2: Joining me to discuss just how much that Supreme Court
1:11
Speaker 2: decision will benefit the Trump administration is Carrie Kolonisi, a
1:16
Speaker 2: professor at the University of Pennsylvania. Carrie, Law School and
1:19
Speaker 2: director of the Penn Program on Regulation. Carrie, what did
1:23
Speaker 2: the majority suggest in the KASA decision as alternative paths
1:28
Speaker 2: to getting nationwide injunctions?
1:31
Speaker 1: Well, first of all, you still can get nationwide or
1:34
Speaker 1: universal injunctions. I mean that people use different language but
1:38
Speaker 1: basically the same thing, and you still under KASA can't
1:42
Speaker 1: get it when just an injunction confined to the parties
1:49
Speaker 1: would not provide the parties with complete relief. So we
1:53
Speaker 1: might see, and in fact, the court suggests even that
1:58
Speaker 1: the states that were challenging the Birthright Citizenship Order could
2:04
Speaker 1: well have a basis for getting a nationwide injunction because
2:10
Speaker 1: they need it for complete relief. People move from one
2:14
Speaker 1: part of the country to the other, from one state
2:16
Speaker 1: to the other states, and without some national uniformity in
2:23
Speaker 1: this litigation, states will not know whether they should be
2:28
Speaker 1: giving certain people federally funded benefits that apply only for citizens.
2:33
Speaker 1: For example, you know, they'll need to probably redo a
2:37
Speaker 1: lot of their administrative paperwork or hire more workers to
2:40
Speaker 1: handle applications.
2:42
Speaker 4: It'd be a.
2:43
Speaker 1: Quagmire for a lot of states. So, first of all,
2:46
Speaker 1: that's one key thing is that Trump BECAUSA doesn't say,
2:49
Speaker 1: like absolutely never a nationwide injunction, but probably you know,
2:54
Speaker 1: most cases that won't be possible. But in this case,
2:58
Speaker 1: with birthright citizenship and the states that are suing, it
3:02
Speaker 1: might be obtainable because anything short of that would not
3:06
Speaker 1: give the litigans complete relief. So that's one thing to know.
3:10
Speaker 1: But then the court, as you suggest, also says, gee,
3:14
Speaker 1: there can be other ways of getting what is essentially
3:19
Speaker 1: nationwide injunctive relief. We wouldn't call it a nationwide injunction,
3:23
Speaker 1: but it's essentially going to be the same thing, and
3:26
Speaker 1: that would be through certifying a class action. So litigants
3:32
Speaker 1: come forward all the time, We have the class actions
3:34
Speaker 1: all the time, where the court is making a decision
3:38
Speaker 1: that applies to anybody within a certified class nationwide, and
3:43
Speaker 1: in this birthright citizenship context, that would seem also to
3:47
Speaker 1: easily apply. There are some standards for what it takes
3:50
Speaker 1: to qualify for a class, but once that's met, then
3:54
Speaker 1: you could get nationwide relief. And a third option here
3:58
Speaker 1: is something under the Administrative Procedure Act, which is a
4:02
Speaker 1: statute that applies to any of the federal government agencies
4:07
Speaker 1: actions and there's a provision in the APA as it's
4:11
Speaker 1: known that allows courts to set aside unlawful actions. It's
4:17
Speaker 1: not just even allows it, but it says the court
4:20
Speaker 1: shall set aside unlawful actions, and that's a possibility. The
4:24
Speaker 1: Court in the cost case doesn't say much about this
4:29
Speaker 1: set aside option under the Administrative Procedure Act, but it
4:32
Speaker 1: does acknowledge in a footnote that it's not saying that
4:35
Speaker 1: it can't apply, and in fact, in various other contexts
4:40
Speaker 1: and Supreme Court oral arguments and the like, for example,
4:44
Speaker 1: and actually a longstanding tradition since at least the nineteen sixties,
4:50
Speaker 1: the federal courts have used this set aside language to
4:53
Speaker 1: hold unlawful a government policy, regulation, guidance that applies nationwide.
4:59
Speaker 1: If it's not lawful, it's hard to say how a
5:02
Speaker 1: government policy could still apply to folks who just don't
5:08
Speaker 1: happen to have the ability to go into court to
5:10
Speaker 1: challenge it. If it's unlawful, it's unlawful. And so anyway,
5:14
Speaker 1: there's a real possibility that both in the birthright citizenship
5:19
Speaker 1: case and in a lot of other cases, litigants are
5:22
Speaker 1: going to be able to still get what is essentially
5:25
Speaker 1: nationwide relief. Shutting down unlawful policies or at least potentially
5:30
Speaker 1: unlawful policies on a preliminary basis.
5:33
Speaker 2: On a national level, the New Hampshire Judge and the
5:36
Speaker 2: birthright Citizenship case certified a class action lawsuit on behalf
5:41
Speaker 2: of US born children or future children whose automatic citizenship
5:47
Speaker 2: could be jeopardized by President Trump's executive order, so wherever
5:51
Speaker 2: those children may be across the country, So in effect
5:55
Speaker 2: it's a nationwide injunction. Was he working within the confines
5:59
Speaker 2: of the S'preme Court's decision or was this sort of
6:03
Speaker 2: a workaround.
6:04
Speaker 1: Well, the New Hampshire Judge just recently says that, you know,
6:08
Speaker 1: I'm going to recognize, at least on a putative basis,
6:12
Speaker 1: that there's a class here. It meets all the requirements
6:15
Speaker 1: for a class action. Rule twenty three are into the
6:18
Speaker 1: Federal Rules of Civil Procedure outline for criteria that have
6:23
Speaker 1: to be met, and it certainly makes a lot of
6:27
Speaker 1: sense that those would be met. In the birthright citizenship context.
6:30
Speaker 1: You need a lot of people that would be affected
6:33
Speaker 1: such that the courts just wouldn't be able to bring,
6:36
Speaker 1: you know, maybe two or three or four or five
6:38
Speaker 1: lawsuits and bring them together and try them together. Maybe
6:41
Speaker 1: they were talking about thousands and in this case tens
6:44
Speaker 1: of thousands maybe right away, perhaps possible lawsuits. So there's
6:49
Speaker 1: a numerosity, there's a common factual and legal predicate that.
6:55
Speaker 4: Has to be met.
6:56
Speaker 1: And again it seems like this is pretty much the
7:00
Speaker 1: everybody is going to have the same criteria. Either were
7:03
Speaker 1: born in the United States or you weren't. And third,
7:07
Speaker 1: there really is an ability to effectively pursue relief for
7:12
Speaker 1: everybody by just trying a few people, and that there's
7:16
Speaker 1: fourth effective representation for the full class. And the judge
7:20
Speaker 1: in New Hampshire says, I think we've got that. I
7:22
Speaker 1: think we've got a class action here. So in the
7:25
Speaker 1: birthright citizenship case, that seems to be an avenue. And
7:29
Speaker 1: we still may also see in some of the state
7:32
Speaker 1: challengers coming forward, and a judge is saying we need
7:35
Speaker 1: to put in place a nationwide injunction to provide complete relief.
7:39
Speaker 1: So that's also still out there.
7:41
Speaker 2: A Trump administration spokesperson said the judge was abusing the
7:45
Speaker 2: class certification process. What do you think their arguments will
7:49
Speaker 2: be against the certification of this class when they appeal.
7:53
Speaker 1: Well, I think It's one thing to attack it from
7:55
Speaker 1: the podium or on social media and another in a
7:58
Speaker 1: court of law. You know, they've put forward some kind
8:02
Speaker 1: of contrived argument, but it seems in this particular context
8:06
Speaker 1: pretty clear case that a class action would apply. That's
8:10
Speaker 1: I think why the Supreme Court in the Acosta case,
8:13
Speaker 1: you know, spends a good bit of time talking about
8:15
Speaker 1: the class action. I think this made a good vehicle
8:19
Speaker 1: for the Court to pamp down on nationwide injunctions because
8:23
Speaker 1: it seemed like, in my view, and the Court's recognizing
8:27
Speaker 1: that this would have been the proper way of going
8:30
Speaker 1: about preceding here in a class action format. There may
8:34
Speaker 1: be other situations where it might be stretching it, and
8:38
Speaker 1: we'll have to see. I mean, I do know that
8:39
Speaker 1: the Supreme Court has been a little bit reining in
8:42
Speaker 1: even on how frequently lower court judges are certifying classes.
8:47
Speaker 1: But the factual and legal issues here really are the same.
8:51
Speaker 1: You know, you have parents that meet the criteria in
8:54
Speaker 1: the Executive Order and a child that's born in the
8:58
Speaker 1: United States. That's paradigmatic, and that's not a whole lot
9:02
Speaker 1: that's going to vary from one person to the next.
9:05
Speaker 2: In his concurring opinion, Justice Brett Kavanaugh mentioned the Administrative
9:10
Speaker 2: Procedure Act as providing the equivalent of a universal injunction,
9:16
Speaker 2: and so a federal judge in New York cited the
9:18
Speaker 2: APA when he set aside the administration's decisions to end
9:22
Speaker 2: legal protections for Haitian migrants. A Washington judge did the
9:26
Speaker 2: same in the case reviving asylum. Would these cases normally
9:31
Speaker 2: have been brought under the APA or is this happening
9:35
Speaker 2: because of the Supreme Court's cost A decision.
9:38
Speaker 1: There's an important difference in what we can say about
9:42
Speaker 1: whether these are being brought under the APA, whether the
9:46
Speaker 1: relief comes from and is authorized by the APA. So
9:51
Speaker 1: it may be that, you know, these are being brought
9:53
Speaker 1: under immigration statutes, or they're being brought, you know, in
9:58
Speaker 1: the birthright citizenship under a of constitutional law, the fourteenth Amendment.
10:03
Speaker 1: But these all are revolving around the questions of what
10:06
Speaker 1: the relief is that can be provided. And you're right,
10:10
Speaker 1: you're exactly right to say that. You know, these judges
10:14
Speaker 1: now are saying, well, there's relief that can be granted,
10:17
Speaker 1: not through a preliminary injunction, which is grounded in the
10:22
Speaker 1: law of equity. That goes back to even the founding
10:26
Speaker 1: of our country and to some of the early statutes
10:30
Speaker 1: giving courts authority, like the Judiciary Act of seventeen eighty nine.
10:35
Speaker 1: That's what the Costa Court said, Well, no, that doesn't
10:39
Speaker 1: give you the ability. Now they're saying, well, we have
10:42
Speaker 1: another pathway, and I think you're right to say that
10:46
Speaker 1: this is maybe a workaround. One might look at it
10:50
Speaker 1: that way, but it's also just another alternative pathway, the
10:54
Speaker 1: same way that you know, we all know that if
10:58
Speaker 1: someone take a completly different context, if somebody is accused
11:02
Speaker 1: of a crime and is found to be, you know,
11:06
Speaker 1: not guilty, it just means that the prosecutors haven't met
11:10
Speaker 1: the burden of proof beyond a reasonable doubt that the
11:13
Speaker 1: person's guilty. It doesn't name that you can't then proceed
11:18
Speaker 1: with civil actions against that person. In law, we often
11:22
Speaker 1: have these multiple pathways, and as long as you have
11:27
Speaker 1: one that's met, well, you know, maybe you don't need
11:30
Speaker 1: to use the others. So, yes, the federal courts haven't
11:35
Speaker 1: always invoked the Administrative Procedure Act, perhaps in the same
11:41
Speaker 1: way that these judges are now right after Costa. But
11:45
Speaker 1: you know, they and the litigants who are making arguments
11:48
Speaker 1: before them are just doing what lawyers and judges do
11:51
Speaker 1: all the time. If you know one pathway or one
11:54
Speaker 1: possible means of getting some relief is not permissible, well
12:00
Speaker 1: then go with what is permissible.
12:02
Speaker 2: Coming up the drawbacks to using the APA, this is
12:05
Speaker 2: bloomberg in a lot of a Supreme Court's decision at
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Speaker 2: the end of June limiting the ability of federal judges
12:13
Speaker 2: to issue nationwide injunctions. Some judges have been blocking the
12:17
Speaker 2: Trump agenda by using the alternative pass suggested by the justices.
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Speaker 2: I've been talking to Professor Carrie Coliniesi of the University
12:24
Speaker 2: of Pennsylvania Carrie Law School. Are there drawbacks to using
12:28
Speaker 2: the Administrative Procedure Act Because it has to be used
12:33
Speaker 2: to vacate an agency's action, so it can't be used
12:36
Speaker 2: to attack an executive order.
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Speaker 1: It's a weaker tool. Since a Supreme Court decision in
12:42
Speaker 1: nineteen ninety two Franklin versus Massachusetts, it's generally thought that
12:47
Speaker 1: the Administrative Procedure Act doesn't really apply to the president.
12:52
Speaker 1: You know that we can probably debate how Franklin Vief
12:56
Speaker 1: Massachusetts is, But yeah, I think that you would ordinately
13:00
Speaker 1: not see these apa set asides against anything other than agencies.
13:05
Speaker 1: But you know, executive orders themselves rarely are self implementing,
13:13
Speaker 1: so all that executive orders, almost all executive orders are
13:17
Speaker 1: just that they're ordering administrative agencies at the federal level
13:22
Speaker 1: to do something, and when they do it, they're subject
13:27
Speaker 1: to the Administrative Procedure Act. So you know, I think
13:30
Speaker 1: it's still quite a feasible pathway to address something that's
13:34
Speaker 1: objectionable about an executive order, just you have to wait
13:37
Speaker 1: until some agency actually follows that executive order for it
13:41
Speaker 1: to apply.
13:42
Speaker 2: Some government lawyers in cases are asking judges to pair
13:46
Speaker 2: back their injunctions because of the Supreme Court's ruling. Is
13:50
Speaker 2: that likely to happen?
13:52
Speaker 1: Well, I mean, I think it's probably likely that we'll
13:57
Speaker 1: have to have a reassessment of some of these nationwide injunctions,
14:02
Speaker 1: but that reassessment is in many cases likely still to
14:09
Speaker 1: result in what is effectively some nationwide relief when any
14:14
Speaker 1: of the three available still available pathways exist. One is
14:20
Speaker 1: an equitable nationwide injunction, when complete relief it can only
14:25
Speaker 1: be provided that way. Two is through a class action,
14:29
Speaker 1: and three is through the administrative Procedure Act, and it's
14:34
Speaker 1: set aside provisions in section seven six.
14:38
Speaker 2: Considering all this that, as far as we've seen, a
14:41
Speaker 2: lot of plaintiffs are succeeding with these alternative paths. How
14:46
Speaker 2: much do you think the Supreme Court ruling is really
14:49
Speaker 2: going to help the Trump administration? How big a win
14:52
Speaker 2: was this for the Trump administration?
14:54
Speaker 1: Well, it's certainly not as big a win as they've
14:57
Speaker 1: laid out, you know, and claimed for themselves. That's hardly
15:01
Speaker 1: the first time, right, they are quite frankly other politicians
15:05
Speaker 1: right exaggerate what they have obtained. You know, I think
15:09
Speaker 1: in the birthright citizenship case it's probably not likely to
15:14
Speaker 1: be much of a win at all. And then the
15:17
Speaker 1: question is, will it, maybe at the margin, make it
15:21
Speaker 1: more difficult to obtain what is some kind of nationwide
15:26
Speaker 1: relief in other cases? And probably that's true because complete
15:33
Speaker 1: relief might not always be evident. It might be harder
15:38
Speaker 1: to meet the class certification standards, especially if the Supreme
15:43
Speaker 1: Court wants to scrutinize those even more rigorously. And this
15:48
Speaker 1: set aside will only apply and you know in some
15:52
Speaker 1: proportion of the cases where there might want to be
15:55
Speaker 1: some nationwide relief and the Cost Court. By the way,
15:59
Speaker 1: also with respect to the set aside under the Administrative
16:03
Speaker 1: Procedure Act, it says we're not deciding anything on that,
16:07
Speaker 1: so expect more litigation about really the extent to which
16:13
Speaker 1: courts can must rely on the set aside provision in
16:19
Speaker 1: five USC. Section seven oh six of the Administrative Procedure Act.
16:24
Speaker 2: Yeah, that was my next question. How fast do you
16:26
Speaker 2: think this is going to return to the Supreme Court?
16:29
Speaker 1: Well, Justice Kavanaugh seemed to think in his separate opinion
16:33
Speaker 1: in the cost Of case that you know, the Supreme
16:36
Speaker 1: Court is going to be at the ready to resolve
16:41
Speaker 1: a lot of these preliminary relief questions, and that we're
16:46
Speaker 1: going to start to see, you know, even more of
16:50
Speaker 1: what we've already been seeing, which is cases going right
16:53
Speaker 1: on up to the Supreme Court in a way that
16:56
Speaker 1: I think certainly ten years ago, years ago, the Supreme
17:01
Speaker 1: Court wouldn't have been weighing in as readily and frequently.
17:05
Speaker 1: But yes, definitely expect more Supreme Court action. In some ways,
17:09
Speaker 1: that's an important upshot of the Kasa decision is that
17:14
Speaker 1: the Supreme Court is still calling a lot of shots
17:18
Speaker 1: with respect to how and when the executive branch can
17:22
Speaker 1: be held to account for and be constrained by the
17:27
Speaker 1: rule of law.
17:28
Speaker 2: And why do you think so many people are paying attention,
17:32
Speaker 2: even some judges to Justice Alito's concurrence in Kasa, where
17:37
Speaker 2: he warns about the court strictly adhering to the requirements
17:41
Speaker 2: for class certification, etc.
17:44
Speaker 1: Well, this is a Supreme Court that is remaking a
17:49
Speaker 1: good bit of what was for a long time fairly
17:52
Speaker 1: settled law, especially with respect to the relationship between the
17:57
Speaker 1: courts and the executive branch. And on the one hand,
18:01
Speaker 1: this court is skeptical of administrative power, but on the
18:05
Speaker 1: other hand it seems also to be supportive of presidential
18:10
Speaker 1: power to a larger extent than prior courts. And what's
18:14
Speaker 1: really an issue? And in some ways with the Alito
18:17
Speaker 1: separate opinion, which by the way, only attracted one other justice,
18:22
Speaker 1: so maybe that should itself indicate that it's not really
18:25
Speaker 1: going to be meaningful. But I think what he raises
18:28
Speaker 1: is this really at this heart of this matter is
18:31
Speaker 1: how much should the courts be weighing in and providing
18:36
Speaker 1: relief when the executive branch is undertaking action that at
18:43
Speaker 1: least the litigants think is unlawful. And you know, if
18:47
Speaker 1: you think that there's a need for strong presidential power,
18:51
Speaker 1: then you might want to have lower courts be more
18:56
Speaker 1: limited in when they can issue nationwide injunctions, letting a
19:00
Speaker 1: president's administration go forward with action even if it's being
19:05
Speaker 1: challenged in court, giving a little bit more leeway to
19:09
Speaker 1: the president. On the other hand, if you're skeptical of
19:12
Speaker 1: administrative agencies in their power, you might want to see
19:16
Speaker 1: the ability for more judicial scrutiny of administrative action. And
19:21
Speaker 1: I think goes the opposite of what Alito and Thomas
19:24
Speaker 1: were urging, And maybe we should have more liberal use
19:29
Speaker 1: of the set aside provision under the APA or under
19:32
Speaker 1: class actions. So I mean, I think, really this is
19:36
Speaker 1: a fascinating, fascinating case because it's really a pivot point
19:41
Speaker 1: in this tension between presidential power and the administrative state.
19:47
Speaker 1: And then where do the courts find themselves situate? As
19:50
Speaker 1: here in kind of policing the boundaries of the rule
19:53
Speaker 1: of law, we're in a realm in which the lower
19:57
Speaker 1: courts are faithful agents. I think of a body of
20:02
Speaker 1: law that has existed for a long time, and they're
20:06
Speaker 1: in a sense in case after case it seems, getting
20:09
Speaker 1: the rug pulled out from under them. And so they're
20:14
Speaker 1: dutifully when faced with alternative arguments and alternative bases for
20:20
Speaker 1: providing relief, calling it like they see it, and that
20:24
Speaker 1: is the rule of law. That is what lower court
20:27
Speaker 1: judges should be doing. At times, seems like the Supreme
20:31
Speaker 1: Court doesn't really have those lower court justices back, if
20:37
Speaker 1: you will, And it's a very interesting time to have
20:42
Speaker 1: a Supreme Court that, you know, whether it's on presidential
20:46
Speaker 1: immunity or other questions here, you know, really kind of
20:50
Speaker 1: undermining what the lower courts as dutiful agents of enforcers
20:55
Speaker 1: of the law, as they should.
20:57
Speaker 2: There are only two justices who have trial court experience.
21:01
Speaker 2: Justice is Sonya Sotomayor and Katanji Brown Jackson. And I
21:06
Speaker 2: wonder if that plays into the justice's attitudes towards the
21:10
Speaker 2: trial court judges.
21:11
Speaker 1: Sometimes there's accusations of ideological differences, but I think there's
21:17
Speaker 1: another difference here. It's just the Supreme Court is overseeing
21:21
Speaker 1: an entire judicial system, and it seems that as of late,
21:25
Speaker 1: you know, at least impressionistically, in a lot of important cases,
21:29
Speaker 1: the lower courts are calling it like what all the experts,
21:33
Speaker 1: even my law students would have said, you know, this
21:37
Speaker 1: is the right answer. I mean, just you know, black
21:39
Speaker 1: letter law, and yet we're changing things.
21:43
Speaker 2: So yeah, it seems like the value of precedent has
21:46
Speaker 2: diminished a great deal. Thanks so much Carrie for joining me.
21:50
Speaker 2: That's Professor Carry Colinisi of the University of Pennsylvania Carrie
21:55
Speaker 2: Law School. This term, the Trump administration is bagging behind
22:00
Speaker 2: the Biden administration and the first Trump administration in judicial appointments.
22:06
Speaker 2: Joining me is Professor Carl Tobias of the University of
22:09
Speaker 2: Richmond Law School. So Carl Whitney Hermanndorffer is going to
22:14
Speaker 2: be the first judge confirmed for the Trump administration this
22:19
Speaker 2: time around. How does this compare, you know, one judge
22:22
Speaker 2: at this point in July, mid July, compared to how
22:27
Speaker 2: many judges Biden had confirmed by this point and how
22:32
Speaker 2: many judges Trump had confirmed by this point in his
22:35
Speaker 2: first term.
22:36
Speaker 4: I don't have the right infirm me, but I think
22:38
Speaker 4: Biden was somewhere between five and ten, and a couple
22:42
Speaker 4: of them were appellate judges, and then Trump, I think
22:47
Speaker 4: might have been a little slower than Biden, and he
22:53
Speaker 4: had three or four or so maybe five, but all
22:58
Speaker 4: of them, you know, started fairly slowly, but I think
23:02
Speaker 4: it is much slower than he did in the first term.
23:05
Speaker 4: But he has been busy doing lots of other things.
23:08
Speaker 2: Well. Is it also that not as many judges are
23:12
Speaker 2: taking retirement.
23:15
Speaker 4: Yes, of course, because remember a Republican majority in the
23:19
Speaker 4: last two years of Obama's presidency did not confirm very
23:26
Speaker 4: many people at all, in fact, the fewest since Harry
23:29
Speaker 4: Truman was president, and so that meant that more than
23:34
Speaker 4: a hundred vacancies appellot and district were available for Trump
23:41
Speaker 4: to fill, and so of course he was bound to
23:45
Speaker 4: determined to fill all of those, and did fill all
23:48
Speaker 4: of the appellate ones, which hadn't happened since nineteen eighty
23:52
Speaker 4: four during Reagan's administration. So he was focused like a
23:57
Speaker 4: laser on the appeals courts and had many to fill.
24:01
Speaker 2: Bloomberg Law reported recently that even Republican judges are hesitant
24:08
Speaker 2: right now to retire because of the fact that Trump
24:13
Speaker 2: in the second term is looking for Trump loyalists rather
24:17
Speaker 2: than just conservatives.
24:19
Speaker 4: Yes, as your reporter said, and a number of people
24:23
Speaker 4: have pointed out, there have been hardly any judges appointed
24:29
Speaker 4: by Democrats or Republicans this year who have chosen to
24:35
Speaker 4: take senior status. And I think it's especially compelling at
24:39
Speaker 4: the appellate level. I don't believe any appellate judge has
24:43
Speaker 4: said that the person has the intention to assume senior status.
24:48
Speaker 4: And part of that I think is seeing some of
24:51
Speaker 4: Trump's two point zero nominees, at least that's what the
24:56
Speaker 4: legal press is saying.
24:58
Speaker 2: So speaking of one of his nomine that was controversial
25:02
Speaker 2: to start out with, that's Emil Beauvet, and he wouldn't
25:06
Speaker 2: answer directly if Trump could serve a third term in
25:11
Speaker 2: office under the constitution. A lot of the nominees won't
25:16
Speaker 2: say whether Biden really won the election or not. They'll
25:20
Speaker 2: say things like, well, he was president, he was sworn in.
25:23
Speaker 2: I mean, this takes partisanship to a new level, doesn't it.
25:28
Speaker 4: Well, I think it does, which is unfortunate. Of course,
25:32
Speaker 4: that's very true, especially of the Department of Justice nominees
25:36
Speaker 4: who's been confirmed, especially at the upper echelon level. But
25:41
Speaker 4: Bode also declined to say whether he had said something
25:48
Speaker 4: very degrading about the district judges and whether court orders
25:56
Speaker 4: would be followed by this administration, and he just refused
26:01
Speaker 4: to weigh in on whether he had said that and
26:05
Speaker 4: used a very bad word to describe that. So it's
26:10
Speaker 4: just unclear. But he had very few straightforward answers in
26:16
Speaker 4: the hearing, especially from Democrats questioning him and the kind
26:22
Speaker 4: of questions that you're asking about January sixth and others,
26:26
Speaker 4: and just left I think a number of people wondering
26:31
Speaker 4: what exactly he would do, whether he had proper temperament
26:34
Speaker 4: for someone to sit on the US Court of Appeals
26:38
Speaker 4: for the Third Circuit if his vote.
26:40
Speaker 2: Goes down party lines. I mean, is there anyone that
26:44
Speaker 2: the Republicans won't push through then? Because there's also, you know,
26:48
Speaker 2: as you mentioned, whistleblower allegations, and there have been confirming
26:52
Speaker 2: documents about them. So either you believe the whistle blower
26:56
Speaker 2: or you believe him you denied the whole thing.
26:59
Speaker 4: Well, that's a good question. I think some people thought
27:03
Speaker 4: that Senator tell Us from North Carolina might vote know,
27:08
Speaker 4: given what he did by way of saying he would
27:12
Speaker 4: oppose Ed Martin for DC US Attorney. But he said
27:18
Speaker 4: just last week that he probably would vote for bov
27:23
Speaker 4: because his staff recommended that he vote yes. I don't
27:28
Speaker 4: know what he will do. But it is possible that
27:33
Speaker 4: there will be another twelve to ten party line vote
27:37
Speaker 4: on this nominee, and then it goes to the floor,
27:42
Speaker 4: and the question is whether Democrats can muster enough votes
27:47
Speaker 4: from Republicans on the floor, and they are likely to
27:51
Speaker 4: be relatively deferential to their Judiciary Committee members and their vote.
27:56
Speaker 4: If it turns out that way, he's an eleven eleven vote.
27:59
Speaker 4: It gets the closer.
28:01
Speaker 2: Trump is nominating Eric Chung, a former federal prosecutor for
28:05
Speaker 2: the ninth Circuit, so he's replacing a George W. Bush appointee,
28:09
Speaker 2: So that won't shift the balance on that court.
28:13
Speaker 4: That's right. It still would be sixteen active judges appointed
28:17
Speaker 4: by Democratic presidents and thirteen appointed by Republican presidents. As
28:23
Speaker 4: you know. Of course, Trump has appointed ten in one
28:29
Speaker 4: point oh to that court, which makes it much closer
28:33
Speaker 4: than it used to be in terms of appointing president.
28:36
Speaker 2: What about Toung? Is there any opposition to him?
28:39
Speaker 4: Not that I've heard of. I mean, he looks more
28:42
Speaker 4: to me and others like the one point oh nominees
28:47
Speaker 4: who are members of the Federalist Society. He is at
28:53
Speaker 4: Don mcgahn's firm, who you know, was the White House
28:56
Speaker 4: Council for the first two years of one point zero.
29:00
Speaker 4: Has done a lot of commercial litigation and work of
29:04
Speaker 4: that sort, but he would be a classic one point
29:07
Speaker 4: oh nominee. So there is some levining there may be
29:11
Speaker 4: on the part of Trump and the other person for
29:14
Speaker 4: the first Circuit in Maine named Joshua Dunlap, a similar
29:20
Speaker 4: sort of nominee. That was the seat that was to
29:23
Speaker 4: go to the person who's now in the Main Supreme Court,
29:27
Speaker 4: Julia Lippez. When the deal was struck with Schumer for
29:31
Speaker 4: the four appellate nominees who did not get votes in
29:34
Speaker 4: return for the twelve district nominees who did in November
29:39
Speaker 4: last year, And is there.
29:41
Speaker 2: A hold up for confirmation of the US attorneys in
29:45
Speaker 2: the Southern and Eastern districts of New York.
29:49
Speaker 4: What I think is going on there is Schumer is
29:52
Speaker 4: not returning his blue slip for Clayton on the Southern
29:56
Speaker 4: district and the same for the Eastern District nominee, and
30:00
Speaker 4: Graftley has said he will honor that. So Trump has
30:05
Speaker 4: to come up with another nominee for both of those
30:08
Speaker 4: US attorney positions. Is the way I understand it, so
30:12
Speaker 4: he hasn't done that, and then it falls to the
30:15
Speaker 4: judges of the district. They have the discretion to appoint
30:19
Speaker 4: somebody else when the acting or interim's time expires one
30:25
Speaker 4: hundred and twenty days.
30:27
Speaker 2: And also the federal judges in the Northern District of
30:30
Speaker 2: New York decline to appoint John Sarcone, who was Trump's
30:36
Speaker 2: temporary US Attorney pick, to permanently serve as the top prosecutor.
30:41
Speaker 2: There is that unusual.
30:44
Speaker 4: He has very unusual. It's rare that they their judges
30:47
Speaker 4: go forward and exercise that discretion, but they do sometimes,
30:52
Speaker 4: and in this situation they decline to go forward with him,
30:59
Speaker 4: And so now I don't know exactly why it is
31:03
Speaker 4: going to happen. I was surprised they didn't then name
31:06
Speaker 4: somebody else, which they have the authority to do. But
31:09
Speaker 4: maybe they'll do that in the coming days.
31:11
Speaker 2: Do you have any hint as to why they didn't
31:14
Speaker 2: confirm him.
31:16
Speaker 4: Well, there are a number of reports in the newspapers
31:19
Speaker 4: in the Northern District, especially Albany Paper, but some others
31:25
Speaker 4: that left the impression that the judges were not happy
31:30
Speaker 4: with his work during that one hundred and twenty days
31:34
Speaker 4: and there were questions about where he lived. He's from
31:37
Speaker 4: Westchester County. And also he was said that in the
31:41
Speaker 4: first term of Trump he was hoping to be appointed
31:44
Speaker 4: at the federal bench, and he also hopes to be
31:46
Speaker 4: appointed to the federal bench in this term. And so
31:49
Speaker 4: some of that may not have sat well with the
31:52
Speaker 4: judges of the Northern District. I don't know, but in
31:55
Speaker 4: any event, they've declined to exercise it, even though they
31:58
Speaker 4: have that discussion and could do that and could do
32:00
Speaker 4: it yet otherwise, I think it's back to the drawing boards,
32:03
Speaker 4: and then maybe the president would have some other permanent
32:07
Speaker 4: nominee for that position who could be confirmed by the Senate.
32:12
Speaker 4: But also if the judges go ahead and appoint someone,
32:14
Speaker 4: that person would be acting or interim in that period
32:18
Speaker 4: until there was a nominee from the White House who
32:20
Speaker 4: was confirmed.
32:22
Speaker 2: Istrup also being slow about making nominations for US attorneys.
32:27
Speaker 4: Yes, and this is in contrast to one point zero
32:31
Speaker 4: where he named eighty five US attorneys who were confirmed
32:37
Speaker 4: on bipartisan votes. And so it's troubling that he is
32:42
Speaker 4: moving so slowly now. But for some reason he's using
32:46
Speaker 4: interims and actings rather than appointing permanent people, and that
32:51
Speaker 4: avoids the advice and consent of the Senate, and I
32:54
Speaker 4: think the Senate is not happy about that, especially Judiciary
32:57
Speaker 4: Committee members, because they're supposed to have that opper that's
33:00
Speaker 4: in the Constitution. So it's just unclear what they're doing.
33:04
Speaker 4: And so right now we have maybe twenty to twenty
33:08
Speaker 4: five whom the President has nominated, but not one has
33:12
Speaker 4: been confirmed yet. And the reason for that is Dick Durbin,
33:17
Speaker 4: the ranking member on Judiciary, has said that he's holding
33:22
Speaker 4: up all of those people on the floor should they
33:25
Speaker 4: get there, because Vice President Vance, as a Senator from Ohio,
33:31
Speaker 4: refused to confirm Durbin's nominee for the Northern District of Illinois,
33:35
Speaker 4: as well as Vance's own person for the Northern District
33:40
Speaker 4: of Ohio because he didn't like what was going on
33:44
Speaker 4: as the Justice Department. Twenty three, twenty four.
33:47
Speaker 2: It's payback. What can I say, Chuck Schumer's holding the
33:50
Speaker 2: US attorney nominee because Trump accepted that jet. You can't
33:54
Speaker 2: make this stuff up. Hookay, Carl, thanks so much. That's
33:57
Speaker 2: Professor Carl Tobias of the University of Richmond Law School,
34:00
Speaker 2: and that's it for this edition of The Bloomberg Law Show.
34:03
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