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DOJ Sues Blue States Over Suits Against Big Oil · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:08
  Speaker 2: The lawsuits have been called unprecedented. The Trump administration has
• 0:13
  Speaker 2: filed lawsuits against four Blue states over their lawsuits against
• 0:18
  Speaker 2: fossil fuel companies. The states are trying to collect billions
• 0:22
  Speaker 2: of dollars from oil companies like Exxon, Mobil, BP, and
• 0:26
  Speaker 2: Chevron to hold them accountable for damages caused by climate change.
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  Speaker 2: But last week, the Justice Department suit Hawaii, Michigan, New York,
• 0:36
  Speaker 2: and Vermont trying to shut down their lawsuits against the
• 0:40
  Speaker 2: fossil fuel companies. My guest is environmental law expert Pat Parento,
• 0:45
  Speaker 2: a professor at the Vermont Law and Graduate School. Pat,
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  Speaker 2: is it unprecedented or just unusual for an administration to
• 0:53
  Speaker 2: be suing states over their lawsuits against companies?
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  Speaker 1: It's unheard of. There's never been a case where the
• 1:02
  Speaker 1: federal government has filed a lawsuit in federal courts to
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  Speaker 1: prevent states from bringing their own actions in their own
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  Speaker 1: state courts. It's almost like saying, don't you even think
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  Speaker 1: about it? So I predict that these cases will be dismissed.
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  Speaker 1: There's no legal basis to do this kind of preemptive
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  Speaker 1: strike before you've even seen the complaint. Now Hawaii has sued,
• 1:32
  Speaker 1: so we now know what their complaint looks like. Michigan,
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  Speaker 1: the Attorney general there, Dana Nessel, is determined to file
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  Speaker 1: suit but hasn't yet. But you know, this move is
• 1:43
  Speaker 1: kind of a show of force, shot across the bow
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  Speaker 1: sort of move. But it's not going to result in
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  Speaker 1: preventing the States from bringing their cases. There's still going
• 1:52
  Speaker 1: to be arguments about whether the cases can move forward
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  Speaker 1: or whether they're going to be dismissed, but that's a
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  Speaker 1: separate question.
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  Speaker 2: Here's what Atorney General Pambondi said. These burdensome and illogically
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  Speaker 2: motivated laws and lawsuits threaten American energy independence and our
• 2:08
  Speaker 2: country's economic and national security. So they say they violate
• 2:14
  Speaker 2: the federal government's foreign affairs power. They're preempted by the
• 2:18
  Speaker 2: Clean Air Act. Tell us about what their claims are.
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  Speaker 1: Their claims are groundless, they're fact free. The United States
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  Speaker 1: is the energy dominant force in the world, where the
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  Speaker 1: net exporter of oil and gas. We've got more than
• 2:33
  Speaker 1: adequate reserves to provide for our energy needs as well
• 2:37
  Speaker 1: as to export energy. The problem with that, of course,
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  Speaker 1: is that's driving us further into the climate crisis, closer
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  Speaker 1: to the climate cliff that climate scientists are warning us about.
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  Speaker 1: But the energy is there, it's booming, so there is
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  Speaker 1: no crisis. There is no emergency on that front. And
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  Speaker 1: in terms of baseless well, you know, that's why we
• 3:02
  Speaker 1: have courts. We'll see the cases that are proceeding against
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  Speaker 1: the oil companies which the Trump administration now wants to
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  Speaker 1: go to bat for. Six of them filed by different states,
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  Speaker 1: are moving towards trial. The one in Hawaii that was
• 3:18
  Speaker 1: filed by the Honolulu it's different from the case that
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  Speaker 1: the state has just filed that's in discovery, that's moving
• 3:24
  Speaker 1: to trial and so forth. So you know, there's a
• 3:27
  Speaker 1: way to determine whether these cases have merit, and it's
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  Speaker 1: not in the press, and it's not with a statement
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  Speaker 1: from Pambondi. It's a decision that will be reached in
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  Speaker 1: due course based on the evidence by juries in state courts,
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  Speaker 1: and we'll see how that all plays out. It's a
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  Speaker 1: long game. We're a long way from knowing exactly what
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  Speaker 1: the final result is going to be. But one thing
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  Speaker 1: we do know, all of these states that are bringing
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  Speaker 1: these actions are suffering enormous costs and damages from the
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  Speaker 1: effects of the climate disruption that we're currently seeing, never
• 4:01
  Speaker 1: mind what's coming in the future. Right So in you know,
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  Speaker 1: Vermont flooding has caused over a billion dollars worth of
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  Speaker 1: damage in back to back flooding events twenty twenty three,
• 4:13
  Speaker 1: twenty twenty four and more to come. So you know,
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  Speaker 1: there's real damages, real costs, And these cases are designed
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  Speaker 1: to say, very simply, your product oil companies caused the damage.
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  Speaker 1: You didn't intend it, perhaps you knew about it, you
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  Speaker 1: didn't tell the truth about it. That's what these cases
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  Speaker 1: are alleging, of course, and then have to prove. But
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  Speaker 1: the truth is that the damage has occurred, the costs
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  Speaker 1: of being incurred, and the companies that have made very
• 4:42
  Speaker 1: significant profits off of marketing their products and selling their
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  Speaker 1: products to people who wanted them. For sure, you know,
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  Speaker 1: in our legal tradition that means the result of your activity,
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  Speaker 1: which has caused the states to incur costs, exposes you
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  Speaker 1: to liability for recovery of those costs. That's the nature
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  Speaker 1: of the cases that are underway.
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  Speaker 2: The federal government's lawsuits also allege that the state suits
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  Speaker 2: are a risk to national security. According to a statement
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  Speaker 2: from the Attorney General Pam Bondi, it makes the US
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  Speaker 2: less able to defend itself from hostile foreign actors. The
• 5:24
  Speaker 2: Trump administration is using national security concerns in all kinds
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  Speaker 2: of actions, from invoking the Alien Enemies Act up to
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  Speaker 2: tariffs on movies made overseas.
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  Speaker 1: And of course prior administrations, even as far back as
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  Speaker 1: George W. Bush, a Republican administration. Of course, the Defense
• 5:45
  Speaker 1: Department has been saying climate change is one of the
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  Speaker 1: major threats to national security. It's a force multiplier effect.
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  Speaker 1: It causes disruption around the world, it makes us more
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  Speaker 1: vulnerable to terrorism, et cetera. That's the Defense Department speaking,
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  Speaker 1: that's not environmental groups. That's not the states that are
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  Speaker 1: bringing these actions creating these threats. These threats are real
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  Speaker 1: and they're the result of these impacts that are causing
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  Speaker 1: the climate system to basically go out of control. So,
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  Speaker 1: you know, the whole idea that the states seeking recovery
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  Speaker 1: of these costs are threatening national security is pure buncom
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  Speaker 1: It's not true, it's not real, it can't be proven,
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  Speaker 1: and the companies have raised various kinds of arguments many
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  Speaker 1: times the courts that have considered those arguments have rejected them.
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  Speaker 1: There's still cases pending. We'll see how they go. But
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  Speaker 1: there's a way to make those arguments if you want
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  Speaker 1: to make them, but so far they have not won
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  Speaker 1: the day.
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  Speaker 2: Hawaii's Attorney General An Lopez, besides calling the Lass suit
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  Speaker 2: deeply disturbing, said it was a direct attack on Hawaii's
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  Speaker 2: rights as a sovereign state. So states have constitutionally protected rights.
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  Speaker 2: But where's the line between the state's rights and the
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  Speaker 2: federal government's rights.
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  Speaker 1: Well, you know, it is certainly true that states have
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  Speaker 1: limits on what kinds of actions they can bring that
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  Speaker 1: affect interstate commerce, for example, And you know that's a
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  Speaker 1: very complicated area of the law. We had a recent
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  Speaker 1: decision from the US Supreme Court that was badly splintered.
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  Speaker 1: It involved California's regulation of pork production. In course, California
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  Speaker 1: being the fifth largest economy in the world, it imports
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  Speaker 1: a lot of pork products, particularly from places like North Carolina,
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  Speaker 1: which has these massive factory farms. Right, and so the
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  Speaker 1: latest announcement from the Supreme Court is very fractured, but
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  Speaker 1: the essence of it was to uphold California's law regulating
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  Speaker 1: the way hogs are raised in North Carolina. Okay, So
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  Speaker 1: one of the central features of the limits on state
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  Speaker 1: authority is you can't unduly burden interstate commerce with the
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  Speaker 1: legislation that a state might enact. Even in that case,
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  Speaker 1: the Supreme Court upheld basically California's law. The point is, again,
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  Speaker 1: there are arguments you can make that states have exceeded
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  Speaker 1: their authority by externalizing their law to other states or
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  Speaker 1: to the nation. That's something that Trump administration is arguing
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  Speaker 1: that once state can't set rules that govern all states
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  Speaker 1: for example. Okay, I understand that argument. You can make
• 8:53
  Speaker 1: that argument and see how it goes. But you can't
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  Speaker 1: say you can't even bring a lawsuit based on the
• 9:01
  Speaker 1: state law because we the federal government, have determined it's unconstitutional.
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  Speaker 1: That's not the way it works. So if the Trump
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  Speaker 1: administration wants to intervene in some of these ongoing cases
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  Speaker 1: in Vermont and New York, for example, which they now
• 9:18
  Speaker 1: have said they're going to do, if they haven't already, fine,
• 9:22
  Speaker 1: come on in, join the party, make your argument and
• 9:24
  Speaker 1: see what happens. But they don't enjoy any particularly special
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  Speaker 1: authority when they do that, they can't walk into court
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  Speaker 1: and say we're right. Just issue an injunction or issue
• 9:36
  Speaker 1: an order according to what we would like to have
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  Speaker 1: you do. Again, that's not the way it works. Make
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  Speaker 1: your argument, see if you can win it. I don't
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  Speaker 1: think they will, but they're entitled to try.
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  Speaker 2: They file lawsuits against Vermont and New York. And are
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  Speaker 2: these based on the Superfund Acts?
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  Speaker 1: Yes, they are, and they are following in the footsteps
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  Speaker 1: of the state attorneys general in the Republican states, the
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  Speaker 1: Red States, twenty four of them have file lawsuits against
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  Speaker 1: Vermont and New York. So the Trump administration is a
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  Speaker 1: little late to that party as well, but they're joining
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  Speaker 1: with their colleagues in the Red States to argue that
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  Speaker 1: Vermont and New York's climate superfund laws are unconstitutional. Same
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  Speaker 1: array of issues. You mentioned earlier that the Clean Air
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  Speaker 1: Act preemps these cases. Well, wait a minute, these cases
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  Speaker 1: are not about emissions. They're not regulating sources of emissions.
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  Speaker 1: They're not regulating power plants. They're regulating the producers of
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  Speaker 1: the products the oil and gas that are of course
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  Speaker 1: fueling these power plants and cars and other things. But
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  Speaker 1: their arguments are based on superfund type remedies, which are
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  Speaker 1: when you have an indivisible harm, which climate change is
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  Speaker 1: all of these greenhouse gases mixed in the atmosphere and
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  Speaker 1: you can't tell. It doesn't matter where the emissions are
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  Speaker 1: coming from, they're all causing you know, indivisible damage, real damage,
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  Speaker 1: real cost. And under the polluter pays principle, which is
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  Speaker 1: what superfund is, there's strict liability, not based on fault.
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  Speaker 1: It's a no fault kind of system. But the idea is, again,
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  Speaker 1: the public shouldn't bear the costs caused by your product.
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  Speaker 1: You the manufacturer of the products, the ones that are
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  Speaker 1: in position to either prevent the damage or certainly tell
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  Speaker 1: the truth about what the damage is going to be
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  Speaker 1: and support measures to mitigate the harm or prepare for
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  Speaker 1: the harm, etc. Where your product has caused states to
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  Speaker 1: incur costs, you're liable as a matter of law. That's
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  Speaker 1: very well established law at the federal level. The new
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  Speaker 1: wrinkle here is the states are borrowing from the federal
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  Speaker 1: superfund law and using it and enacting it as state
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  Speaker 1: law law and applying it to climate change. Again, I'll
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  Speaker 1: admit this is an expansion of the super fun theory
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  Speaker 1: of liability into a very complex area of both law
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  Speaker 1: and fact and science right with climate change. And again,
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  Speaker 1: until we have seen how these cases work out and
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  Speaker 1: are litigated and get to the jury and see what
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  Speaker 1: juries do with the evidence, we don't know whether the
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  Speaker 1: states are actually going to succeed in these cases. There's
• 12:30
  Speaker 1: a long way to go on that, and lots of
• 12:33
  Speaker 1: obstacles and arguments to overcome for the states to recover.
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  Speaker 1: But the basic theory that the states are pursuing here
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  Speaker 1: is well understood. It's been well established at federal law,
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  Speaker 1: and now we'll see if it can apply to climate
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  Speaker 1: change damage.
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  Speaker 2: Coming up next, we'll tell you about similar cases that
• 12:52
  Speaker 2: the Supreme Court has turned away. You're listening to Bloomberg.
• 12:57
  Speaker 2: I've been talking to Professor Pat Parento Law and Graduate School.
• 13:02
  Speaker 2: In January, didn't the Supreme Court turn down an attempt
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  Speaker 2: by a group of nineteen Republican led states to block
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  Speaker 2: lawsuits by five Democratic states against oil and gas companies
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  Speaker 2: trying to hold them responsible for climate change?
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  Speaker 1: Yes, they did in two different cases, one from Alabama,
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  Speaker 1: one from Ohio. And these were original actions that the
• 13:26
  Speaker 1: Red States were trying to get the Supreme Court to
• 13:30
  Speaker 1: take these cases and block all of these different lawsuits
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  Speaker 1: by the States, And you're right, the Supreme Court denied
• 13:37
  Speaker 1: the review of those cases. Are denied invoking their original
• 13:41
  Speaker 1: jurisdiction without an opinion. By the way, the Supreme Court
• 13:44
  Speaker 1: also rejected a request for review in the Honolulu case,
• 13:49
  Speaker 1: which probably was a better vehicle. Frankly, if the Supreme
• 13:53
  Speaker 1: Court was going to take a case that would look
• 13:56
  Speaker 1: at these constitutional issues of preemption, commerce clause, etc. It
• 14:02
  Speaker 1: would have been the Honolulu case. It took the Supreme
• 14:05
  Speaker 1: Court three or four different conferences, including requesting the views
• 14:10
  Speaker 1: of the Solicitor General, before the Supreme Court finally decided
• 14:15
  Speaker 1: not to take that case, which is clearly a green
• 14:18
  Speaker 1: light for the cases to proceed and for the Supreme
• 14:21
  Speaker 1: Court for the moment at least, to stay its hand
• 14:25
  Speaker 1: and wait to see how these cases sort of percolate
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  Speaker 1: up and back to the Supreme Court.
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  Speaker 2: So, I mean, we've talked before, how about how the
• 14:34
  Speaker 2: Trump administration is targeting climate policy and the EBA administrator
• 14:40
  Speaker 2: Lee Zelden has said his agency is going to overturn
• 14:45
  Speaker 2: a finding under the Clean Air Act that greenhouse gas
• 14:48
  Speaker 2: is in danger public health and welfare.
• 14:51
  Speaker 1: Oh yeah, so you talk about irony or maybe even
• 14:55
  Speaker 1: the other word hypocrisy. Here's the way this works. The
• 14:59
  Speaker 1: Department of just in these cases challenging the state lawsuits,
• 15:04
  Speaker 1: is saying that those state cases are preempted by the
• 15:10
  Speaker 1: Clean Air Act because it regulates all of these greenhouse
• 15:14
  Speaker 1: gas emissions. And yet their client, Administrator Zelden, has said,
• 15:21
  Speaker 1: I am embarked on a process to repeal the endangerment finding,
• 15:28
  Speaker 1: which is the foundation for all of the regulation under
• 15:32
  Speaker 1: the Clean Air Act. That doesn't add up, does it?
• 15:36
  Speaker 1: If the Clean Air Act did preempt these cases, and
• 15:40
  Speaker 1: by the way, I don't think it does. But if
• 15:43
  Speaker 1: it did, according to the Justice Department's argument, then what
• 15:47
  Speaker 1: the heck is Administrator Zelden doing taking away EPA's authority
• 15:54
  Speaker 1: to actually regulate the emissions makes no sense.
• 15:57
  Speaker 2: And what has the Interior Secretary Doug Burkham been up to.
• 16:02
  Speaker 1: Well, he's the head of this tax force and I
• 16:05
  Speaker 1: forget the exact name of it, with the Energy Basically,
• 16:09
  Speaker 1: task Force is the idea of an entity that's going
• 16:13
  Speaker 1: to restore America's energy dominance. So his role is to
• 16:20
  Speaker 1: facilitate the development of fossil fuels, fast tracking permits and
• 16:25
  Speaker 1: licenses and leases and all of that. So he's coordinating
• 16:30
  Speaker 1: across the federal government to make sure that Trump's policy
• 16:37
  Speaker 1: of accelerating the development of just fossil fuel, he's also
• 16:42
  Speaker 1: opposing renewable energy. They've canceled permits for offshore wind development
• 16:48
  Speaker 1: on the on the East Coast, They've withdrawn areas that
• 16:53
  Speaker 1: were designated for wind development in the Gulf, et cetera.
• 16:57
  Speaker 1: So they're doing two things at once, promoting fast tracked
• 17:02
  Speaker 1: fossil fuel development while inhibiting and prohibiting and taking money
• 17:06
  Speaker 1: away from renewable energy. So that's Bergham's role in all
• 17:13
  Speaker 1: of this facilitate fossil, block renewable.
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  Speaker 2: Is this like a broader attack than just by the
• 17:22
  Speaker 2: Trump administration because House Republicans passed a measure that would
• 17:26
  Speaker 2: thwart California rules that ban the sale of new gas
• 17:30
  Speaker 2: cars by twenty thirty five, joined by thirty five Democrats.
• 17:34
  Speaker 2: I mean, what's that about.
• 17:36
  Speaker 1: Yeah, that's what's called the California Waiver. Under the Clean
• 17:40
  Speaker 1: Air Act, California has independent authority to set more stringent
• 17:48
  Speaker 1: vehicle emission standards and even relatedly, fuel economy standards. California
• 17:55
  Speaker 1: has done that ever since nineteen seventy when the Clean
• 17:58
  Speaker 1: Air Act was passed, and of course California at that
• 18:01
  Speaker 1: time had some of the worst air quality in the country.
• 18:04
  Speaker 1: Now other places like Houston and Denver compete with that,
• 18:08
  Speaker 1: but still there's a lot of serious air quality problems.
• 18:11
  Speaker 1: So California has this unique authority which they've used and
• 18:15
  Speaker 1: has been upheld by various administrations over time for over
• 18:19
  Speaker 1: forty years. It's given us some of the most innovative
• 18:23
  Speaker 1: clean car technologies, think catalytic converters, which eliminated lead poisoning
• 18:30
  Speaker 1: in the air, which was killing people and causing serious
• 18:34
  Speaker 1: brain injuries to children, and so on. It gave us
• 18:38
  Speaker 1: the hybrid vehicle technology because it was California who told
• 18:43
  Speaker 1: Japan and other countries producing automobiles that they wanted to
• 18:47
  Speaker 1: sell in California that they were going to have to
• 18:50
  Speaker 1: make their low emission vehicle regulations more stringent than what
• 18:54
  Speaker 1: EPA was requiring. And that's what led Toyota to begin
• 19:00
  Speaker 1: to develop the now hybrid technologies that we see being
• 19:05
  Speaker 1: developed all over the world and so forth. So the
• 19:08
  Speaker 1: California Waiver has ensured that the United States has been
• 19:13
  Speaker 1: a leader in clean car technologies right now. Of course,
• 19:20
  Speaker 1: the House Republicans have used what's called the Congressional Review
• 19:25
  Speaker 1: Act process, which requires just a simple majority in both
• 19:29
  Speaker 1: houses of Congress to pass a resolution, which, of course
• 19:33
  Speaker 1: then the president would sign and Trump certainly will sign
• 19:36
  Speaker 1: this one. And so that's what's just happened in the
• 19:39
  Speaker 1: House is they use this CRA process to revoke the
• 19:45
  Speaker 1: California waiver. Here's the tricky thing about it. When it
• 19:48
  Speaker 1: gets to the Senate, there's a rule which requires the
• 19:53
  Speaker 1: Senate parliamentarian to certify that a provision in a a
• 20:00
  Speaker 1: fiscal bill, a money bill, which is what the House
• 20:04
  Speaker 1: is working on, the reconciliation bill, a budget bill. Right
• 20:09
  Speaker 1: So in the Senate, the parliamentarian has ruled you can't
• 20:14
  Speaker 1: include revocation of the California waiver in the Senate because
• 20:22
  Speaker 1: it's not germane to the budget bill. This is called
• 20:26
  Speaker 1: the Bird rule, by the way, after Senator Bird. But
• 20:30
  Speaker 1: the Republicans in the Senate are now trying to mount
• 20:35
  Speaker 1: a supermajority to overturn the parliamentarian's rule on that. So
• 20:42
  Speaker 1: it's a long winded, unfortunately conversation. But we don't know
• 20:47
  Speaker 1: whether the revocation of the California waiver will pass the Senate.
• 20:52
  Speaker 1: It looks like it might, and that would be a
• 20:55
  Speaker 1: very unfortunate thing for not only for climate change regulation,
• 21:02
  Speaker 1: but just for public health in general, because the more
• 21:06
  Speaker 1: that you eliminate emissions from vehicles, volatile organic compounds, and
• 21:11
  Speaker 1: other toxic air pollutants, the better people's health are that
• 21:16
  Speaker 1: are breathing all of that automotive pollution in the big
• 21:20
  Speaker 1: cities of America. Right, So it isn't just climate that
• 21:24
  Speaker 1: they're impacting with revoking the California waiver. They're really damaging
• 21:30
  Speaker 1: public health across the country.
• 21:33
  Speaker 2: So we'll see whether these Justice Department lawsuits get very
• 21:37
  Speaker 2: far or whether they're dismissed at an early stage. President
• 21:42
  Speaker 2: Donald Trump's first appellate court nominee will be Tennessee state
• 21:47
  Speaker 2: litigator Whitney Hernandorfer to the US Court of Appeals for
• 21:51
  Speaker 2: the Sixth Circuit. Hernandorfer directs the Strategic Litigation Unit for
• 21:56
  Speaker 2: the Tennessee Attorney General's Office. She defended fancies near total
• 22:01
  Speaker 2: ban on abortions in instances when life threatening pregnancy complications arise,
• 22:07
  Speaker 2: and challenged a Biden era rule prohibiting discrimination against transgender
• 22:12
  Speaker 2: students under Title nine. Joining me is an expert in
• 22:16
  Speaker 2: the judiciary. Carl Tobias, a professor at the University of
• 22:19
  Speaker 2: Richmond School of Law. Carl tell us about Hernandorfer and
• 22:24
  Speaker 2: whose seat she's taking.
• 22:26
  Speaker 3: She will take a vacancy created by a Democratic appointee
• 22:34
  Speaker 3: named Jane stranch and it was the seat that Carla
• 22:39
  Speaker 3: Campbell was nominated for by Biden, but was one of
• 22:42
  Speaker 3: the four people at the appellate level who did not
• 22:47
  Speaker 3: receive a final confirmation vote because of the deal that
• 22:50
  Speaker 3: was struck in November by Democrats and Republicans, and so
• 22:55
  Speaker 3: that's the seat that Hermandorfer will be nominated who the
• 23:01
  Speaker 3: President announced the nomination after eleven PM on Thursday on
• 23:07
  Speaker 3: Truth Social and there's nothing on the White House website yet,
• 23:11
  Speaker 3: so her name has not gone to the Senate. Her
• 23:15
  Speaker 3: background is very strong. She was a clerk for Justice
• 23:23
  Speaker 3: Brett Cavanaugh when he was on the DC Circuit, Justice
• 23:28
  Speaker 3: Samuel Alito on the Supreme Court, and then Justice Amy
• 23:33
  Speaker 3: Coney Barrett on the Supreme Court. She also worked at
• 23:38
  Speaker 3: Williams and Connolly, which is a highly respected Washington law firm,
• 23:42
  Speaker 3: and recently she has been the director of strategic litigation
• 23:47
  Speaker 3: in the office of Tennessee Attorney General Jonathan Scurmetti and
• 23:52
  Speaker 3: litigated some cases involving abortion and transgender people. And she
• 24:00
  Speaker 3: also is quite young, I think thirty seven or thirty eight.
• 24:04
  Speaker 2: Yeah. I was going to say if she just recently
• 24:07
  Speaker 2: clerked for Supreme Court justices, she doesn't have that much
• 24:11
  Speaker 2: real world experience.
• 24:13
  Speaker 3: That's right. But she has the experience, of course at
• 24:18
  Speaker 3: Williams and Conley, and the experience with the Tennessee Attorney
• 24:23
  Speaker 3: General's Office, and so has done I think some significant
• 24:28
  Speaker 3: appellate type work, which is what she'll be doing on
• 24:32
  Speaker 3: the sixth Circuit.
• 24:33
  Speaker 2: Is she one of the youngest people to be nominated
• 24:36
  Speaker 2: for an appellate court?
• 24:37
  Speaker 3: Yes. The only one I can remember is Allison Rushing
• 24:44
  Speaker 3: on the fourth Circuit, and I believe she was thirty
• 24:48
  Speaker 3: six and was working for DC Ferm at the time,
• 24:52
  Speaker 3: and so she was I think the youngest appellate nominee
• 24:57
  Speaker 3: from the first term.
• 24:58
  Speaker 2: Trump continues his first administration's practice of nominating young judges
• 25:06
  Speaker 2: who also have you know, have shown allegiance to conservative causes.
• 25:12
  Speaker 3: Well, I think that's right. I mean, that's what she's
• 25:14
  Speaker 3: doing in the Tennessee Attorney General's Office to be sure.
• 25:18
  Speaker 3: At Williams Connelly, that's the firms it's representing Perkins Coe
• 25:24
  Speaker 3: in battling the executive order. So they deserve a lot
• 25:28
  Speaker 3: of credit for that representation because it's not popular in
• 25:32
  Speaker 3: the White House. In any event, I think that it
• 25:36
  Speaker 3: is true in the Tennessee Attorney General's Office. Being the
• 25:39
  Speaker 3: director of Strategic Litigation, she would be and has been
• 25:42
  Speaker 3: involved in, I think abortion litigation as well as litigation
• 25:47
  Speaker 3: involving transgender people. That's all valuable experience, and I think
• 25:51
  Speaker 3: that she eventually would be chief judge of the Sixth Circuit,
• 25:56
  Speaker 3: you know, if she stays there. But I think the
• 25:58
  Speaker 3: notion is to have people who are quite strong in
• 26:02
  Speaker 3: the conservative legal movement. She looks more like a federalist
• 26:05
  Speaker 3: society type pick from Trump one point zero, but it's
• 26:09
  Speaker 3: just not clear.
• 26:10
  Speaker 2: During his first term he picked a lot of ideological
• 26:14
  Speaker 2: true believers, you know, in conservative causes. Does it appear
• 26:19
  Speaker 2: that she's one of those or that's where he's going again.
• 26:24
  Speaker 3: Well, he may, but he has many fewer this time
• 26:28
  Speaker 3: in terms of appellate vacancies, are only six three current
• 26:32
  Speaker 3: and three future. But she certainly has been involved in
• 26:36
  Speaker 3: those cases I described, but it's hard to type person
• 26:40
  Speaker 3: in an ideologue. I don't think we have enough on
• 26:44
  Speaker 3: her record. I'm sure the Ener Judiciary Committee will scrutinize
• 26:47
  Speaker 3: her closely, and she's likely to be one of the
• 26:50
  Speaker 3: first people, you know, to have a hearing, I would think.
• 26:53
  Speaker 1: So.
• 26:53
  Speaker 2: Since this is for a democratic seat what was formerly
• 26:57
  Speaker 2: a Democratic seat? What does this mean for the alls
• 27:00
  Speaker 2: on the sixth Circuit?
• 27:02
  Speaker 3: There are already more appointees of Republican presidents than there
• 27:04
  Speaker 3: are Democratic presidents. So to that extent, people are looking
• 27:10
  Speaker 3: at which party appointed the particular person. It adds another Republican,
• 27:16
  Speaker 3: but I don't think it's that close on that court,
• 27:21
  Speaker 3: it won't make a strong difference. But it is an
• 27:24
  Speaker 3: important vacancy, you know, when you only have six around
• 27:27
  Speaker 3: the country, that's critical to fill.
• 27:30
  Speaker 2: So the other repellent openings are they to fill seats
• 27:33
  Speaker 2: vacated by Republican appointees or Democratic appointees.
• 27:38
  Speaker 3: Well, that's a good question. Remember, as I said, there
• 27:41
  Speaker 3: were four vacancies that had appellet nominees from Biden who
• 27:47
  Speaker 3: were not confirmed as part of that deal, and so
• 27:51
  Speaker 3: one was in Maine, one was in New Jersey and
• 27:56
  Speaker 3: one was in Delaware. Those are the current vacancy and
• 28:00
  Speaker 3: that will fall to Trump to fill. And then there
• 28:03
  Speaker 3: are three future vacancies, and the Tennessee one is considered
• 28:08
  Speaker 3: a future one. Hermanndorffer will fill that. And then in
• 28:12
  Speaker 3: Wisconsin the chief judges stepping down on the seventh Circuit,
• 28:18
  Speaker 3: and in California one of the judges out there on
• 28:21
  Speaker 3: the ninth Circuit is stepping down. So that's what we have.
• 28:24
  Speaker 3: The future ones will be this year later this year.
• 28:27
  Speaker 2: And the future ones are Republican.
• 28:30
  Speaker 3: Yes, yes, we're Republican appointees, as I remember both, I
• 28:35
  Speaker 3: think George W. Bush appointees.
• 28:39
  Speaker 2: Does it appear like the Democratic judges are going to
• 28:41
  Speaker 2: try to hold on and not retire during his term?
• 28:46
  Speaker 3: You know, that's for them to decide. It's hard to say,
• 28:49
  Speaker 3: but they have not been doing so and didn't even
• 28:54
  Speaker 3: do so so much during the Biden years. But I
• 28:57
  Speaker 3: think they're probably more Republican appointees who are eligible under
• 29:02
  Speaker 3: the rule of eighty sixty five years old and fifteen
• 29:06
  Speaker 3: years of service, but very few of them so far
• 29:10
  Speaker 3: have indicated they're going to take senior status. So we'll see,
• 29:14
  Speaker 3: but there is time depending on what happens with the midterms.
• 29:18
  Speaker 3: If Democrats were to come back into office, that opportunity
• 29:22
  Speaker 3: would to easily confirm them might go away. And so
• 29:27
  Speaker 3: my guess is that'll be a high priority for the
• 29:30
  Speaker 3: Trump administration to fill all those appellate vacancies before the
• 29:36
  Speaker 3: end of twenty twenty two.
• 29:37
  Speaker 2: And what about the lower federal courts, the district courts.
• 29:41
  Speaker 3: You've got sixty vacancies if you count current in future.
• 29:47
  Speaker 3: I think the most important thing is that the vast
• 29:50
  Speaker 3: majority of them are in red states. And so I
• 29:53
  Speaker 3: think that Trump will do exactly what it did in
• 29:56
  Speaker 3: one point oh, and that is try to every one
• 30:01
  Speaker 3: of the ones in red states and then turned to
• 30:06
  Speaker 3: the blue states and emphasize the six appelate first, and
• 30:11
  Speaker 3: then go to the forty five or more district ones
• 30:17
  Speaker 3: and try to fill those. And only when he has
• 30:20
  Speaker 3: to and has exhausted the red state ones, I think
• 30:24
  Speaker 3: will he named ones that are blue state ones with
• 30:27
  Speaker 3: two Democratic senators. So I think that's the way it'll go.
• 30:30
  Speaker 3: And Biden did something very similar during his time. He
• 30:33
  Speaker 3: filled the blue state ones. And the other interesting statistic
• 30:37
  Speaker 3: is in terms of emergencies. Out of twenty two emergencies,
• 30:42
  Speaker 3: twenty one are at the district level are in red states,
• 30:46
  Speaker 3: and so those really need to be filled.
• 30:48
  Speaker 2: In the first administration, it was sort of orchestrated by
• 30:52
  Speaker 2: the Federalist Society and it went off, you know, almost
• 30:57
  Speaker 2: without a hitch. Are the same people in charge this
• 31:00
  Speaker 2: time around.
• 31:01
  Speaker 3: That's less clear. I think Leonard Leo, who is the
• 31:05
  Speaker 3: executive vice president of that group, was the outside advisor
• 31:11
  Speaker 3: for the president, and I think did tender a whole
• 31:15
  Speaker 3: number of names of people who then were nominated and confirmed.
• 31:20
  Speaker 3: I don't believe that's the case. Now. There's a new
• 31:23
  Speaker 3: White House Council, of course, and I think that from
• 31:28
  Speaker 3: what I can tell, Mike Davis at the Article three
• 31:31
  Speaker 3: project is the outside person who is having some influence.
• 31:36
  Speaker 3: And he wrote an op ed in Fox News about
• 31:40
  Speaker 3: Hermanndorffer just the other day when she was nominated, which
• 31:43
  Speaker 3: was very complimentary of her. And so we'll see. Though
• 31:47
  Speaker 3: she looks more like a Federalist Society type of person.
• 31:52
  Speaker 3: She's worked with them and been on i think panels
• 31:57
  Speaker 3: at their convention and that type. So it's not clear yet,
• 32:02
  Speaker 3: but I think Davis and his group have a lot
• 32:06
  Speaker 3: of influence, and there are others as well, And I
• 32:09
  Speaker 3: don't think one nominee tells you a whole lot, because
• 32:13
  Speaker 3: I think her conservative credentials are quite clear, and she's
• 32:18
  Speaker 3: taken on some very difficult and controversial cases in the
• 32:21
  Speaker 3: Tennessee Attorney General's Office, so I think that she will
• 32:27
  Speaker 3: make a strong nominee. And again, that looks more like
• 32:30
  Speaker 3: a federal society person than than a MAGA judge, if
• 32:34
  Speaker 3: you will.
• 32:35
  Speaker 2: Let's turn to concerns over the growing number of federal
• 32:38
  Speaker 2: judges who are facing threats of violence, and they include
• 32:44
  Speaker 2: federal Judge James Boseburg and federal Judge John McConnell, who
• 32:49
  Speaker 2: ruled against the Trump administration. Do you see this as
• 32:53
  Speaker 2: an intimidation campaign against federal judges.
• 32:58
  Speaker 3: Well, there are concerns about that in terms of safety
• 33:04
  Speaker 3: for the judges who rule in certain ways or for
• 33:09
  Speaker 3: their families, and apparently there have been some threats. They've
• 33:13
  Speaker 3: tried to step up the security for judges who have
• 33:17
  Speaker 3: been threatened. But it is a real concern, and members
• 33:21
  Speaker 3: of Congress are concerned, and of course members of the
• 33:23
  Speaker 3: judiciary are concerned, and I think it is getting a
• 33:26
  Speaker 3: lot of attention both in the judiciary and in Congress.
• 33:31
  Speaker 3: So hopefully that will lessen those kinds of threats. But
• 33:36
  Speaker 3: that's very unfortunate, and hopefully the kind of rhetoric that
• 33:41
  Speaker 3: has been leveled a district judges would be tamped down.
• 33:45
  Speaker 1: Well.
• 33:45
  Speaker 2: Even Justice Katanji Brown Jackson denounced what she called relentless
• 33:50
  Speaker 2: attacks on the judiciary in a speech last week.
• 33:55
  Speaker 3: Yes, and she was very strong and clear about that,
• 33:58
  Speaker 3: as have been a number of other judge just for example,
• 34:00
  Speaker 3: Judge Bates on the District of Columbia District Court just
• 34:05
  Speaker 3: the other day made the same arguments, and others have
• 34:09
  Speaker 3: around the country. So there's a lot of concern about
• 34:12
  Speaker 3: that being voiced by judges and members of Congress, and
• 34:16
  Speaker 3: hopefully the rhetoric will seaks by way of attacking judges
• 34:22
  Speaker 3: for their ruling.
• 34:23
  Speaker 2: Thanks Carl. That's Professor Carl Tobias of the University of
• 34:26
  Speaker 2: Richmond Law School, And that's it for this edition of
• 34:29
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• 34:32
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• 34:35
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• 34:47
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