This is Bloomberg Law with June Brusso from Bloomberg Radio. Constitutional amendments to protect or expand abortion rights passed in seven of the ten states where they appeared on the ballot yesterday, including in some states that voted fort Donald Trump. Abortion rights amendments passed in Arizona, Colorado, Maryland, Missouri, Montana, Nevada, and New York, but failed in Florida, Nebraska, and South Dakota.
It's a winning record for abortion rights ballot measures since the Supreme Court ended the constitutional right to abortion in twenty twenty two fourteen to three, but Tuesday did end the winning streak, joining me his healthcare attorney Harry Nelson, a partner at Leech Tishman Nelson Hardiman Harry. Abortion rights ballot measures passed in four states that voted for Trump. How do you reconcile that, considering his having bragged about getting Roe v. Wade reversed.
It's clear that abortion rights and you know, reproductive health access have a majority of support in pretty much every corner of America, except that the issue is not the driver in this election that it was in the twenty twenty two midterms, for example, and that clearly voters who supported Trump were you know, willing to see his abortion policy and politics as distinct from the broader anti abortion movement.
So it does seem like abortion was not the powerful issue that it was in the previous election cycles since the repeal of Roe v. Wade, even though it still clearly garnered significant support in most of the places where it was before.
The voters Missouri, Trump won fifty eight point five percent of the vote, but the state voted in favor of a constitutional amendment protecting abortion rights, and Missouri's abortion law is very strict right now.
Yeah, Missouri had a near total ban on abortion, and so this is a significant decision. You know. I think one of the things we can certainly take away is it seems that this election, there was a huge gender gap in this election, but that many men who sort of you know, propelled Trump to victory in the presidential race also supported abortion rights and voted, and this was not a victory for anti abortion activists there. So I
don't find that result surprising. It's clear that, you know, President Trump opened up some space between himself and the anti abortion movement, and it's also apparent that the driving factors that propelled his victory had less to do with reproductive rights than other issues when you see this kind of a slaur result.
Now, Arizona, which had the longest ballot in state history. It took up like two pages, and apparently, you know, momentum was gained there because the state Supreme Court ruling in April found that the state could enforce this strict abortion ban from eighteen sixty four.
Yeah, that's the court decision earlier in Arizona. Obviously shocked voters there. And so yeah, Proposition one point thirty nine, it protects the right to abortion in the state constitution itself, which is really significant up to the point of fetal viability, which replaces and gives a longer period than the fifteen week ban that had been there. So that's a significant move on the part of Arizona. And again, you know,
not that surprising. In general, the victories that the anti abortion movement has had have come from court for the most part, but certainly Arizona is an example of voters, you know, reflecting the same trend that we've seen in the previous election cycles since ROW was repealed, and coming out to ensure protection for access to abortion.
So Colorado's measure, besides enshrining access to abortion, also undoes an earlier amendment that barred using state and local government funding for abortion. So what does that mean?
Yeah, so that's e sic hint in that it really opens up not just access itself, but funding, you know, reimbursement for providers to keep professionals who are working this area, facilities open, and ensuring access to the state portion of Medicaid funds. So one of the issues that we may see come up now that it looks like we're going to have a Republican control over both parts of Congress and the presidency is potentially more restrictions on federal funding.
So Colorado seems to be the first state to ensure that there's going to be state funding and we're talking here mostly Medicaid funding and other facilities working on special grant programs in this area. So I think that's a harbinger of a trend that we're likely to see in other states, particularly as we see a likelihood of more federal restrictions.
So in Maryland and Montana, abortion is already legal until viability and in Nevada up to twenty four weeks. So what difference does the ballot measure there make in those states.
In Maryland, it was a constitutional amendment, which is significant because it establishes a much more permanent right than a mere ballot measure. You know, obviously, when something is placed into the constitution itself, it establishes it as a fundamental a more fundamental right, and it forces court to sort
of put a privacy on that right. And so recognizing a right to abortion as part of a broader right to privacy really sets a direction and state policy that's going to reverberate much further in the future, and not only in court review, but with regard to future ballot measures. It sort of just sets a higher order of magnitude of priority on the question. And so it's obviously it's
a better place to be right. We see some states that have moved to pass ballot initiatives because those are the quickest way to get things done, just to present a measure to the voters where state law allows. But actually amending the state constitution really is a fundamental way to give more security to the principle of a constitutional right to reproductive freedom.
So New York's measure was a little different. It didn't even mention the word abortion New York, it was.
A supposal that prohibited discrimination based on pregnancy outcome, So it was not a direct abortion rights New York already has an abortion rights law. But it's interesting New York kind of went a step further in a different direction, right, Colorado went further on funding on public funding, but New York went further on identifying a possible risk of discrimination that an employer could, for example, make an adverse decision
based on pregnancy outcome. So it's sort of to fight and broadened the scope of protected rights beyond the right to the abortion itself, which was already in place.
Just because they passed these amendments, that doesn't mean that the abortion bands in these states are suddenly off the books. It requires some court action, doesn't it.
Like we've seen, you know, with abortion going back for the last fifty years, a lot of times these laws stay on the books, and we're actually going to need test cases to come up and have courts formally rule, you know, on the status of some of these old laws. So there are a couple of places where these laws are going to change things, but we're still going to have to see cases filed a little bit of anxiety and stress for the you know, providers and the patients
who are in those cases. But for better or worse, that's just the process that we're going to see go forward here.
I mean, can we assume that judges are going to follow the amendments and not put their own sort of stamp on it.
No.
I think the guarantee of abortion rights is something that should give security here. I do think that while we do see some opportunism from judges who feel strongly on the anti abortion side, they can't do very much given the appeal structure, and obviously appellic courts put the issue before multiple judges and hopefully ensure that the law actually gets followed. So I don't think anyone should worry that these laws are not going to actually be you know,
implemented and enforced. It's just we're going to have to go through a process to actually make that happen.
And abortion amendments did not pass in Florida, Nebraska, and South Dakota, Florida, which unusual is that most voters supported the Florida measure fifty seven percent, but it fell short of the sixty percent. So what's happening is a minority of voters are able to keep the abortion ban in place.
Yeah, that's a very surprising result. You know, obviously came very close. It's good news, right that fifty seven percent of the voters support abortion rights, but obviously this sixty percent threshold that Florida law requires to amend the constitution was a barrier. And so we're stuck with the current Florida abortion ban, which is a six week abortion ban, very early, and that's a problem. So Florida has more work to do and we're going to see the fight continue.
The fact that it was fifty seven percent, that it came so close makes me suspect that we're going to see this issue return on the ballot in midterms in election cycle that is likely to draw out a different voting pool in midterms. That's pretty close. That's a very narrow margin of defeat. So while it is a victory that the anti abortion activist can claim, it's a pretty narrow victory and I don't think it's one that will
will hold up. The problem is, for at least the next two years, we're stuck with the six weeks ban in Florida, and also.
The governor there, Ron DeSantis pulled out all the stops against the amendment, having election police go to voters front doors to question them about signing a petition to add the abortion referendum.
He had a website.
I mean, he really went out of his way to try to get that defeated.
Yeah, it's a little bit surprising that the Santis went to such extreme measures. But you know, who knows what his plan is. You know, he came away from the presidential election kind of seated and sailed, and obviously someone is advising him that this is a winning place for him to be tough. I think the broad result in the fact that it's still got fifty seven percent of voter support, should hopefully raise questions with whoever pushed him
on that strategy and give him pause. But very surprising that he made such a stand on this issue.
So now, in Nebraska, it was the first time in the state's history that conflicting petitions appeared on the same ballot, and I'm wondering if that had anything to do with the defeat of the abortion measure.
Yeah, I think there's an issue of confusing the voters with competing ballot measures here, right, the one that was approved was the one that enshrines the current twelve week ban with an exception for rape for incests into the life of the mother, but the broader measure that would have added the right to abortion access to the state constitution failed. I do think there was an element of, you know, voters going for a more modest choice when
presented with two alternatives. And I also think that here too, this election drove out a different voter base than we're likely to see in the midterm elections. And I think that this is not the last word in Nebraska. So that while this is a setback certainly for the you know, reproductive health access advocates, it was an unfortunate kind of competition and one that has flowed things down in Nebraska.
Now.
South Dakota is a state with a strict ban on abortion, and the Abortion Rights Amendment failed, and it was a decisive fail.
Yeah, that's probably the biggest victory for anti abortion activists South Dakota as one of the most restrictive. What was rejected was a constitutional amendment there that would have put in a trimester based system, which was what Rote was based on, essentially, with no ability to limit abortion whatsoever. In the first trimester, you know, very much tied to wrote in the reasonable regulation in the second trimester and only you know, heavy regulation or prohibition in the third trimester.
And so the problem is that the defeat of that amendment really leaves South Dakota as essentially a state with a total ban. And I do think it's definitely the biggest victory of this election cycle for the anti abortion movement. I suspect that whatever you know happens next in South Dakota, that there will be more activity to protect and restore rights to avoid, but that it will probably be a more modest initiative. And the result here, by the way,
was strong, right, sixty one percent. Again, so it looks like the likelihood for South Dakota is that any future challenge will have to be a more modest approach and not one that tries to completely reinstate Roe v.
Wade.
What kind of.
An impact can Trump as president have on abortion rights in the country.
Well, so we've heard a lot about whether there's going to be some kind of national position created to coordinate abortion restriction. Obviously, you know, we have enormous amounts of federal healthcare dollars at stake through not only you know, Medicare Medicaid, but through all the various federal funding programs. So I think there is room if Trump is inclined to be you know, supportive of anti abortion activists. Those
are certainly two major ways. The thing I'm watching most closely is that we avoided a problem with the FDA pill that was challenged mifipristone, the abortion pill that activists in Texas got a federal judge to ban, and we saw a whole drama there that the Supreme Court put to rest. But now the biggest question to me is whether you know, Trump's or Trump's people are going to try to make the FDA a site of more problems
for telemedicine abortion. We already know telemedicine abortion is with mifipristone is now something like sixty percent or more of all abortion, you know, which has really transformed it to a much more private matter, you know, where women don't have to come to clinics to have a procedure. They can choose the time and place where they take the medication and have much more privacy in the process itself. So to me, the sort of scariest possibility is the
politicization of the FDA. It's going to be very interesting to see what happens with health policy under Trump. A couple of years ago when he was elected in twenty sixteen, I co authored a book making a lot of predictions, and I learned my last and it's always dangerous to
get ahead of what's going to happen here. But I'm definitely watching with data breathless see how much the FDA gets politicized or hopefully whether you know, will allow the experts who are policing the safety of our drugs and other medical devices supplies do their workout interruptions so that remains you soon, Thanks.
So much, Harry.
That's Harry Nelson of Leech Tishman Hardiman Nelson Coming up next. Will the Third Time be the Charm? For Johnson and Johnson? You're listening to Bloomberg? Will the Third Time be the Charm? The fate of Johnson and Johnson's latest push to use bankruptcy courts to end thousands of cancer lawsuits tied to its iconic baby powder now hinges on a high stakes
trial in January. A federal judge in Houston will decide early next year whether Jay and Jay's bid to quickly settle the claims with an eight point two billion dollar payout can move ahead. A lead attorney for some whole out claims of vote by claimants in support of the deal was rigged, a charge that Jay and Jay denies. Joining me is an expert in mass torts, Elizabeth Birch, a professor at the University of Georgia School of Law. What are the stakes in this fifteen year long litigation?
Well, I mean, there are certainly stakes for Johnson and Johnson in particular, but I think you know, they're really even bigger stakes for how we handle these mass harms and whether we handle them through bankruptcy or whether we
handle them through Article three courts. You know, So, even as Johnson and Johnson is trying now for the third time to in my opinion, sort of ram this bankruptcy through the Article one system, we have questions about whether bankruptcy can become kind of a court of first resort rather than a last resort for handling massive tort claims like this.
Will you explain how Johnson and Johnson is trying to resolve the claim using a legal strategy known as the Texas two step, where corporate shell was created to absorb the cancer claims and then file for bankruptcy, and that was rejected in New Jersey.
Sure, so it actually started off by filing in North Carolina, which had fairly friendly case law to them. In the Fourth Circuit, that case was transferred up to New Jersey, which is in the Third Circuit, and then back in I believe it was twenty twenty three. The Third Circuit found that the filing by Johnson and Johnson unit, which is called LTL, was in bad faith essentially because the TALC unit wasn't sufficially distressed. Instead, you know, it had
a funding source, which was Johnson and Johnson. So it didn't pass the test of being filed in good faith and it was dismissed. And then not long after that they filed a second time, and then now again a third time. But this one is down in Texas.
I mean, what makes Texas different?
Well, Texas is a little bit different. So there have been unfavorable rulings in this regard in both the Third
Circuit and in the Seventh Circuit. There has been a favorable ruling in the Fourth Circuit, which is where Johnson and Johnson originally tried to go by filing in North Carolina, but yet to be determined what the Fifth Circuit will do to this, although there is some reason to think that maybe Fifth Circuit law would be a bit more favorable to Johnson and Johnson than the Third or the Seventh Circuit would.
It's before a bankruptcy judge in Texas. The plaintiffs or some of the plaintiffs tried to send it back to New Jersey, but the judge rule that it could stay in Texas.
That's correct. So that was the most recent ruling that I know about. Was the judge in Texas, Judge Lopez, which is who is a bankruptcy judge, said that the case did not need to move back to New Jersey and that he would be able to handle the case quickly and fairly.
So this time Jay and Day went sort of prepared. It got a pre approved vote of the plaintiffs.
Supposedly, so you know, this is what we're hearing and what we're reporting. So in order for a bankruptcy plan to go through, there are two ways to do it. There's something called a pre pack, which is where you gather the votes beforehand and when you file the bankruptcy plan, you sort of have all your ducks in a row
such that the plan confirmation goes through very quickly. And then there is just sort of the ordinary Chapter eleven reorganization where you're trying to get the requisite votes as you go here, they're saying that they have the requisite vote. There is a pretty big split among the plaintiff's law firms as to whether they are in favor of this
plan or against this plan. And there have been, you know, a lot of campaigns on both sides trying to get TOUP claimants to vote one way or the other, depending on which firms are spigned with.
And now one of the plaintiff's lawyers, who is a lead attorney for the holdouts, Andy birch he accused another plaintiff's attorney and the consulting firm hired by Jay and Jay to run the pre bankruptcy vote of illegally switching eleven four hundred and thirty four votes from reject to accept.
You know, I know that Andy Birchfield and Mike Papantonio have been very vocal in opposing the town bankruptcy plans, whether it was the first, the second, or the third, and certainly with regard to the third So you know, in some respects, it's a it's a very interesting way to see what's happening with this risk and the planeff Bar. There may have been evidentiary hearings on that motion. I have not seen those, so I'm not sure about what the allegations are or whether they are true. The judge
will ultimately have to decide that, you know. But even without the plaintiffs bar themselves getting involved, you have the US Trustee who is against the plan, and so it will be interesting to see what happens. I suspect that we'll see an appeal either way, you know, regardless of how many plaintifs ultimately vote in favor of the plan.
I mean, for plaintiffs attorneys, the longer they litigate and the more cases they litigate, the more compensation they get in attorney's fees.
Well, it really depends, you know. Oftentimes you'll see retainer agreements that are staggered in terms of the amount of work that the attorney has to put in. So you know, if you settle before you ever file a complaint, you get a smaller percentage of a contingency fee than you would if you had to file a complaint or ultimately file an appeal. I haven't seen the retainer agreements in TALC, so it's hard to say, and I suspect they vary
from firm to firm. But one of the concerns I think that I have about resolving mass towork cases through the bankruptcy process is that you don't always have the differentation between different types of planes. So, in other words, bankruptcy courts really aren't equipped to try these cases and to say this plaintiff should get this much and that
plantiff should get that much. And oftentimes what you have is just sort of a you know, everybody gets a haircut, and oftentimes it's not a very good haircut, And so claims that might be weaker from a causation perspective could be getting the same or more than claims that are much stronger from a causation perspective. So that's the sort of big concern coming out of bankruptcy.
Now, if you don't have a global settlement, I mean, how long would it take to get these cases litigated and how long would the plaintiffs have to wait to get any money?
Well, I mean that's the flip side argument. Is that you know, at some point a dollar today is worth a lot more than a dollar, you know, five ten years from now. And for many of the plaintiffs, I think they need the money sooner rather than later, which is why I suspect you see some support for the plan. The other side is that, you know, not all plaintiffs are in it for the money. A lot of them are in it to make their voices heard, to have some sort of change in the system. Of course, TALC
is no longer. We don't have baby powder on the market anymore. Johnson and Johnson quietly pulled baby powder from the shelves. They didn't actually take the baby powder off the shelves, but they stopped restocking it in the midst of COVID. So you know, at some point we would have statutes of limitation that kick in. The difficulty here is that a lot of these injuries take a long
time to manifest. So any of the cases that are alleging that they have some sort of as bestice exposure and as best as related diseases would take you know, between five to twenty to sometimes forty years to actually manifest. So yes, to answer your question, we would certainly have to wait a lot longer to get any sort of compensations to the plaineiffs if the bankruptcy plan doesn't go through. But there's a question about who gets what and why and whether that's going to be fair.
What is Jay and Jay offering in this settlement. Does it just twelve billion across the board to claimants or you know, I haven't.
Seen the numbers or what the breakdown of the numbers would be. You know, certainly a portion of that will go to the attorneys, the ones who have handled this case. And I don't know how much of that is ear march for the lawyers. I'm not sure how their contracts would be affected by the bankruptcy process. And you also have a question about how much of that money is
going to get eaten up in administrative costs. So oftentimes what we see is kind of the sticker price of the settlement fund ends up being a good bit smaller once you figure out who gets what and why and tell.
Us about the hearing before Judge Lopez in January.
So that is the hearing about whether to accept the Chapter eleven prepackaged plan. That'll be the next sort of you know, big moment to determine whether the plan is going to proceed forward or whether they could ultimately get derailed early on.
Do you think if this plan goes through with the you know, bankruptcy part of it, do you think that that could encourage other companies to try the same thing.
Well, you know, we've really seen an EBB and a flow. You know, the short answer is yes. You know, if it works for Johnson and Johnson, then you know, I worry that bankruptcy is going to become the new go to plan for resolving these major mass tort cases. You know, but we have seen a lot of hesitation by the Third Circuit and these early tout cases, as well as the Seventh Circuit and the Free and Military airploig cases.
And then of course, you know, we had the Supreme Court in Harrington versus Purdue Pharma say that you couldn't allow for these third parties like the Sacklers to get the protections of bankruptcy without filing bankruptcy themselves. And my understand of the plan here is that you have a little bit of that happening in the Red River Tout case. So it's yet to be seen exactly what's going to come out of the January hearing.
Can you compare the taut litigation to other mass tort litigations in the past, Yes and no.
So certainly mass tort litigation starts in the bankruptcy proceeding with the Augustot cases. In fact, section five twenty four G, which is the as bestest code for bankruptcy, came out of the asbestos litigation, and it actually started early on with the Johns Manville as vestice proceedings, and then Congress enacted five twenty four G to try to help streamline
the process. But what we're seeing with the talent cases is really a new use of bankruptcy for a parent company that doesn't really qualify as bankrupt, but using the bankruptcy process through kind of a piecemeal approach with corporate laws and in a way that seems maybe not particularly fair. And I think that's the concern that we have that
we don't have really an insolvent parent company. We're using the bankruptcy process to try to shed mass toward liability, but nothing else, you know, at least without these sort of clear guardrails to prevent any sort of bankruptcy abuses and preserve you know, traditional trial process within the article
three courts. I worry about these cases. You know, we're going to have less information production coming out of the litigation process, less law development, less judicial review, and potentially less due process and opportunities for the plaintiffs themselves to have their voices heard.
Thanks so much for those insights, Elizabeth. That's Professor Elizabeth Birch of the University of Georgia Law School. Turning now to the federal courts, half of the twelve circuit courts have a majority of judges appointed by Republican presidents, up from a third eight years ago, and some of the most historically liberal benches, including the San Francisco based US Court of Appeals for the Ninth Circuit, are trending rightward
with only a narrow liberal majority. So what will happen when Donald Trump has another four years to appoint judges? Joining me is an expert in the federal judiciary, Carl Tobias, a professor a professor at the University of Richmond Law School. Let's start at the top with the Supreme Court. Do you see any changes on the court with Trump in power?
Well, it's possible, but I think unlikely. The two possible people who might resign or step down or retire are Alito and Thomas, and they're really acendant right now, so why would they want to step down. They also seem very independent, and I don't think anybody is going to persuade them to do that. If they don't want to do it, it's their decision. And so it's not clear to me at all that there'll be any changes there.
And I think that Thomas once said that he was going to die on the Supreme Court in order to get back at the Liberals.
Well, as I said, they're ascendent right now, and they're not that old. I mean, they're in their mid seventies, right, and so we're accustomed to having justices who serve for life. I don't know that there will be any resignations in the next four years. It seems unlikely to me.
Now, let's talk about the circuit courts.
Half of the twelve circuit courts have a majority of judges appointed by Republican presidents, up from a third eight years ago. Trump tipped the ideological balance of the Third Circuit, which is based in Philadelphia, the Eleventh Circuit, which is based in Atlanta, and the Second Circuit.
Based in New York.
But President Biden wasn't able to replicate his success with appellate courts in.
Terms of numbers, that's true. And in terms of tipping as you're suggesting or flipping, I think he did flip back the second circuit right, but not the third as you say. Though if Mongy is confirmed it it becomes very close, maybe tied, and so we'll see. He I think will still confirm something like forty nine, perhaps maybe fifty,
and Trump confirmed fifty four. So I think that's a pretty substantial success given how many seats vacancies were saved in twenty fifteen sixteen for Trump by McConnell and the Republicans when they had the majority and basically just shut down the process for the Obama nominees in those last
two years. So it shouldn't be surprising. But now the Democrats have returned the favor because it may be that there's only a few and maybe only one or two appellate vacancies available for Trump at least at the beginning of his tenure in January. But there are of course eligible appellate judges who satisfy the rule of eighty. They're sixty five and have fifteen years of experience, and they
could assume senior status. And I think there are a couple of dozen of those who are Republican appointees and five or so who are Democratic appointees. So some of them may decide to assume senior status, but it's not entirely clear.
And so the death or retirement of a Democrat an appointee on the Second Circuit or two on the Ninth would flip those courts to a majority of Republican appointees.
Guests could do that. Of course, those are big courts that have large numbers of members and many senior judges. But you're right, and that would be important for the en banc Court, of course, as well as for three judge panels.
So the Ninth Circuit got a reputation in the eighties and early nineties, you know, as being this liberal court, and even you know, till recently, it was how many times was the Ninth Circuit going to be reversed by the Supreme Court. It was always the top circuit to be reversed until recently. But even that court, though it's majority Democrat appointees, is not as liberal.
As it used to be.
That's right. Trump, I think appointed ten people to that court, and it's a twenty nine judge court, and so that is making a difference, I think, and moving a court back to the middle, if you will, there may be opportunities because I think some of the Republican appointees on that court now, especially Bush appointees, are eligible for senior status and may take it.
So Trump would more likely with the Circuit Court succeed in making in making the Republican appointees younger, rather than flipping to more Republican than Democratic appointees.
Well, I think it depends on what he wants to do and who is advising him, and the vacancies that he has. And I don't think the tradition, such as it is of resigning or taking senior status with the president of the same party has appointed you, necessarily holds
beyond the Supreme Court. So I think we have seen in modern times that in the last decade that often judges tried to honor that if they can, and that reflects some greater partisanship on the appeals courts then maybe was the case before, because of course the appeals courts are the decision makers. In ninety nine percent of cases.
Let's talk about district courts.
What do you see as the outlook there for Trump?
Well more in terms of numbers, of course, but of course they're six hundred and seventy seven judge ships at the district level and only one hundred and seventy nine at the appellate level, so there are more possibilities there, though. I think Biden and the White House have committed to confirming as many people for the districts as possible, and I think that the number will be something like thirty or maybe even twenty if Biden confirms all the people who are on the floor now or close to being
on the floor and trying to eclipse Trump. I mean, they're committed to topping the two hundred and thirty one circuit and district appointees of Trump, and they're closing in on that, and I think that's what they'll do in the five weeks of the lame Duck that starts on November twelveth.
We've talked before about how the Trump appointees were often ideological picks rather than being picked because of their legal acumen. So what do you think in this second term? Will it be even more so.
Well, it's possible, and there have been a number of articles in the legal press suggesting that the Federal Society picks from Leonard Leo are not sufficiently conservative and so calls for the people to be basically loyalists for Trump, which is I think his view, and so that's what some people are concerned about, and there's been a number
of articles to that effect. Depends partly on the majority and the size of the majority in the Senate and whether Democrats can have any Republicans who will vote against Trump's people who he nominates, and how many steets he actually has. So some of that is just, you know, contingent on a lot of different factors, and so it may not come to pass that there'll be that many
people who move through. Also, the situation this year was particularly difficult for Democrats to hold the razor thin majority they had, so something like twenty three seats were up they were defending. Well that's exactly the number that or something very close to that, which Republicans will be defending in twenty twenty six. So the majority may be short lived in the Senate, and so we'll just have to
see what happens there. So that's a lot of contingencies, and especially whether the GOP appointees on the bills courts will choose to step down. Some may for age or health reasons, but we don't know how many that'll be. I think they are about three dozen who are eligible. Many contingencies operating now, and we just have to see how that works. The new Chair of Judiciary will be Chuck Grassley from Iowa, who of course have chaired in
the four years of the Trump administration. So he will take the reins of that committee over from me.
He's ninety one years old.
Yes, but still going strong apparently, and I think in his eighth term. And he does have the history. Of course, he's the one who created the circuit exception that Trump was able to use, but he also has been there and seeing how that can be detrimental, and so Durbin has retained it. He said, we're not having one rule
for Democrats in a different rule for Republicans. Actually, this year there was a big debate in committee when the North Carolina Senators were upset that the White House had put somebody up as a nominee they didn't want in North Carolina. Tom Tellis called for regular order, a return to regular order, and Durmann said, yes, absolutely, Well let's do that after the election. So we'll see if that comes to pass.
And what do you think will happen in the lame duck session.
Biden and the White House are committed to confirming everybody who is in process, and that would be five appellate nominees and around twenty more district nominees and that would allow them to eclipse Trump's two thirty one in his term. And that's the goal and they're committed to it, and they have five weeks to do it.
Well, see if it can be done. Thanks so much, Carl. That's Professor Carl Tobias of the University of Richmond lost its cool. And that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, Slash Law.
I'm June Grosso and this is Bloomberg