Biden's Growing Classified Documents Dilemma

council for this matter. Those extraordinary circumstances began with President Biden's lawyers finding classified documents in his former office at a Washington think tank on November, two documents that should have been turned over to the National Archives. A second set of classified documents was found in the garage of his Wilmington's home on December and Biden's response was rather glib. But by the way, my corvette in the lack karage, Okay, so it's not like you're sitting out in the street.

And as late as this Thursday, yet an another classified

document was found in the library of his home. The initial investigation by the Justice Department has been ongoing since early November, when Attorney General Merrick Garland assigned John Laosch, the U S Attorney from Chicago and a Trump appointee, and laosh determined that further investigation by a special counsel was warranted, so, for the second time in two months, Garland appointed a special counsel to investigate the possible criminal

mishandling of classified documents by a president. The document authorizes him to investigate whether any person or entity violated the law and connection with this matter. John her the former U S. Attorney from Maryland and also at Trump appointee, is the new special council. But White House Press Secretary Kareem Jean Pierre says his investigation will show that no

crime was committed. We are confident that a thorough review will show that these documents were inadvertently misplaced, and the president and his lawyers acted promptly upon discovering of this mistake. My guess is national security expert Brad Moss, a partner Mark Zad Brad, what does the appointment of a special council here tell you about what the U S. Attorney

for Chicago found in his investigation. So it's difficult to take too much from it, other than to say it appears more than likely there was a least enough evidence to raise concerns for the U. S. Attorney North The District of Illinois, regarding how the documents were originally stored in these different locations, and the extent to which efforts were never made to ensure that any government records in general, and particularly classified records, had been returned to the National Archives.

That doesn't necessarily mean there is sufficient evidence to charge anyone with a crime. But given the political sensitivities of the issue, given that involves the current president and his staff of the ongoing Special Council probe in the former President Trump, it's not surprising that Attorney General Garland decided to appoint this new special Council specific to this issue. But this is a criminal investigation, and for criminal charges there has to be an intentional or a willful act.

It's not just accidental mishandling of classified documents, you know, like sloppy housekeeping. So does that say that they're looking at something that was intentional rather than just inadvertent. It's tough to say. It makes me think there might be more to this than just accidental mishandling. I don't know who it would be by. I don't see any necessarily any indication that if there was intentional mishandling, or if there was any instruction that was done by Mr Biden

as opposed to one of the staffers. We'll have to let the facts play out on that one, but I think this is a just parmament, particularly Attorney General Garland, just playing it extremely safe, recognizing the politics of the moment, recognizing that Donald Trump has already filed for a third bit for the White House, that President Biden is likely to file for his reelection, and that the nature of the moment requires pulling out all the stops, for lack

of a better phrase, to protect the institutional integrity of the Justice Department. By no. He says he takes security seriously. But they've discovered documents in his old office, in his garage, and in the library, and that was just discovered on Thursday. I think it speaks to how even those who we assume are the more careful among us will make mistakes.

And that's what needs to be discovered here is once this a set of mistake, was this loppiness by the staffers to put this together or was there something more nefarious? Was there a more deliberate intent by someone to remove these records to these locations, and was there any effort to conceal that from the government. That's what I think will be the distinguishing point between this simply being administrative flap on the wrist to somebody, as opposed to criminal charges.

And that's what got Donald Trump in trouble was not the original mistake of the relocation of the records, but the obstruction and the concealment of those records. How are classified documents supposed to be handled should they even have been in the Vice President's office for any length of time? I mean, aren't they supposed to be handled in a special place? So yeah, so depending on the level of classification, there may be particular locations they're never supposed to be

removed from. But let's be clear, Wow, Joe Biden was vice president, these materials would have no doubt been brought in by the relevant security officials as part of briefing materials, as part of information that they need to review in advance of certain meetings. That happens all the time. The question is who brought them there and why were they left behind? That can be done so long as it was in the proper location at the Vice President's residents But the issue of how did they wind up at

the think tank is the unresolved question. It should never have gotten there in the first place. That is a problem. That is a breach of security. Whether or not there's any criminal liability is what does not appear to be lining up at the moment with respect to President buying because of the proper actions to it. Turning, this happened November two, so right before the mid terms. Shouldn't have been disclosed to the public at that point. There was

no legal requirement for anyone to notify the public. Just Department certainly doesn't comment on ongoing investigation, so they weren't going to tell anybody. The National Archives didn't have any need to at the time because they had already referred things over the JUST Department, and the White House had no obvious desire to do so, nor were they required

to do. And let's remember the ongoing saga at mar Lago went on for months and months behind the scenes, and no one in the public knew about it, because they're not supposed to be talking about that stuff publicly. We didn't know about the extended negotiations back and forth to get the initial back of documents or the grand jury subpoena that was enforced in June, there was a sworn declaration given. At the time, we didn't know anything about that until August, once there was finally a search

warrant executed. That's when we learned all the details. And so there was no indications for the Just Department, who have publicly acknowledged that this was going on in the days leading up to mid terms, would have been political of interference by the d o J on behalf of the Republicans at that point. Do these incidents show that there needs to be some reckoning about how classified documents are being handled in general? So mishandling, the pure mishandling

of classified documents happens sadly a lot. The question always from a criminal standpoint, and what the Just Department always considers is was this accidental or was this something with a measure of intent and or obstruction that would warrant actually pursuing a criminal prosecution. So for most people, the Just Department is happy to just let the administrative process play up. Security clearance gets a vote, person gets fired,

something along those lines. Those aren't options obviously with someone like a Donald Trump or Joe Biden, because in their roles as constitutional officers their exempt from it. Donald Trump is now no longer even working for the federal government as president. He's a private citizen, so there's no administrative steps to take. It's either criminal or nothing. But by and large, with very rare exception, the Justice Departments does

not prosecute accidental mishandling of class fan information. They prosecute if you're looking to sell it, if you're looking to actually use it as more forms of espionage. If you deliberately took documents and you're storing them for whatever purpose you want at home, those are reasons they would pursue a criminal prosecution, as well as if you obstructed any

effort to recover them. So right now, the job of their special counsel pro to determine if there was any crime committed beyond the breach of security itself, if there's any particular criminal liability for anyone up to including obviously Joe Biden, though given that the current president, it's obviously d o J policy not to bring in indictment anyways. But were any of the stafforts that anybody commit a crime that needs to be prosecuted at this point, so

what possible criminal liability is there? What statutes are involved. So you're gonna have some of the same legal provisions that are in play in the Marlagua saga. You're gonna have the Espionage Act provisions concerning the unauthorized retention of national defense information. You're gonna have issues of potential obstruction if there were efforts by whether it was Mr Biden or any of the staffers to conceal or obstruct efforts to recover these various records over the last six or

seven years. We have seen no evidence of that yet, but that would be the type of statutory provision that would come into play if evidence along those lines is developed. Does taking this from an in house Justice Department investigation to a special council investigation escalate the inquiry? Special counsel

don't always, but often do bring criminal charges. So what making it into a special council changes more than anything, in my view, is increases the likelihood of transparency, where usually if the U. S. Attorney is simply investigating it, if they choose not to bring charges, that's the end of it. There's no public report, there's nothing, They just end the investigation. A lot of times they won't even make much of a comment, if any, to the public

about it with a special council. The regulations specifically anticipates that a report outlining the entire to the investigation will be compiled the presented to the Attorney General, and most likely Attorney General Garland would make that public for American voters to review and to take any consideration. So it doesn't change anything, is my view, in terms of the power of the Justice Department to bring charges. It doesn't make it necessarily more likely charges are going to be brought,

but it ensures more transparently. Former President Trump, who has claimed that he declassified all the records found his home that providing any proof of that, said on his truth social account quote, when is the FBI going to raid the many homes of Joe Biden, perhaps even the White House? These documents were definitely not declassified. Donald Trump is making

another rant, Like Donald Trump does, it means nothing. Look, if Joe Biden starts obstructing the investigation and submitting false statements to his lawyers, and the Just Department develops evidence that Joe Biden's team is concealing other records with classification markings at other facilities, then they can go to the magistrate and get a search warrant, just like they had to do with Marlaco. But that was an eighteen month

process and the Trump team constantly obstructed that inquiry. There's no indication the Biden team has done anything similar. Not to mention this idea, are you going to raid the White House? The White House is a government facility authorized to hold those records, and Joe Biden, as the current president, can do whatever he wants with them, just like Donald

Trump could do when he was the president. Does this second special counsel investigation complicate the investigation of Special Counsel Jack Smith of former President Trump and the decision by Smith and Garland whether to prosecute. I don't think it instily changes their legal calculus. It might alter their political calculus of it. If you're Jack Smith and you're compiling a potential indictment against the former president, you were already on high alert to make sure your case was tight

in your facts were clean. Now you're gonna be even more so worried to make sure that there are no gaps in the evidence, that there are no witnesses whose credibility you can't be sure of. You're gonna be even more sensitive to that idea, because if you choose to bring an indictment and the special counsel inted Biden mess does not, there will be obvious political implications. And less we forget there are actually three special counsels at the

same time. John d has been investigating potential misconduct in the Trump Russia probe for about four years, So the special counsel investigations can take on a life of their own. Thanks so much, Brad. That's Brad Moss of mark Z coming up next. The Supreme Court considers the attorney client privilege in a case with special importance for in house counsel. You're listening to Bloomberg, I'm wondering if you would just comment on, you know, the ancient legal principle of if

if it ain't broke, don't fix it. There was laughter in the courtroom, as just as Elina Kagan suggested, there's no need to change the scope of the attorney client privilege, which protects the confidentiality of communications. The question that jostices are deciding is what tests should courts use when communications between a lawyer and a client involve both business and

legal advice. I mean, we've had the attorney client privilege for a long time and until nobody ever uh and suggested that the test that you're proposing is the right one. Everybody instead used the primary purpose test. Should communications be protected only if the primary purpose was to obtain legal advice, or also if a significant purpose was to obtain legal advice. It sounds like semantics, and many of the justices seemed to agree with Justice Kagan that there's no need to

fix what ain't broke. Here's Chief Justice John Roberts and Justice Ainy Coney Barrett to a certain extent. You know, I think we're talking about labels rather than analysis, because we can't really say tigeres to the runner right when the burden is on the person invoking the privilege. We can't get into this whole put a percentage on it for the reasons that we've already talked about, So maybe it's best to say nothing. Joining me is M. C. Sungaila,

head of the appellate practice at buck Alter. This case involves a grand jury subpoena in connection with a criminal tax investigation, and the law firm and the client in the attorney client privileged to withhold documents, and the case is shrouded in mystery in a lot of ways. The petitioner isn't even named. Oh gosh, yes, Well, there's the mystery having to do with the parties and the fact what things are under seal and you know which law

firms involved, in which companies involved. I think there was some reference in the government's briefs of the company involved with the privileges involved in the cryptocurrency or something like that. But yeah, there's a little bit of mysterious to the individual participants, but the larger she's not a mystery, and it's definitely one that is of interest, I would say, particularly to in house council who often are in the position where their communication could be seen as dual purpose.

So the question here is what is the test to apply to communications that have both a legal purpose and a business purpose. And is the test the single primary purpose is legal and therefore it's subject to attorney client privilege or is it sufficient that a significant purpose is enough? So that's the question, I think, particularly given that there are so many circumstances, especially when you're talking about in house counsel in companies, they're often asked business strategy questions

and legal strategy questions what are really Internet? And so they're paying a lot of attention to this case. So M see you filed an amigest brief on behalf of the Federation of Defense and Corporate Counsel supporting a broad application of the privilege. Is the concern that a narrower test might chill a client's communications with their attorney. Yeah, I mean you want people to be forthcoming so that

you can give the best legal advice. You also, in the course of providing legal advice sometimes to me to

get a lot of other personal information. So one of the examples that came up in the argument was, well, if you're asking for advice about property or the family home or something like that, and you need to get some evaluation information or factual information about the property in order to offer google advice about it, you want as much information as possible, and you want it as broad as possible in doing that, so you can get the full information you need to offer the best advice, and

also can ask a lot of different factual questions that you need to render that advice. And sometimes two clients don't know they think there might be a legal issue, but they don't know, and they think they're asking a

business question, but it's really also a legal question. So if you had this test of a single primary purpose being seeking legal advice that they might say, as a client, well, we didn't really know at the time we were asking questions, but it was actually legal advice that we really should be asking about. On the other side, the government argues that having that kind of a broad test would allow companies to shield documents about accounting and business development without

a compelling justification. And in this case, the government says, the vast majority of the documents in dispute our communications between the client and a non lawyer accountant that was employed by the law firm to prepare tax returns. So the government says that the broader test the significant purpose

is too broad. It's really interesting. There was a lot of stock and forth about what each side position was, whether there really was some, you know, significant disagreement by the parties about what the tests should in fact be. At one point Justice course that said, oh, I think both of you might be adjusting your definition of the test and might actually be coming to the same test,

which is not primary purpose but a significant purpose. And you know, the government submurdered at one point somethw that that's not exactly what we're saying, but it didn't start to sound like it. But there were moved and goalposts from what you described as you know, the government's positions seemed to be moving a little bit scaring arguments. But they did state that concerned that, I guess, the improper invocation of the privilege or an effort to have everything

covered by the privilege when it really shouldn't be. And they also talked about the specifics of this case, and so I think that's really two things at play here. One is the overall test which would apply while beyond this case, and that's of course at the free court level,

with the justice is always remind everyone of. And they did an argument which was, yeah, yeah, we're very interested how this comes out in the particular case, but we're most interested in what's the test and why we should adopt a certain test, because that's the test is going to be applied across multiple cases, so we want to make sure it's workable. It seems pretty clear that the government was on one side and all the aniquest briefs

were on the opposite side. From our perspective, from the perspective of the bar associations and the business organizations that files aniquest PAS in the case there's their cheene of

those rates. You know, all of those amagists are aligned in having a concern about the test that the government is avocating for a single primary purpose test, because we want a practical, workable test that gives us some sense in advance of what would be subject to the privilege, and something that in retrospect also is more workable in terms of analyzing whether the privilege attaches, and something that also just reflects the practical realities of how legal advice

is given, the circumstances under which is given, and just how things operate in the real world. And you know, frankly, it's really nice to be on the Supreme Court and to be in the position they're in. They don't have to deal with those realities. So, you know, we hope that the amagas greeps will help illuminate the practicalities of that and how the test will be applied. So it seems to be semantics the words significant and primary. It

doesn't seem like there's that much difference between those. Yeah, not only some of the questions too, was how do you define these terms? So, assuming we adopt a significant purpose test, counsel, we do that mean to you? If we weren't to define it, we don't have to, But if we were, what would we say? And some of those answers seemed to really dug tail between the government

and counsel seeking a broader privilege. So you say, hmmm. Ultimately, as discourse is pointed out, I wonder how much light there really is between the standards as applied that each side's arguing for. So it really was kind of interesting, and it did have you maybe stetching your head a little bit after argument. But maybe Justine course has had something There really isn't a significant you know, divide. So

where do you think will come out? I mean, if you're just listening to the arguments and assuming that folks are gonna kind of stick to their guns, and where they seem to be mean during arguments, I would say, just this course, it's Justice Roberts and Justice Kavanaugh seemed, you know, more predisposed to the argument for a significant

purpose test and something that gave more protection. The rest of the court had various degrees of concern or consternation about a test that was something different from the primary purpose test. So, yeah, it's looking like not great for this for the in house council. Is it possible to come out with a test that's really clear in this area? Is it possible that they come back and they don't

have a clear test? Yeah? I mean that was one of the That was one of the things I thought that Justice very kind of floated at one point during argument, which was, well, if we can't really reach some kind of consensus on the court itself about how do we define a test and giving guidance about how to apply it, one suggestion she made was well, if we just basically say we adopt test X and then let it work out afterwards through the system, that might be one way,

because I think she was reacting to the fact that they probably weren't going to get certain people, you know, on the court to agree to a particular outcome, so she was maybe testing the waters or what if we just said something very broad about which testfully adopt and that would define and I think, you know, the suggestion was if we adopt the primary purpose tests, then we wouldn't need to flush it out too much because there are state cases that interpret that and everybody could look

to those with a pre existing law interpreting those cases. But in response to that, Jesfics cavan not pointed out, well, but they say they apply some tests that they don't they really seem to apply another one. So how clear is that? Not very clear? So not very clear. Just explain how this decision then could impact not only in

House Council but outside lawyers. Yeah, it was one of the suggestions by um, the government at argument one that I've seen in you know, previous advice letters or things like that from from very well regarded law firms to their clients. But how do we deal with this if it is more of a primary purpose type test, how

do we proceed? And it was similar to how the government suggested, Well, you have one email or one memo that's focused on legal analysis, and you have another memo or email that's focused on the business part, and you keep them separate so that there's you know, none of this kind of questioning having to parish between dual dual purposes. Really, um, you would really solve it by keeping the legal completely separate.

And uh, when I heard that and also seen that advice previously, I just I just thought, well, that's just reveals how unworkable it is if you're focused on this you know, primary purpose question, because I think in reality it's just not practical. Oh, everybody stopped that mail chain we're on where we're debating with the executives and other people in the group about mixed the business and legal things, shall we say, and we're gonna have the lawyers going

to pull out some separate emails. I know, everybody, we need to have some separate email chain. That's only about the legal advice. It's just it's counterintuitive, and it really separates out um that legal advice from them from the business concerns of the clients, and also from the property question that came up at or larguments. Even for the folks who aren't big companies, who who are clients individuals

those clients. This question of how much information you're giving that may deem peripheral to the direct legal questions but actually are important for the lawyer to know about in order to give the best legal advice. You might be a little more concerned, like I don't want to go a field of you know, the things that would be purely legal advice, because then I'm getting into this you know, swampy area. I'm not sure whether things are actually protected

by the attorney client privilege or not. So those are those are things we don't really like to see. We want more open communication and transparency between clients an attorney in order to have the best compliance, in order to understand the legal risk to the utmost and um. It's hard to be proactive when you have a test that unclear. It seems like there wouldn't be five votes to change the test. It doesn't sound like it's to me an argument. It doesn't sound like an argument. I mean it might

be afterwards. What I'm thinking is there may be some working out of things afterwards. The people that kind of say, okay, if you have to have to write out what this test means of how it would apply, maybe you'd have some some second thoughts about how that is applied. And if it turns out that you end up having some kind of primary purpose tests that ultimately really in practice ends up seeing something that looks much more like a

significant purpose test than maybe you don't lose. So I think it really in this case, it will turn on the details and where the court goes in terms of how how much it's going to go beyond just announcing some general standards. You've been going to break it down a little bit more. It may turn out that the tests maybe in name be different, but actually an application

it might not be. I think that's really kind of the best reading of the tea leaves for the thirteen guess of which my client is one um before the court in the case, but you never know for sure. Thanks so much, em C. That's mc sanila of buck Alter. Dozens of President Biden's judicial nominees, some of whom waited a year or more for a confirmation vote. We're in a sort of limbo when the seventeenth Congress came to

an end in December. Now, Biden has resubmitted twenty five of those nominees to the Senate, including lawyers for the A c. L U Southern Poverty Law Center and Center for Reproductive Rights who previously deadlock in the Senate Judiciary Committee. The hundred and eighteenth Congress should be an easier one for Biden's judicial nominations, as the Democrats enjoy a newly boosted majority. Joining me as an expert in the judiciary, Carl Tobias, A professor at the University of Richmond Law School.

Dozens of Biden judicial nominees were returned to the White House. Explain why, Well, that's automatic because the hundred and seventeenth Congress ended, and so you cannot carry people over into the new Congress, so they need to be renominated if they did not have a confirmation vote. That's what happened. They came back to the White House to the President.

About half of them were renominated, and as I understand it, during January, the others who were not renominated will be There's a lot of paperwork and updating that has to be done, and we're just coming off the holidays, and so I think that explains why they're going to gradually send all of the nominees who are willing to be renominated by the end of the month when the standard

comes back. They actually came in for ceremonial duties and swore in the new senators, but then left until the three when they'll return and then start in earnest they're working. So let's talk about some some of the nominees who have been resubmitted. The ones that I saw seemed to be candidates who are very progressive. So for the eleventh Circuit Nancy A. Voudou of the Southern Poverty Law Center. So tell us a little about her and what happened

to her nomination in the first place. Well, she received very rigorous questioning from the GOP centators on the committee, especially about her work at the Southern Poverty Law Center, which has been at the center of some controversy. But she responded to those criticisms by saying I was working on helping people who cannot afford legal representation in the civil rights and criminal defense areas, and said I didn't run that center, which has called the Alliance Defending Freedom

hate group. And she received specific questions about that from Holly and I think Cruiz but answered I think in a straightforward way. She had a tie vote in committee eleven to eleven, and I do not believe that Democrats try to discharge her from committee, which they might have been able to do on the floor. But she's now renominated and I think with the sent it she will be confirmed. It's just a matter of when. And she like everyone else who was renominated, the people who had

committee votes. As I understand, it may have to have another committee vote, but That will be easy because the Democrats will now have a majority on the committee, so there won't be high votes, and the Democrats and Republicans to some extent, especially on the Committee, have voted pretty much in lock steps. There have been very few departures on the Republican side, except for Lindsay Graham, the former chair of the Committee, who I think believes that the

President is entitled to his nominees. Unless Graham thinks that someone is too far out of the mainstream, Well, they have to have hearings again, or they could just be voted out of the committee without a hearing. No, that's a good question. They will not have to have hearings again. They still would, I think, to have another committee vote, but that's pretty perfunctory at this point, sup of people who already went through committee on a majority vote when

there were eleven senators from each party. So it will just be at the first or second Executive Business meeting when they have the votes on Thursdays. The Republicans may hold them over a week, but then there'll be a vote for many, many dozens of nominees on the second Thursday after they returned. Another nominee who's going to be resubmitted. This is for the first Circuit Julie Reichelman, and she represented the Mississippi Abortion Clinic in the case that overturned Row.

So there's a reason why she didn't get out of committee. Yes, because abortion has been for forefront in the minds of many Senators and many people around the country. Republicans consider her to be controversial because she has litigated a number

of very important cases involving reproductive freedom. But she has certainly known her way around the federal courts all the way to the Super Court, and has served in capacity as a lawyer in the appeals courts around the country litigating that issue in many other issues, and so she's very experienced. She said, I will apply the law and the facts in every case, and I am cognizant of Dobbs and will uphold dobs because that's the supreme court law of the land. She answered that way on many

occasions when questioned about whether she would follow precedent. A nominee to the Southern District is Dale Hoe of the A c l U. Did he ever get a hearing. Yes, he had a hearing, and Republicans were concerned about his criticisms of some politicians, including some members of the committee in his capacity as an advocate, and so they were questioning him about whether he could leave behind those concerns that the stors had and be a fair minded judge.

And he had done some I think tweeting and made some statements on YouTube and various settings that concerned the senators because he has been a strong advocate in context, especially involving immigration and civil rights for the A C. O You for a number of years, even though the Committee was split on these Why didn't Chuck Schumer bring

it to the floor. Well, I think for some of them whom we've been talking about, especially after the election and then second election in Georgia where Senator Warnock won the runoff, there wasn't a real big reason to bring them up because Democrats have a majority and a better majority than they had in the U seventeenth Congress now, and so there was no reason to press forward and

risk a loss on the floor. I think now the people who need discharge petitions if there are any, and I think there are not going to be any given the competition of the new Judiciary Committee with the Democratic majority, that just would be no reason to force them through and make Republicans mad and force Democrats to take a vote that they might not want to take. It just wasn't necessary. They may have to wait a couple of months,

but that seemed to be a preferable approach. Why you know, force an issue that you know you can win in a new Congress, And I think that was the thinking by Humor and other leaders on the Democratic side. I mean, is there any way that that having an extra committee member is going to speed up the committee even more? When Durban he's following the same path that other Judiciary

Committee chairman have followed before him. Well, yes, I think that it will speed up the process, especially for people who might be more controversial and at least before received high votes. But now with the at least eleven ten and maybe twelve ten of the Judiciary Committee, they will easily go through committee. Hopefully the hearings won't be as controversial as some have been, and it also depends partly on who the not particular nominee is, but I think

it will go more smoothly from the Democratic perspective. I think the other question you're asking in some progressive groups have asked as well is are all those vacancies going to be filled in the next two years, And there are many seventy two at the district level and ten at the pellate level, and then twenty five or so future vacancies, and as judges continue to take senior status or retire or die, they're going to be additional vacancies.

And everyone wants to see all of those vacancies felled, and it just takes time. I was surprised to see that the center, you know, left after one day of purely introductory or for a couple of weeks. They went home for day work periods until the twenty three you know, after that will have President's Day. Um once we'll take

another week, and so the calendar moves on. So the solution to that, which some have proposed, is either to have more nominees in specific hearings or to have them more often than one every two weeks, which is I

think the president you were referring to referring to. I believe the Republicans under Trump rarely had hearings more often than once every two weeks, and that's what Durban has done systematically, But he has not scheduled them more often than that, and so some progressive groups are urging that or the other alternative is to have more nominees and

specific hearings. Durban usually has had one or two appellate nominees and then three or four district nominees, And of course if you have more nominees in each hearing, you can move more people through, but that limits the time for questioning. And so I think he's trying to be as fair as he can and not unduly change a number of the traditions of the Senate carl Are any of the circuits likely to be flipped in the next years or so? Perhaps, But there's an interesting question that

you raise. Most of the appellate vacancies that the president filled, and there were twenty eight of them, which is a substantial number. Those nominees were mostly replacing appointees of democratic president, and that's one measure of the people use, which is is relatively crude, but it's used by many observers of the federal courts. And so that creates a bit of a problem because you can't flip the circuits as you're

suggesting when you're only replacing democratic appointees. And so there are some vacancies now that are held by appointees of Republican pressments, and so those will make some difference, for example, in the third circuit. But I see that they're not very many appeals courts which will flip in the next two years unless you have more GOP appointed judges at the appellate level decides to take senior status or resigned. We haven't seen very many of them, but some have.

And that's not a rule, that's just a custom or tradition, and I think many Democratic and Republican appointees don't honor that or honored in the breach and will take senior status or retire when they want to. And some don't have much choice. I mean, maybe they have a health issue or something of that sort, and so it really

is specific to each judge. But so far the pattern is, at least in the Biden years, has been more Democratic appointees have assumed senior status than Republicans, and I think it's something like three out of every four. So we'll see if they'll be changes in the next two years.

Trump certainly was able to flip some circuits, that's right, and partly because Mitch McConnell didn't allow obama Phil vacancies in twenty sixteen and held them open for Trump, and so that explains how he could appoint four new appellent nominees in the four years he was president. And so there were many leftover vacancies because they the GOP refused to even give hearings to many of Obama's nominees for those vacancies. So what will the agenda look like in

the senator's return. They'll come in and as soon as they do, they'll start to move people. They'll finish off I think in January renominating everybody and just keep moving the process. So we'll see how that goes. But I think the Democrats are very much determined to confirm as many people as they can and keep moving in. So they're committed to it and publicly thanks Carl. That's Professor

Carl Tobias of the University of Richmond Law School. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news honor Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, Slash Law, and remember to Tune into The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg