Biden's First Court Picks to Diversify Judiciary

the United States Supreme Court George Washington. Now President Joe Biden is moving faster than any modern day president to reshape the judiciary, announcing a slate of racially diverse nominees with a wide range of professional experience. Not a single white man made the list, composed entirely of women and people of color, and more than a third who served as public defenders. Joining me is Professor Leah Littman of the University of Michigan Law School. Lea tell us about

the list of nine women and two men. I think that the nominees are exceptionally diversed along several acts. I think one of the most important metrics of diversity is professional diversity. What type of career they've had thus far, it's no secrets that the federal courts contains this number of public defenders, and that it's where it has public

defenders appointed to the federal courts. Two of the three presidents nominees to the federal courts of the fields are former public defenders, so that by itself is just huge. I mean, there's something like less than eight percent of currently serving Court of Appeals judges are formal public defenders, less than three percent of district judges who are currently serving our former public senders, and two of the seven nominees to the district courts for former public defenders. So

the professional diversity is quite striking. In addition to the public defenders, you have people who have worked for the city and local governments, and so that is also notable. The nominees are also demographically diverse. Nine at the eleven nominees were women. Thirty percent of all federal judges are currently women. There have only been eight black women to

ever serve as Court of Appeals judges. All three of the President's Court of Appeals nominees were black women, including judges who would be the first and only black judges on that Court of Appeals. So the Court of Appeals for the Federal Circuit has never had a black judge. Tiffany Cunningham would be the first black judge on that circuit.

There are currently no black judges serving on the Seventh Circuit, a jurisdiction that it's crude Wisconsin and Illinois, and so Judge Campus Jackson of the Lulalu would be, you know, the only black judge on that court. So I think that you know, the nominees would diversify in a lot of ways, integrate the courts of appeal, and also add considerable professional diversity as well. Former President Trump was quite successful in helping to make the federal judiciary more conservative.

This is just the first strike for Biden, but doesn't even make a dent in diversifying the federal bench. I think these nominees alone won't make a huge dent just because they're small number. But it will make a dent because it will integrate several courts of the field that don't currently have black judges. So it's significant for that reason. It's also significant that several of the district court nominees

will be the first. It will result in you know, the first musclim American federal judge anywhere, the first Asian American woman to serve on the DC District Court, the first Black woman to serve on the Maryland District course. So I think that those are significant achievements and milestones, even if numerically speaking, these eleven nominees are not going to make a huge dent given the two hundred plus

Trump nominees. Progress of the activists had been pushing for more judges from non traditional backgrounds, as you mentioned, explain why that's important. It's important for a few reasons. One is it provides for a very different perspective on legal system.

If you have spent time representing people against the government, then if you're someone who has spent representing the government and arguing for more government power, if you're someone who has seen let's say, less salutary uses of government power, then you might be more rightfully skeptical about some exercises of government power, or more understanding about different kinds of

litigants who come before the federal court. There has also been some very important empirical research that suggests judges who formally represented corporate interests are served as prosecutors are most likely to rule against employees and against workers, and so we know that some of the professional experience is some indication about how they are actually going to decide in view pieces in the federal courts. Do you think that President Biden was thinking of the evenly split Senate when

this list was approved. Is there a possibility that any of these will be difficult confirmations? So, I don't think there's any reason to think that any of these nominees will be difficult confirmations. They are all exceptionally well credentials, very well regarded, So there's no reason to think that

these nominees will have difficult confirmations. You know they are different and that they have different professional backgrounds, but I don't think that should be a cause for a difficult Senate confirmation when it seemed like the Democratic Party and the leader of the Democratic Party indicated that's something that they value. Do you think that progressives will be happy with this list? I think that foreign initial lists they are and they should be very happy. Um, I don't

you know. I'm sure that we all have things that we would like to see in the next batch of nominees. I think I personally would like it if more of the District Court nominees had more similar profiles to the Court of Appeals nominees as far as their professional background, um and age. But it's it's a list that I'm very happy with as an initialist is that I hope other progressives are as well. Under former President Trump, there was an effort to get judges who were very young

who would be on the bench for decades. Are these judges young? So that is part of what I was alluding to when I said I hope that the District Court nominees in the future more closely resemble the Court of Appeals nominees. The Court of Appeals nominees are in their early forties or their fifties. The District Court nominees are actually on the older side. That still makes for nominees that are substantially older than most of President Trump's nominees.

He was nominating many judges in their thirties and many Court of Appeals nominees in their early forties. Very few judges were appointed while they were over fifties. So I think that perhaps future batches could involve judges who are more close resembling the age brackets from which President Trump was drawing. But still the Court of Appeals nominees from this batch are trending in that direction. Former President Obama insisted on having the A B A the American Bar

Association review the judicial candidates. Biden is not requiring that. Do you think that has any impact at all? It's not clear that it will or that it should, given patch at least one prior administration discarded the A B A rating system, and given that there's again some evidence of that rating system have historically operated to the detriment of groups who are not historically represented in the federal judiciary. And I think there are all, you know, good reasons

by the administration is not requiring abi A setting. Federal Judge Katangi Brown Jackson was on the short list for the Supreme Court even before Biden put her on this list for the DC Appellate Court, which is considered a feeder court to the Supreme Court. I think she has one very possible future Supreme Court nominee. Her background is everything that the President has been. You know, he's interested

in someone who has served as a public defender. Some senacing commission would add some needed demographic diversities to the Supreme Court. So she's going to be one of several candidates I'd imagined, but likely one of the fronts. Tell us a little more about her background, So, Gootanti Brown Jackson graduated from Harvard College and Harvard Law School. She

was an editor on the Harvard Law Review. She clerked for judges on every level of the federal court, at the District Court where she currently serves on the Court of Appeals, and then for the U Supreme Court. She clerked for Justice prior Um. She's also clerked for both Democratic appointees on the courts and Republican appointees on the Court. After clerking, she worked as a public defender. Since becoming a judge, she has served on the United States Sentencing Commission,

which creates rules and regulations defering all federal sentences. So she has really worked in a bunch of different areas. In addition to public defense and as the judge of Defense Commission, she also worked at the law firm Morson and Forester her So she's really worked in many different sectors of the legal profession and has really achieved much of what there is to chieve in the legal profession.

As well as a d C. District Court judge, Judge Jackson has been involved in a lot of high profile cases. She's ruled against the Trump administration several times, including in the case involving former White House counsel Don McGann, where she wrote that presidents are not kings. I wonder if that might cause her any problems during confirmation hearings. I

don't think that it should cause her any problems. I mean, her opinions are very well regarded, you know, in the UH, in legal circles, and so even though she's been involved in some high profile cases, the way that she has resolved them, you know, has garnered her a lot of respect. Is it helpful to have out there the names of the people who are likely to replace a justice. I

think it's a complicated question. I think we, on one hand, don't really want to turn presidential elections into judicial elections as well. You know, federal sends are supposed to be appointed as confirmed, not running for office, and putting them off the ticket I think might struct people as not a great way to run a constitutional democracy. Um. You know.

On the other hand, I think that, uh, it's probably good for people to understand that the two parties are appointing very different people to the federal court um, and so having people understand who are possible contenters, you know, under one party is then the other um. It might be helpful in that respect, But I think it's a really complicated question. In announcing the list, President Biden emphasized that this was the earliest batch of court picks by

a new administration. Is there a reason why he's emphasizing that. Is it because the President Obama was criticized for acting too slowly? Yeah? I think not only was Pugnent Obama criticized for acting toe slowly, but he was criticized because

he didn't place enough emphasis on appointing federal judges. We saw Presidents Trump and Senate Majority leaders and Senate Majority Leader Mitch McConnell places a lot of emphasis on confirming as many judges as they could, And I think people wanted to see a democratic administration values the federal courts to the same extent and with the same seal as the loss repulplicate administration is. Mitch McConnell had said at one point, I'm not leaving any vacancy open, and they

really packed the courts whenever they could. Well, Joe Biden have enough vacancies to be able to to change the courts to you know, to flip the courts back to more liberal rather than more conservative. I think that that remains to be seen. UM. A lot of it depends on whether federal judges who are currently eligible to take

senior status or retired do so. UM. Some of its depends on whether you know a Congress might explore adding additional judge ships to district judges, as the judiciary compics have called for. UM. But I think whether you know President Biden is able to make uh, you know, huge talk on the federal courts in the same way the President Trump does depends UM on those things which are a little bit outside of his control and also that we just don't know about yet. Thanks for being the

Bloomberg Law Show. Leah. That's Professor Leah Littman of the University of Michigan Law School. In a downtown Minneapolis courthouse that has been fortified with concrete barriers, fences and barbed wire, Testimony began this week in the trial of former police officer Derek Chauvin on charges of murder and manslaughter in the death of George Floyd, a death that ignited months

of protests for racial justice and against police brutality. The prosecution began its opening statement with the video seen around the world of Chauvin pressing his knee into Floyd's neck for nine minutes in twenty nine seconds. Prosecutor Jerry Blackwell said that Chauvin didn't let up eve and after a handcuffed Floyd said twenty seven times that he couldn't breathe. You will learn that on May Mr Derek Chavin betrayed this badge when he used excessive and unreasonable force up

on the body Mr George Floyd. But defense attorney Eric Nelson said that Chauvin was not to blame for Floyd's death. The evidence will show that Mr Floyd died of a cardiac arrhythmia that occurred as a result of hypertension, his coronary disease, the ingestion of methemphetamine and fentanel, and the

adrenaline throwing flowing through his body. Joining me as former public defender Krista Groschek, managing attorney of Groshek Lawn, Minneapolis, CHRISTI, what do you think of the prosecution strategy of not waiting playing the entire video during the opening statement. It was a great strategy for the practice custion. I mean, that's the most compelling piece of evidence that they have, and the way that they sort of encapsulated that center

piece was with colorful language, like the word play. They talked about how Chauvin betrayed is badge. He wouldn't let up, he wouldn't get up. We heard that over and over again. We talked about how bystanders called the police on the police, we heard about the blood choke. That video, you know, ensconced with that word play was very effective. It's a hard video to watch, no doubt. What about the defenses

opening statement and does it show the strategy ahead? Well, I think it was a foreshadowing, as most opening statements are about where the defense is going to go, and we really haven't heard much about that in some of the pre trial motions. So what we were able to learn is that the defense plans to push on this idea that because of where the bystanders who did the filming were positioned, you couldn't see what was happening on the other side of the police car. You couldn't see

what was happening with his legs. He couldn't see what the officers were doing. You just see, you know, sort of his head and shovin around her about his neck and back. The defense also talked about the whole part of the story being the fifteen minutes before bystanders started filming with Floyd in this position. They talked about the whole story being captured on a city camera perched atop

a high pole. They talked about the whole story being floyd longstanding use of drugs, his medical conditions, and they talk about how, you know, use of force is something that even police officers don't like, but it's a necessary podfit job. It was a very netered, I think, and

mindful opening. And you know, really what I think Nelson was doing was he's trying to step back the emotion that that video certainly caused hers to feel and get them, you know, thinking in their brains about common sense, the whole story. You even use some legal terms like totality of the scumstances. And then he focused a lot on causation as to those medical issues, as to being diagnosed

with COVID, having heart issues, us for the opioids. He talked about the County medical examiner's findings about how it wasn't a really clear cut case of cause of death, and he talked about how once that sort of tenuous finding was made, then prosecutors went out and shocked the case, if you will, to try to get more medical examine

our opinions because they didn't like Bakers. And so I think it was a very like I said, a very needed, a very thoughtful approach about how jurors really need to get into their brains and get out of their hearts and emotions to decide this case. So, is the central question in the case going to be what caused Floyd's death? Something that the medical experts are going to testify about. Well,

this case should be about causation. This case should not be about unauthorized use of force or or we heard over and over again on the productures opening nine nine, this case is sort of flip from the traditional case. So typically speaking, prosecutors are all about, you know, this is the law black, and why let's put the illegal questions out there and answer the illegal questions without emotions. Well it's not flips. Prosecutors are talking about all of

the things that amount to making an emotional decision. Police brutality. They did say that it shouldn't be about race, but of course everybody in there is thinking that's what it's about. So we see the prosecution talking about a lot of things, but they didn't talk a whole lot about causation. They referenced it briefly and that he's been a drug user,

but that's not what caused its death. The defense is arguing that that is in fact what you see here, and that's based upon medical evidence, based upon what was found during the course of the autopsy. One of the things that's interesting about Baker's autopsy is that his heart was so unremarkable. The pictures weren't even taken of George Floyd's heart, which again is like a causation factor there as well. So we should be talking about causation, and

that's what the law said. If Derek Chavin didn't cause his death by the actions that he took, whether they're distasteful, whether we don't like it, whether we think that we have a broken, biased, racist system, he didn't cause the death. He's not guilty, and that's what this trial should be about. And the focus really should be on what the experts have to say and which experts the jury believes them one.

So with the question of causation at the forefront, this is going to end up being a battle of the experts, right it should be. It shouldn't be about all this emotion. It shouldn't be about betraying the grade. It shouldn't be about a blood show cold in the number of minutes. It should be about causation. And the experts are the really only ones that can educate the jury about whether or not the state can prove that case. The defense in the opening statement said that Chauvin did what he

was trained to do. Do you think he's going to try to make the argument that this was something that was, you know, an authorized show cold or whatever. Is he going to try to make that argument? I think so, And I think he's going to do that based upon a reference to that May arrest of flood, where he acted really similarly and you know, it was really out of control, based upon what seems to have been at that point his use of fentanyl, the very same fentinel

till a year prior. So then yeah, I do think they're going to bring in information and testimony that the only choice in an officer has is to try to subdue that ARRESTI to avoid potential harm to direct and or others. So I do think that's exactly where the defense is going. Is that wise because if you look at that prior incident, in that incident, the police talked him down, they arrested him without any real incidents. So

does that backfire on the defense. Well, I think the defense is duck with the fact that this is what children chose to do under the circumstances. Things that are different invent from the May nineteen event is that we do have video footage where there was fifteen minutes of back and forth not wanting to get in the car, the car I think, actually moving. It can be seen in the video that the police vehicle was moving because

there was enough resistance comployd at that time. So I think there is a difference in how those two events played out. And it was at that point when things were starting to ramp up that Cholvin shows up on the scene. He's the senior officer. He decides that he could be safe in the situation where Mr Floyd is experiencing, you know, some kind of delirium and given his size, could be dangerous. So I think the defensive stuck with that.

I think they have to work with that, and I think on cross examination they can deal with the police chief criticism of how Chauvin behaved from the point that of course the police are going to endorse it. Now to do so, would you know, implicate many others, not just Show, but everybody you know pushed that, and it's doing what they can do to distance and stuff from Show then right down to the use of force experts and to people in the Minneapolis Police Department. Nobody's aligning

with him. And you know, I think Nelson can argue that those people did that strategically for themselves and for the department. Is there anything remarkable in the defense or is this the kind of defense that we've seen before in cases where police officers are defendants. I believe that in these cases that have come before, you know, we've seen a lot of not guilty verdicts, a lot He's seen a lot of officers not even charged, like the Eric Garner officers, they weren't even charged, and you know

that's a similar case. And so yeah, I believe the defense finds themselves in a position where they have to say, given their specific training, given their experience, given what they know of the risks and dangers of encountering people under the influence on the street, that they need to take precautions,

and they make these split second decisions. Now, the prosecution is anticipating the argument you heard in the opening statement, right, there was no split second decision here, And they break down the second and say there was of the five sections that were available for split second decision making, there was no split second to anything as a long sort

of prolonged, continued decision. But to answer your question, I believe the strategy is un effective and I think it's what's allowed for officers to receive not jokey verdicts and no charges at all. The judge allowed prosecutors to add a third degree murder charge to the charges of second degree murder and manslaughter. Does that give the jury a compromise position or a middle ground if if they can't come to a decision on the more serious charge. It does.

Third degree the prave mind murder is an interesting charge in that two months ago, it was not a viable charge based upon Minnesota's case law hundred year history of applying that charge. Generally speaking, that charge was only appropriate when a person drove a hundred miles three crowd of downtown streets, whether their actions were just the praved mind crazy, but they weren't directed at one person. There was a police officer, Mohammed Nur who was convicted all the depraved mind.

When that happened, defense attorneys and in most people engaged in leave the work in the state felt that at the time he appealed it to the Pelot Court, that would have been overturned because it just didn't fit, didn't fit the definition of third degree. While our Pelot Court chastised a Hill for throwing that charge out, and even in light of that history, the court went to great lengths to they know what should apply, and they did

that very close in time too. When Mr Schaubin was going to trial, they instructed Judge k Hill, essentially um that he must put that charge back into play, and he sort of the grudgingly did so, even though Mr Nura is appealing that to the Supreme Court, and we don't have an answer as to what will happen on that case. And then if there is a conviction here, what will happen on this case? And so yes, it becomes an easier charge for the jury to use um

in terms of putting a conviction on Mr Chauvin. And that's because they don't have to find that he intentionally did anything to say he was out of his head, he was the praise, he was acting crazy, he wasn't thinking, and he did something that he shouldn't tell that. Still they self to prove that he caused the death though by those actions, but it does make the first part

of their finding easier. The secondary charge requires that the state proved that Mr Chaubin had intense to assault, that he had intent to make it some Mr Foye couldn't breathe, and I think fact it's harder to do when you, you you know, start looking at Nelson's arguments. He was doing what he was trained to do. There was resistance of

the arrest. So if the jury isn't of the mind to say he had the intent to assault, then the third degree murder charge becomes much more viable because the jury can just say, well, he was out of his mind, he was doing something you know was imminently dangerous to life. We know that, and it caused the death of Mr Floyd.

Now again I stressed, they still have to believe that what he did cause the death, and and if in fact they can't make that finding, and even with a third degree, they should return with a verdict of not guilty. How effective are the prosecution's first witnesses, most of them people who were watching what happened. I think it's a

good move for the prosecution. Is sort of this lumping up of emotion, right they started with the video, can't get any more intense than that, and then they're bringing the jurors to the scene to where this man died, and they are seeing that through the eyes of these witnesses who are obviously very emotionally moved, who still you know, are exhibiting emotion on the stand. I mean, their whole case. The centerpieces the video, and it's ensconced by the experience

and the emotions of the people that were there. So I think it's a it's a very consistent and smart way for the prosecution to put their case in. It's very effective. Thanks Krista. That's Krista Grosseek, managing attorney of grossek Law. And that's it for the sedition of The Bloomberg Law Show. Remember you can always at the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg

dot com slash podcast slash Law. I'm June grosse O. Thanks so much for listening, and placed it into The Bloomberg Law Show every week night at ten p m. Eastern right here on Bloomberg Radio