This is Bloomberg Law with June Brusso from Bloomberg Radio. President Biden and the Democratic led Senate confirmed a diverse slate of forty district and appellate judges in one beating out the first year totals for every president since Ronald Reagan. He diversified the bench, doubling the number of black women at the circuit court level. Of those nominees, twenty were Black, fourteen were Hispanic or Latino, thirteen were Asian American and
Pacific Islander, and three were Native American. And there were a number of firsts, the first openly LGBT woman appointed to a federal circuit court, the first black judge on the Federal Circuit Court of Appeals, the first Asian American woman on the d C Circuit Court, and the first Muslim federal judge. But Biden will face more challenges getting judges confirmed in two especially since could be a closing window after the mid term elections period. Discuss those challenges
as Bloomberg Law. Reporter Medisine Alder tell us broadly, what has Biden accomplished as far as judicial vacancies in his first year. I'm not a historic here of judicial nomination he confirmed with the help of Democratic lead Senate, forty district and appellate judges, which is the most of any modern president since Ronald Reagan. And a lot of those nominees were very diverse. They brought both professional and demographic diversity to their respective courts, which was a really big
priority for the Biden administration as well. So tell us about the different kinds of diversity. So in addition to demographic diversity, you know, Biden has prioritized nominating people who don't have a traditional path to the bench professionally. That includes people who have experienced as public defenders. It's probably
the biggest group. About of his nominees so far have has some public defense experience, according to the Alliance for Justice, which is the progressive legal um advocacy group, And that means that Biden's nominees are kind of unique in this way, you know, particular to him and in this administration. They're not just demographically diverse. So many of them women, many of them have been women of color. They also have this added factor of having a background that is very
different for the federal judiciary. So were the progressive groups happy about this, where they pleased with his progress. Biden has largely met expectations from progressives in terms of the diversity of his nominees. At the beginning of the administration, progressives really hopeful that Biden would bring more diversity to the federal judiciary and do it quickly, considering that he has experience as the chairman of the Senate Judiciary Committee.
He's the nominations on the other side of of this before so um they were really hopeful that he would make good on on these promises and efforts. And then White House Consuladina Remis laid out to Democrats early on the administration that they wanted more demographic diversity, more professional diversity, and I think progressive groups have have largely been pretty pleased with with the way the Biden handled his first year. So though of the nominees were Hispanic or Latino, some
Hispanic and Latino groups express frustration with that. The Mexican American Legal Defense and Educational Fund was disappointed with Biden's decision to announce intent to nominate Michelle Child to the DC Circuit. This is the second DC circuit they can see that Biden has had opened. The DC circuit is obviously a very important court um often seen as the second highest court in lance the Supreme Court. And Mulda was really hoping to see the first Latino nominated the
DC Circuit. This would have been the first in history. And I spoke to Thomas Science, who's the President General Council of Maldus. He says that they forwarded nominations for the White House. They were talking to them, but ultimately Michelle Child, who is a black woman, was the intended nominee. They're disappointed with this. They're also disappointed with the nominations to one of the California district courts, which they believed didn't include as many Hispanic and Latino nominees as as
it could have. So they'd like to see more of this in two and Science told me that there are certainly seats that they're they're going to be watching for for Hispanic and Latino nominees. And certainly there were a lot of first in terms of judicial appointments, the first openly LGBT woman on a federal circuit court, the first black judge on the Federal Court of Appeals, the first Muslim federal judge, to name a few. But there are still possibilities for more first, so tell us about correct.
Jill dash the American Constitution Society told me that she's going to be looking for Biden to increase diversity, naming more LGBT, fugh lawyers, labor side attorneys. But also she's gonna be watching for vacancies on the third Circuit, which has never had a black woman before, and the District of Idaho, which has never had a female judge in its history. Some are calling for nominees who are disabled
or who have the background in disability law. Rokim brooks Um, president of the progressive judicial advocacy group Alliance for Justice, told me that he's looking for more nominees are some of the first cominies that would have experience and disability law or ours themselves disabled. That's going to be another group of of nominees that that Biden could pull firm
for the first time into two. Let's talk about the fact that the overwhelming majority of his nominees so far we're in states represented by two Democrats in the Senate. Explain the blue slip procedure. The blue slip rule is a practice in the Senate in which home state senators signify their support for a nominee in their state. In Under the last administration, the Republican led Senate did away with this rule for for circuit court appointments. They stopped
treating it like a veto. Democrats have said that they're doing the same thing this time around now that they're in the majority, and that means that at the district court level, blue state seats are going to be the easiest ones for Biden to work with. He might have to negotiate more with states that have at least one
Republican senator. That there has been a nomination to a district court seat in Ohio, which has a long history of partisan collaboration between the two senators there, one Democrat and one Republican, and then there has been a nomination at the circuit court level to a red state, which is Tennessee, that is andre massive for the sixth circuits. Is Biden just shying away from confrontations with Republican senators or are there other reasons why he hasn't been moving
forward in states with Republican senators. There's different opinions about this. I don't think it's clear necessarily what the Biden administration is doing at this point. But you know, sources that watch this process closely have told me that the bind administration could just be dealing with low hanging fruit, dealing with circuit court vacancies and district court vacancies in blue
states in the first year. But there are vacancies in in red states and purple states, both at the district and circuit court level, that Biden will probably have to deal with in which could create a bit more difficulty in judicial nominations for for this year. U nine Mathis for the Tennessee seat on the sixth Circuit. Tell us what happened there was a problem when he made a nomination in a red state, Right Andre Mathis, Biden's first
nominee to a red state. We contented criticism from the two Republican senators there because they didn't feel they were consulted on the nomination. The White House definitely responded to this. They said that that they had consulted with the Tennessee senators meaningfully. So so there is a bit of a
disagreement there. But what the disagreement between the White House and the senators really highlights is the difficulty the Biden couldn't be approaching with other circuit seats if they're if they're choosing to negotiate, but also a district seats could be an impediment to those which still for all intents and purposes, require blue slips from from home state senators, though Senator Servant, who is the chairman of the of the Judiciary Committee, has said that he would potentially do
away with blue flips if Republicans are are objecting the process. UM, and that's going to be a call that the Democrats make, and there's an urgency to fill these slots in two before the Senate may change hands. And that's an added pressure in two for the Biden administration if Democrats lose the Senate during mid terms UM, or even just the pressure that the midterm elections will will put on members of Congress UM. That's just another factor that's playing out
in the background for nominations this year. The Biden administration has been moving very quickly, but they'll likely have to maintain the pace this year UM with mid terms potentially threatening their splin Senate majority. You talked to Ed Wheeland of the Ethics and Public Policy Center, and he said he's delivered on his adversity promise. I think he said a bar so high, I'd be surprised if he's able
to maintain it. Well. Biden's diversity with his nominees in this first year has been pretty remarkable, and especially you take into account professional diversity and demographic diversity. UM So, I think what um Ed Whelan is saying here is that you know, in year two, Um Biden is said quite a high bar for himself. Uh. And we'll have other factors to take into account in two as groups on the left are pushing for Biden to even further
diversify his nominations. So now there's one area where Biden has not been able to make any appointments, and that is the Supreme Court. People are looking again at Justice Brier to see if he'll retire before the midterms. Have we heard anything at all, If we've heard anything, if it hasn't gotten to me yet, Justice Brier is going to be the one that has to make this decision ultimately, but progress that they're very hopeful. Uh, he will decide to retire at the end of this firm, and Biden
would have a Supreme Court appointment before the midterms. He's indicated that he will put a black woman on the Supreme Court. Has he mentioned any names. Biden hasn't mentioned any names publicly, but Biden doubled the number of black women judges at the circuit court level in um was his first four circuit court appointments. Um, so he's he's
definitely building that that pipeline. And then two of those um or I should say, one of those nominees who's been confirmed, Umkatanti Brown Jackson has thought of as a candidate potentially if there were Supreme Court vacancy. And then Biden's nominee for the DC Circuit Michelle child Um, who has yet to be formally nominated. She is also seen as a potential candidate for a vacancy. So um, he's
he's definitely building that pipe. One. So it looks like it's going to be another interesting knee year of judicial nominations. Thanks so much, Madison. That's Bloomberg Law reporter Medicine alder. As the Supreme Court faces calls for broader structural changes, Chief Justice John Roberts stressed the importance of judicial independence from congressional mandates in his annual Year and Report released on Friday. Joining me is Professor Harold Crent of Chicago
Kent College of Law. In the face of what some would call a legitimacy crisis for the courts, and particularly the Supreme Court is facing some of its lowest approval numbers. Did the Chief address that. The Chief to not address the importance of an independent judiciary and the importance of public having faith in judiciary directly. What he did instead was trying to parry pending efforts of Congress to regulate
the judiciary. And he did that directly by saying, we have the ability to put our own house and order, by beefing up efforts to combat ethics stylations, by beefing up efforts to combat any kind of workplace harassment. So Congress hands off, You don't need to regulate us. We can more effectually regulate ourselves in the long run. What he was trying to do was emphasized the importance of an independent judiciary apart from any kind of congressional regulation.
The two issues that he concentrated on, how the judiciary handles financial disclosures and workplace harassment. Those are issues that the judiciary has faced for quite some time. Has it shown it's capable of policing itself. Well, there have been efforts by the judiciary to take complaints with respect to judicial misconduct. Indeed, Congress set up a statute in to allow judges and to organize judges to receive complaints of wrongdoing about their fellow judges and follow a process of
inquiry and ultimate sanction. But obviously there are still problems that happened, and most notably there was a Ninth Circuit judge, Judge Kozinski, who was accused of serious sexual peccadillos um and was forced to resign a number of years ago. Obviously, we don't know about other kinds of complaints that are continuing, but there are some. And I think what the chief was saying is we're not perfect, and we knew we do need to take more efforts, but we've done a
pretty good job so far. Maybe he's right, maybe he's wrong, but that's the tone of his message. He referred to a Wall Street Journal investigation that found hundreds of instances where judges presided over cases involving companies that they or their relatives held stock in, but the journals that it's subsequent reporting found that the actual number of cases was significantly higher, with at least nine and fifty recusal violations. Is anyone policing whether or not judges step down when
there's a conflict of interest? Well, the judicial the mystery of office, the u S courts, and the didicitial confidence should be exercising their oversight authority to gauge whether there are such kinds of failures to recuse. I do want to add that a lot of these recusal um requirements are formalistic, and by that I mean if someone owns a share of stock or five share of stock, even if it's an unutual fund um, one should we choose oneself.
And obviously we don't usually think that a judge will be biased because of owning five shares of stock and some kind of mutual fund, but nonetheless they're important. Um. The Chief Justice Roberts recognizes that those rules, even if they are formalistic, are important to prevent financial influence from entering the fray and from making sure the public has faith in the judiciary, and so he is pledged to work with the Judicial Conference to improve technology to help
enforce these requirements more stringently. So do I think this is the most serious violation of judicial independence? I don't UM. But I do think that that Walsing journal was right to call out the judiciary UM, and the judiciary should redouble its efforts in order to prevent that kind of The Chief was as one of three justices who have had to recuse themselves because they found out that they own stock in a company. Is the question whether judges
should own stock in individual companies at all? Well, it's difficult in this day and age, given their companies operate under different names and their um internationally connected in different ways, to really figure out how to police against financial interests in a in a proceeding. Some people have recommended that there's a blind trust that once you're a president or a judge, that you should have somebody else to manage your money so that you can't possibly be, you know,
affected by some kind of financial bias. And I do think that this we try to draw the line to prevent very clearly. Uh, But really in some ways it's a over enforcement because I don't think that owning, you know, fifty shares of stock point five shares of stock in an entire portfolio will really change someone's perspective on the vote. And sometimes people don't even know the stock that they own just because it's owned in some kind of mutual funds.
So it is a problem given financial holdings what they are. And I do think that better technology and more rigorous enforce ment is appropriate, But I don't think that our judiciary is riddled with financial self interest. Does the judiciary have an ethics code? Does the Supreme Court have an ethics code? Well, there is a I don't believe that
there's an ethical code specific the Supreme Corporate. There certainly is an ethics code for the judiciary, and the Judicial Conference does can pass um rules that had past rules or to maintain the highest sort of level of professionalism amongst the court. One of the things that the report does indicate, though, that there has historically been we might call incivility, we might cause sort of those kinds of
petty uh problems that happen in the workplace. And there has not been a great deal of historical attention paid to what it means to be civil in terms of a judge to a bailiff, or a judge to a
court clerk or two litigants themselves. And I'm glad that at least in some ways Chief Justice roperators giving some attention to that by creating task forces to better educate and to take complaints from both workers and litigants when judges do burst out into profanity or uh criticize what someone is wearing, because those kinds of incidents have not been police historically, and just by hearsay an anecdote, UM, I think they take place far more often than does
any kind of financial impropriety. When I hear Congress is going to establish a task force or any organization is going to establish a task force, it just seems like that's kicking the can down the road. I mean, what do task forces really accomplish. Yeah, sometimes it's information gathering and one needs information. But at the same time, there
are some structures now in place. There are complaints that can be filed against judges, and each Circuit Digital Council has to have a mechanism for allowing those complaints and then for investigating those complaints. So that is actual progress it is in place. UM. Whether there is appropriate sensitivity training to say to put it that way, um, and whether there's a task force to figure out what you go into that set sensitivity training, I don't know that.
I think there's probably more reason to be skeptical of that, but again there has been at least some progress made that people who are outraged at the behavior of judges, whether again employed to employees or lit against, can can request some kind of answer and that the councils will investigate those kinds of charges. So we're not all the
way there, but there has been progressed. So now, there was legislation that passed the House about judicial financial reporting, past the House by a margin of FO two to four in December. We'll see what happens in the Senate. And there's also separate legislation that would give judiciary workers the same anti discrimination rights and whistleblower protections as other federal employees. That's pending, but does it seem as if
something is going to happen. There's going to be some legislation passed in the near future regarding the judiciary, and the judiciary historically has opposed any kind of extension of whistle or statutes or any kind of discrimination statutes to the judiciary. Um they want to keep it in House, just as Congress does. Congress has been wrote to require its own members to fulfill the same kinds of requirements as in a private workforce, and I've now there, I
think that the judiciary maybe on weak ground. I think it's probably is appropriate to apply those kinds of antiscremation and whistle lower statutes equally to the private sector as as to the judiciary and to members of Congress. Were there any surprises because the Chief Justice has been talking about the importance of the independence of the judiciary as long as I can remember. He has been talking about it.
And what is in some ways disappointing is he ignores the big question about the legitimacy of the Supreme Court in the public eyes. We know that the public has less faith in an independent judiciary than has in sometime despite the Chief's efforts. We know that there's greater politicization on the court. We know that even the way the justices react to issues such as abortion or the the right to own guns or voting rights m are very partisan.
Um and they've they've written in the person away. And so this report the ignores the fact that members of his own court seem to stand the flames of partisanship, and therefore in gender which I mean sort of endanger what the Chief himself believes is a large problem confronting the judiciary, which is the public's faith in an independent judiciary. This term, the Court has taken up a lot of controversial social issues, abortion, gun rights, some religion cases. It
now is taking on the vaccine mandate. Are these cases that the Court couldn't avoid or are they deliberately putting themselves into the maelstrom of what's happening in society with over these issues. I think for the most part, the Court is acting appropriately. There are splits in many of the circuits on some of these issues, such as the both the abortion case as cases as well as the Second Amendment cases. Um the vaccination case is very important
for the Court to address. Uh So I think the Court, the most party, is not reaching out to to get mired in controversy. What is acting consistently with what it's done in the past in terms of when there's a split amongst the lower courts resolved that split. And if something is very important to the future of the country, whether it's the question about the OCEHA and requiring vaccinations, or perhaps even it's it's about the subpoenas and the
January six movement, they should address those issues. And of course we're waiting to see whether they'll weigh in on the last one or not. And the Justices are going to be addressing the vaccine mandate question this Friday in the first oral arguments of the term. Thanks Hal, that's Harold cranned to professor at the Chicago Kent College of Law, and that's if in the edition of The Bloomberg Law Show. Remember you can always get the latest legal news by
listening to 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 Judie Bronso when you're listening to Bloomberg