You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. On the eve of an already contentious Senate hearing for a nominee to the d C Circuit Court of Appeals, the chief judge of that court is asking Chief Justice John Roberts to have another circuit court investigate just how
that seat became vacant. Following a New York Times report that Senator Mitch McConnell had been contacting appellate court judges nominated by Republican presidents to urge them to retire, the organization Demand Justice requested an investigation into whether McConnell had persuaded d C Circuit Court Judge Thomas Griffith to open his seat for McConnell's thirty seven year old protege, Judge Justin Walker. Joining me is Carl Tobias, professor at the
University of Richmond Law School. So, Carl, how unusual is it for the chief judge of a federal appeals court to ask the chief justice for an investigation? It is unusual. Well, but Judge Street of Austin is being very cautious, because, of course Justin Walker would be a colleague on the same court, and I think that's the reason he's asked Chief Justice Roberts to reassign this to another judicial circuit.
It has happened before, you might remember, with the then Chief Judge of the Ninth Circuit in the last decade or so. That's the only instance I can remember, of course, in the Chief Judge decided to ask the Chief Justice to not have the Ninth Circuit undertaken investigation, so that exactly what happened there. I think it was assigned to the Third Circuit, and I assumed Chief Justice Roberts will
do the same here in this situation. Still, it's an important inquiry, and really it's not so much about Judge Griffith, who was assuming senior status on the DC Circuit, but rather whether the Majority Leader McConnell has somehow across an ethics line and suggested that Judge Griffith and others retire early for right away so that President Trump can nominate replacements. Wouldn't it be a violation of judicial ethics as opposed to Mitch McConnell, I don't know what the violation would
be there. Well, I think that someone in the Senate and certainly the majority leaders cannot pressure, for example, uh, someone who's on the bench to change his or her status. But you're correct that if something were promised to a federal judge in terms of retirement or assuming senior status by someone who was in the Senate uh than and the judge m acceded to that, then that would raise
serious questions. Um, we'll have to see. It was relatively short notice, but again we'll have to see what the investigation shows. Chief Judge Triney Vassen said he made the
ruling without investigating the question that had been raised. Will Chief Justice Roberts definitely assign this to another circuit court for an investigation or might he take it under advisement and then decide not to My sense of what he's done in the past is that he UH, as with the Ninth Circuit and in other similar situations, he is more likely to send it along to another circuit and have its judicial counsel then moved forward on the complaint,
as it would with any other complaints. UH. And so I think it's unlikely it's possible, but more likely he'll send it along to some other circuits, maybe the second, maybe the third, or any other Circuit Council around the country. The nominee, the Trump nomine Actually he hasn't been nominated yet, has he. Carl So The Trump nominee, Justin Walker is a protege of McConnell's, whom the ABA found unqualified for his currency seat on a district court in Kentucky, where
he's only served about six months. Did he jump the line, so to speak? Did he leap frog over other candidates? Yes, but the Senate has been doing this throughout Trump administration. With the fifty one appellate court nominees confirmed, they have leap fragu and take precedence over the district court nominees.
That's why we have seventy four district nominees and half had as many as a hundred and fifties during the Trump administration because they focused like a laser on the appeals courts and have now only one vacant he left out of seventy nine judges, and so we shouldn't be surprised. The fact of the matter is twenty people have been nominated before Walker for the DC Circuit and he's leapfrogged
all of them. But that's the priority that the majority leader can set in running the Senate, and he's done that with a vengeance throughout Trump's administration. The Washington Post reported that the White House was considering Walker for the seat long before Griffith announced retirement. Well, it's certainly possible.
Leonard Leo is the legal advisor on judicial selection to the President, who was executive vice president and still coaching of the Federalist Society, and he has enormous influence in this administration, especially on Appellate Court and Supreme Court appointment. And so it shouldn't be surprising that this has gone on.
And apparently Senator McConnell as Judge Walker over to meet with the President before he was nominated, and again that's not usually done, but Senator McDonald thought it a good idea. I've been talking to Professor Carl Tobias of the University of Richmond about the chief Judge of the d C Circuit asking the chief justice of a Supreme Court to ask another circuit court to investigate allegations that Senator Mitch McConnell pressured a federal Circuit Court judge to retire early.
So you said that Senator McConnell has been laser focused on the appellate courts. He's also been laser focused on the d C Appellate Court. Explain why that court in particular is focused on and are the nominations there especially partisan in an already partisan time. The answer is yes. The reason is and everyone considers it to be the second most important court in the country because of the kind of cases it gets. On the hand, which are
critically important. Half of the docket is administrative appeals, and they often involve decisions with the p A or f d A or federal agencies that have consequences billions of dollars, public health, safety, and welfare, kinds of issues that have
enormous consequences for businesses and individuals in the country. Secondly, it's been the springboard for many recent and passed appointees to the US Supreme Court, most recently of course Justice Kavanaugh, but before him, Ruth Vader Ginsberg, Justice Scalia H and many others. And so for all those reasons, it is
considered to be an extremely important court. Presently, I believe out of the active judges, they're quite a few more judge is appointed by Democratic presidents than Republican presidents, and so it would be helpful. But again here won't change that balance, which I believe the seven four because you're replacing a city Republican appointees Judge Griffiths. So again Walker's thirty seven or thirty eight and Judge Griffiths is in his sixties, so Walker, of course, if confirmed, would serve
probably thirty forty years. So Democrats on the Senate Judiciary Committee have blasted the upcoming hearing tomorrow, said that now is not the time to process routine judicial appointments, and they've asked for a delay until the panel can address issues related to the pandemic. Is that likely to go over with the Senate Judiciary Chair It has been so far. Um they haven't formally announced the names of the nominees
for tomorrow's hearing when last I checked. But the letter went from I think all Democratic members of that committee last week to Senator Graham, the chair, asking him to postponent and then listing a whole number of coronavirus related issues that the committee could and should take up. And there has been no response. Get the posting a week ago or last Wednesday saying there would be a hearing on nominations. And so there are alternatives uh, and much
more pressing issues than firming nominees. So Democrats are concerned about that, but Graham has not been very responsive to their quest. There are some nominees to fill district court spots, which McConnell hasn't spent that much time on. So tell us about the new nominees for the district court spots. Well, there are many, and they're all around the country. UM, as I said, leap frog twenty or so who are waiting to the process um and to have their hearings
and committee votes. They're from everywhere. UM. There Especially important are more than something around a dozen or so from California, which has seventeen district court emergencies and the administration has yet to confirm one of those. So that's an example, um, either ten on this or more on the Central and Southern district of California who are awaiting hearings. Uh. Some nominated as long ago and so that's a classic example. But yesterday they sent over to the Senate two nominees
for New York vacancies who are well qualified. Uh. And there have been others from from different parts of the country, someone from Alabama, some one I think in Mississippi to replace Jeff Wilson who has been nominated to the Fifth Circuit uh And so they are from all around the country h and many of them would fill emergency vacancies, so it would be able to have their hearings and move them through if possible. Uh and still their whole number, like in the thirty five or so seats that don't
have any nominees at all. So are these nominees the district court nominees? Are they nominees that will fly through because Democrats and Republicans will agree on them. I think a number of them are ones. As we've talked many times before, all of the emphasis has been on the red state nominees and vacancies and very little on the Blue states. The Joursey has six emergency vacancies, no nominees, and the entire Trump administration Washington States has five emergencies
out of seven vacancies, only two active judges there. Um California situation I mentioned, Um Massachusetts. They're just a number of these Blue states. Uh And so it would be valuable if Trump would to nominate for those vacancies and then send it to move them through though the GOP talks a lot about regular order in the sentence, but it doesn't follow regular order, as Justin Walker Tearing exemplifies.
And so that's the real problem. Whether there will be time to to reach the nominees for blue states before UM the election is not clear. I mean, for example, the two New York nominees from yesterday, I believe for the Southern district UM, I think both of the emergency vacancies, but UM they will be at the back of the queue in terms of the hearing committee votes for votes. But can you blame the senators from those states as much as anyone else for the delay in the district
court nominees. No, because I think senators like those from New York Gillibrand and Schumer, Harris and Feinstein from California have worked very closely with the White House to offer a well qualified mainstream comedies that the White House been very close to move on vose. Thanks Carl. That's Carl Tobias at the University of Richmond Law School.