You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. Federal district courts in thirteen states are already dealing with shortages of judges that are considered judicial emergencies. What happens after the pandemic when the backlog of cases that have been put on hold is added to an already over tax system. Joining me is Carl Tobias, a professor at the University of Richmond Law School. So, first of all,
explain what a judicial emergency is. Well, when there's a vacancy in a particular court, the administrative officer of the U S courts looks at the time that vacancy has been open and how many cases each judge on the court is carrying, and they have a formula, and I believe the cut off on timing is something like eighteen months. But the one that's more important, I think for our purposes and from any courts in terms of the forty
four emergencies is the caseload. And for example, in the Central District of California in Los Angeles, most of the judges are carrying twice the average caseload other judges in the ninety three remaining districts around the country, and so when you have that kind of caseload, it's just very difficult to process all of the cases. And so the Administrative Office declares an emergency, and hopefully the Senate prioritizes with the White House those emergencies and tries to fill
them first, but that doesn't always happen. So a judicial vacancy is not the same as a judicial emergency. No, absolutely not. We now have seventy three district court vacancies at the trial level in the federal system, but forty four of these are emergencies, given they're huge caseloads and
sometimes the long periods they've been open. Now, let's just talk about some of the districts that really seem to be suffering, like the U. S. District Court for the Western District of Washington, five of seven judge ships are vacant. How long has that been going on and how do they even deal with that on a normal day. Well,
it's extremely difficult. And of course that was the center of where the virus started at least in the US, and a number of those they can have been more than a year, and some I think up to two or three years, and so that really makes it pressing. They do have senior judges and they are pitching in and have for a long time, but by definition they are older than active judges because you have to be sixty five and have fifteen years of service and of ors,
that might put them in a vulnerable population. Uh. And they've been working very hard for years now, and so Judge Martinez, the chief Judge, has been very concerned, and so they are talking about the possibility of bringing in judges from other districts, and of course that happens fairly often. Is is a practice that often is used in the federal judiciary to move resources around. For example, a judge in a less busy district, I believe the Eastern District
of Washington, mostly in Spokane. Some of the judges they're are willing to come over and help out in Seattle. And that's been an effective mechanism to use. And of course now most of the courts are essentially shuttered in many districts, especially for civil cases, but also some courts Central District, California, Eastern District have sought exemptions from the
Speedy Trial Act on the criminal law side. And so when and the courts do reopened, then there will be this huge pen up demand, at least on the civil side and probably on the criminal side. And so for the Western District of Washington, those issues are going to loom even larger. And the chief Judge, Martinez said he was concerned that there wouldn't be any new judges until one So it's going to be very difficult in that court to do very much, especially once the court is
open and trying to move the civil and criminal cases. Also, I wonder if the judges that they were going to call on are going to be backed up with their own cases once the courts reopened. Well, yes, and I think that's true. It will depend on the court. There are ninety four district courts around the country, and some of them have had less restrictions imposed, though I doubt
during many have no restrictions. The administrty of offs of the U. S Courts, the administrative arm of the federal courts, has probably pretty good data on what the case loads look like around the country and which judges are laboring under huge case loads and ones who have lighter case loads. And hopefully there could be some moving of judges around from the district sit are not so pressed as places like Washington or Central District of California. We've been talking
about this as an emergency for quite some time. And what's interesting is the two active judges in that district are eligible for retirement themselves at this point. But why no judges even in the pipeline there, Well, that's a good question. It's not clear, but the White House has been more solicitors of feeling vacancies in the red states
than the blue states. For example, thirty five of the forty four emergency vacancies are in Blue states like washing Ington, New York, Illinois, and California and New Jersey is probably the worst case scenario where there are six vacancies all emergencies out of seventeen judge ships, and no nominee from the Trump administration to date. Let's turn to the Central District of California. The chief judge there said they're not expecting any judges until late or early two and their
case load is over a thousand weighted cases. That's more than double the national average. What is a weighted case that looks at the type of case it is. In other words, some cases are easier and simpler to resolve than others. And so if you have a very complex case, that gets a very high waiting and so that's the way they try to balance out the case loads. And UM,
as you suggest, California Central District has huge vacancies. There are some nominees for their ten emergencies in Central District out of twenty seven, and so they're really in an extreme situation. However, their nominees for eight of those positions and three are on the floor awaiting UH confirmation votes. So I'm cautiously optimistic that those three will be confirmed UH and could well be confirmed whenever the Senate comes back, And so there's some hope that at least three of
them would be filled. And two of those are presently state judges at the super court level in I think Los Angeles County and so would be experienced judges and probably ready to take on these huge case loads. But for the others it will be more difficult. Of course, though some UM could have hearings and be confirmed. This year, the average judge will handle about five weighted cases. How do they even handle that many? That seems like an
enormous number of balls in the air, so to speak. Well, that's true, but they have many mechanisms and some help from magistrate judges and their clerks and court personnel. And don't forget, nine of civil and criminal cases settle. So it's not as if you're going to try all those cases. A tiny percentage are tried. Uh, And so that's the way the system tries to cope is to encourage settlements.
As far as the California judicial emergencies, a spokesman for Senate Majority Leader Mitch McConnell blamed the crisis on the California Democratic senators Diane Feinstein and Kamala Harris not allowing quote highly qualified nominees to move forward. Harris's spokeswoman told Bloomberg that she's worked diligently to advance more qualified nominees.
What's happening there the push and pull here, Well, you have to go back to the beginning of the Trump administration, and as we've talked about it before, the administration wanted to concentrate on filling all of the appellate court vacancies, and there were a number in California they have now filled, I believe for ap pellet vacancies, all with the President's choices all of whom were opposed by the to California senators, but there seemed to be some agreement on the district
nominees for what are now seventeen vacancies statewide. There are nominees for fourteen of those, and I don't have any sense that either senators opposed to any of those nominees. In fact, they returned their blue slips on all of them, and some, as we said, have hearings and are before on the Senate floor. So it's a little mystifying exactly what McConnell's spokesperson is saying. There seems to be substantial
cooperation from the senators. For those who haven't been listening to our conversations about these judges, explain the blue slip and how it's still being used for district court nominees. Yes, the Republicans essentially eliminated for the appeals courts, which enabled them to confirm record numbers of people and leave only one pellet vacancy nationwide out of seventy nine now, but Chairman Graham of the Senate Judiciary Committee has said he
would honor them for the district courts. So both Home state senators received blue slips from the chair when there's a nomination in their state, and then they may choose to return that, which signals that they agree the person should have a hearing and go through the process, or the senators can retain it and that would be the end of the nomination. And so the senators have returned to all of those blue slips for the nominees in California.
Are some senators push here about this. Let's talk about blue states because that's where most of the emergencies are are some of the senators push here about this, and that's why they're moving a little bit faster than let's say, California. We're New Jersey. Well they are, But some of it comes down to the relationship between the White House Council, who is really in charge of what happens in the White House on nominations UH and the home state senators.
For example, Senator Durban from Illinois has been very aggressive and very effective in working closely with the first White House Council and the present White House Council to secure nominations in a timely way and move them through the Senate.
He's very high in the leadership on the Democratic side and he's a longtime member of the committee, and he's been extremely successful, as has Senator Schumer Um by way of filling vacancies in New York and having nominees for present vacancies, though there's some vacancy still there, and so UH and Senator of Einstein is ranking member on Judiciary has enjoyed some success with district nominees from California, though they haven't been confirmed yet, and so it really depends
on Um, the senators from the Home States working closely and cooperatively with UH the White House, but there's plenty of blame to go around, and often the White House has not reached out or been as collegial as it
might be in working with the Home States senators. You mentioned before that California asking now for them to suspend the Speedy Trial Eastern District of California, the chief judge there as well as Chief Judge Phillips in the Central District, have asked the Nice Circuit Judicial Council to suspend the Speedy Trial Act because of the crunch of case loads. Will there be any problems with with attorneys for those defendants saying he or she has a constitutional right to
have a speedy trial. Well, yes, and that would be the argument that could well be made by individual council for specific defendants. And that's why they have these exceptions in the Speedy Trial Act, which act as a sort of safety valve. But by and large they're supposed to be speedy trials. That's Carl Tobias, a professor at the University of Richmond Law School. You're listening to Bloomberg Law
with June Grazzo from Bloomberg Radio. Drive through Easter Services took place in Kentucky after a new federal judge nominated to a high profile appeals court found that restrictions placed on those services were unconstitutional. But it wasn't the decision itself that attracted attention. It was the way Judge Justin Walker wrote that opinion. He begins by sighting St. Paul's Gospels rather than case law, and delves into the historical plight of Christians before getting to the case at hand.
About page seven more of a sermon than a legal decision, joining me, as Josh Blackman, a constitutional law professor at the South Texas College of Law, tell us about the decision itself, was it in line with legal authority? Was he correct When you look at this decision, I think Cats considered the timeline. The timeline is very important here. You have eastern Sunday, you have these emergency papers filed on Thursday and into Friday, and then you are ruling
on Saturday. My objection to this ruling w so much the outcome. I think he probably got the law right. My objection to this ruling was the fact that it even needs to happen. M Had the court held a short twenty minute status conference, he could have gotten the mayor's position, and I think the mayor would have said that we are not going to take any action against the churchgoers. At that point, the motion for a temporary
straining order against the mayor becomes moot. Perhaps there will be some relief against the governor or the state police, but would not be against the City of Louisville. So I think the decision was probably right on the merits. But it isn't clear to me that this decision needs to happen, that you need to issue an injunction against the mayor because he didn't plan to take action in the first place. What about the way he wrote the opinion.
He begins by citing St. Paul's Gospel. According to St. Paul, the first Pilgrim was able. He talks about the passion of Christ, the plight of Christians. What was your reaction into just the way this sounded more like a sermon than a legal opinion. It sounded like a sermon. Um. I I was. I was concurprised by the tone. UM. I also think that parts of it were a little bit political. Um. He was talking about history of a religious discrimination and he mentioned that KKK, which has a
lot of religious scrimination. And he noted that Justice Hugo Black and the Democratic Majority leader Robert Burger clans members. Um. That's fairly well known in legal circles. But who cares, right, it's not relevant. I mean, I suppose it's relevant show that clans members reach high ranked society, but it's taken on a political tone in modern day usage. Um. I think the opinion could have been a lot shorter to
have gotten the point quicker. And I didn't think a lot of the rhetoric was really helpful to the analysis. But was it appropriate even to be talking about the passion of Christ and ending with Grayer almost saying Christ being there for us and have faith in that. Is that even appropriate? I don't think I've ever seen an opinion quite like it. Um. Perhaps the judge thought it was appropriate given the subject matter Easter, but I have not seen something like it. I I it was a
new one for me. So now we come to the point of why. So this is a judge who has been a federal judge for about six months after getting an unqualified rating from the American Bar Association, but President Trump has nominated him to the d C. Circuit Court of Appeals, considered the second highest court in the land. Did he look at this as almost an audition for that spot or a higher spot? Um? So a few points June. The audition criticism is not new. UM. We've
seen that in the past. And I'll give you a couple examples. UM. When Judge Roberts was on, was in the consideration to be to fill the rank with seat back in or actually with your Connor seat back. In two thousand five, UM, Judge Roberts issued a decision on a Guantanmo case that was very much pro Bush administration, UM, and it helped the Bush administration on an important detention issue. UM. A lot of people said that Roberts wrote that opinion as an audition tape for the Supreme Court and he
was actually picked eventually. I don't think so. I think Roberts wrote what he actually thinks and would have written in any circumstance. Um. There was another audition issue involving Judge so to Mayor when she was in the Second Circuit time. This is in two thousand I guess the nine or so. UM. She was on the shortlist for the Supreme Court. And it was widely known that Judge Suitor addressed Suitor was going to retire, and the Second Circuit had a case involving a racial preferences. The case
involved Frank Ricci, who was a New Haven firefighters. Is a very well known case you probably recall, um, and this is a huge case. And the Second Circuit panel that heard included Judge out of Mayor, and rather than actually engaging the issue, the panel with his very short pecure opinion as an unsigned opinion that basically blew off the issue. And Judge Jobrand has wrote the scathing descent thing, what are you doing? This is such an important issue?
How can you treated so casually? And it was widely assumed that Mayor wrote that to make her confirmation easier. And I'm skeptical as argents, I think judges do what they do for other reasons. UM. I I don't like reading that intense into people. UM. And eventually Supreme Court reverse out of my yore uh. And this was a huge issue in her confirmation hearing. So going to Judge Walker, I think he would have handled this case exactly the
same if he had never been nominated. I think this is probably what he thinks about the case independent of his nomination. UM. Indeed, the fact that he's a been nominated means he's not auditioning as much he got. He basically has the job unless this opinion alienated people, which could actually backfire. But he didn't need to suck up to anyone to get this nomination. He already has it. UM. So I'm skeptical June of the of the audition point. I don't um after the A, B A, I have
an overly critical, overtly critical of their view process. UM. The unqualified rating that they give doesn't always mean what you think it means. I think a lot of case has been it's been given in a unfair fashion. Um. To be Frank, justin, Judge Walker has not had a lot of legal experience, and that might be a ground to knock him is unqualified. But a lot of other people were being unqualified the basis of like their character and people like them or not. These are sort of
subjective factors. Is it odd that you take someone who is thirty eight years old, who has been on the bench for about six months and nominate him to d C Circuit Court of Appeals, which is a feeder sort of for the Supreme Court. Isn't that a stretch? Yeah? I mean, look, June, I'll Frank, there was a very long line of people who were waiting for the DC Circuit seat. These are people have been partners at prominent
law firms, prominent academics, UM judges and other courts. UM. There were a lot of people who were head of the line. UM, and I think the the obvious answer is miss McConnell wanted his person. McConnell's made no secret
about this, UM and Mitch McConnell's cloud. UM. Now, we've had a lot of young judges appointed to the Courts of Appeals with no judicial experience during the Reagan administration, and I think Judge Edith Jones was thirty eight or so, and she's now a prominent circuit judge with she's well known and everyone likes her, but she's very well she was bestly well respected. A lot of people don't like her. I like her, I'm a fan of hers, but but
she's very well known. Judge J. Harvey Wilkinson on the fourth Circuit I think it was thirty seven or thirty eight. The other one is Alex Kazinski. That's Internet so well, maybe it's not such a good idea. I don't know. Maybe I think my point back the social climbers who get there so young, maybe aren't. But I think as a general matter, age is not a a permanentis qualifier. I think, more than anything else, Judge Walker got that nomination in part because of Senator McConnell's sway, and he
McConnell has a lot of sway. I think in the history there are not many new district court judges who put up although I think Judge sent Tell, if memory, serves as a district judge in North Carolina. Uh and he had been a judge for not a terribly long time, but he had been a district judge at the time, as the called, Senator Helms was very influential, and Senator Helms pushed Reagan to put Sentel in the DC circuit. So there there is, you know, some president called good
or bad, but there's some precedent for this move. Majority Leader McConnell tweeted about the decision and praised it, as did did the other Kentucky Senator Ran Paul. But does a decision like this add to the problems of the culture war that seemed to be almost exacerbated during this pandemic. Yeah, I mean, look, I June, you can't stop politicians from politicians. When politicians and see things they like, they praise it. So of course McConnell or Rand Paul sees something like
they're gonna they're going to celebrate. I think that's that's unavoidable. Um. I think Judge Walker could have done well to have avoided the sort of toxic culture and these issues in this difficult time by maybe issuing a more moderately worded opinion and perhaps asking to see of Louisville what your plans are before assuing this ruling. I think the entire case could have been to be mooted by the fact that there's really no needs resolve. It is for you.
Now ask you about something else while I have you on. The Department of Justice announced a tweet that Attorney General William Barr is getting ready to sue states that limit the ability of parishioners to pray together during the pandemic. I'm wondering what the boundaries are here as far as parishioners being able to get together during this time. I think DJ has actually even moved ahead. There was a case filed in Mississippi, I believe, challenging one of these
bands on people meeting in houses of worship. The Department of Justice filed what's called a statement of interest, which is not exactly a lawsuit. It's kind of like an amicus brief, Friends of the Court brief. So d J has gotten involved. Look, I'll be honest, these issues are very tough. Generally, the government under the free Exercise Clause can't single out religion for certain burdens. Stay at home orders aren't really singling out religion. They apply to all institutions.
You can't meet more than ten people. But then they're exceptions right where you carve it. All these various exceptions, So why can you have a drive through Wendy's but not a drive through church. Thanks for being on Bloomberg Law. Josh. That's Josh Plackman, a constitutional law professor at the South Texas College of Law. Thanks for listening to the Bloomberg Law podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast.
I'm June Grosso. This is Bloomberg returned to Jack