Mayorkas Impeachment & Oldest Judge Loses Case - podcast episode cover

Mayorkas Impeachment & Oldest Judge Loses Case

Feb 14, 202439 min
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Episode description

Frank Bowman, a professor at the University of Missouri Law School, discusses the impeachment of the Secretary of Homeland Security Alejandro Mayorkas. Arthur Hellman, a professor at the University of Pittsburgh Law School, discusses 96-year-old Judge Pauline Newman’s failed efforts to get reinstated. June Grasso hosts.

See omnystudio.com/listener for privacy information.

Transcript

Speaker 1

This is Bloomberg Law with June Grosso from Bloomberg Radio.

Speaker 2

Welcome to the Bloomberg Law Show. I'm June Grosso. The House impeaches Homeland Security Secretary Alejandro Majorcis on its second try. What will the Senate do? And the country's oldest judge loses her fight to be reinstated.

Speaker 1

On this vote the Yaser two fourteen and the NASER two thirteen, the resolution is adopted.

Speaker 2

House Republicans finally got that one vote margin necessary to impeach Homeland Security Secretary Alejandro Majorcis in a redo of their failed attempt last week. Majorcis, the first Latino and immigrant to head the department, is only the second cabinet member in US history and the first in almost one hundred and fifty years to be impeached. The impeachment articles charged Majorcis with failing to US immigration law. The allegations

are baseless and I'm focused on the work. There's virtually no chance the Senate will have the necessary two thirds majority to convict Majorcis and remove him from office. Despite that, the House went forward with impeachment, succeeding with the vote of Republican Majority Leader Steve Scalice who returned to Washington after being away for cancer treatments.

Speaker 3

And if they ignore this, then there will be accountability and consequences to that action.

Speaker 1

So it's on the Senate.

Speaker 2

Several leading conservative scholars, along with former Homeland Security secretaries from both Republican and Democratic administrations, have dismissed the Majorcis impeachment as unwarranted or a waste of time, as has House Minority Leader HACKEM Jeffreys.

Speaker 1

This is extraordinary.

Speaker 3

This is the height of cynicism. Once again, they are embracing chaos and walking away from common sense.

Speaker 2

Joining me is an expert in impeachment, Frank Bowman, a professor of the u University of Missouri Law School, who justified before the Homeland Security Committee in January. They voted to impeach him on accounts of wilful and systemic refusal to comply with the law and reach of public trust relating to his handling of immigration and security at the border. Even if proved, does that rise to the level of high crimes and misdemeanors?

Speaker 3

Well, with respect to the first claim that he actually willfully violated the law on a matter that was real seriousness I mean, I suppose if it were true, we could have a conversation. But it's not true. It's name close to true. The best they can say is that he used the discretion conferred on him by law to interpret and apply a series of immigrasion laws which are both contradictory and confusing, and he did that in conformity with the directives of the President. There simply is no

indication at all that he's violating the law. I mean, the primary thing that they claim he's violating the law on is the claim that the law a choirs that people who are in the country illegally must be detained and that they cannot be be paroled. Well, it's just

not true. I mean, the law itself has plenty of parole provisions, And in fact, on that particular point, the United States Supreme Court has actually held any one of the series of lawsuits brought against the Department and Secretary of America's by some state for public coustrians general, the Supreme Court's actually held that detention is not mandatory. So the thing that they are claiming he's violating the law on the Supreme Court has basically said, no, that's not true.

It's really quite remarkable. So we don't even need to get to the question of whether or not, in some hypothetical case, a sufficiently serious and plain violation of law would in itself be impeachable. The answer, I suppose, in theory, in the right case might be yes. But he hasn't violated the law. What they've got is a series of lawsuits against him in which, you know, in the lower courts they've won some and they've lost them, and the only two that made it up to the Supreme Court,

the Republicans have lost. They don't have a final judgment against him suggesting that he's violated the law. It's all it's all made up.

Speaker 2

What about this breach of public trust? That's pretty broad?

Speaker 3

Well, that is in a piece I wrote on my blog, I refer to that count as a ragpicker's bizarre because it's just got a bunch of stuff in it. For example, they claim he made false statements to the committee. No he didn't. The claimed false statements that they are alleging he made are cases in which they're basically disagreeing with

his use of adjectives and adverbs. In other words, they claim that he falsely claimed that apprehended aliens of no legal basis from in the United States were being quickly removed. The only thing to disagree with that is the word quickly. They're impeaching him because they don't like his use of the adjective quickly to modify removed. In other cases, he described the border as being secure or no less secure than it was previously. They claim that's a false statement.

At most, it's an opinion about the efficiency of his administration and his agency. And we know, first of all, from the very time of the framing that matters of opinion are not matters appropriate for impeachment. But in any case, if it were an impeachable offense for someone to go into Congress and provide a generous and even optimistic assessment of the performance of our an agency, or for example, a congressman to provide a generous spin on some matter

of public policy, everybody would be impeachable. There is not a single instance of an actual false statement if they allege in this article. So that's one thing they claim. In that second article, they claim that there was an obstruction of congressional oversight. Well for Republicans who defended Donald Trump to claim that anybody else to be impeachable for obstruction of congressional oversight would make a dog to laugh. And it's simply not true that my ARC has substructed

congressional oversight. He has testified somebody twenty seven times before various congressional committees. Multiple times before this committee, he've made like ninety witnesses available to Congress. And the question about the operations, the department provided tens of thousands of pages

of documents. And when I learned when the committee wanted to examine him him testify one more time, he responded by saying, well, a particular day you've asked me to come, I'm actually meeting with Mexican officials to talk about border issues. Can we reschedule it? And they refused and went ahead. An impeached in p obstruction. I mean, it's a joke.

There is absolutely nothing in either of these articles. And I think that fact that that is so is indicated by the fact that they could not find a single legal expert of any kind, not a legal historian, not a constitutional scholar, not a judge, not a lawyer, not a single person could they find to come down to Congress and say, yes, does a constitutional matter what you're alleging is impeachable because not.

Speaker 2

There Also, just hours before the vote, the US Border Patrol released new data showing that the number of migrants illegally crossing the southern border with Mexico plummeted by fifty percent in January compared with December. Who knows why, But does that mitigate against them impeaching him?

Speaker 3

Well, performance numbers shouldn't be a matter of impeachability, right, I mean, that's the key here. Impeachment is a constitutional mechanism that is reserved for the most serious kinds of offenses. That's why if you can only bepeached for treason, bibrary or other high crimes and misdemeanors. Is a grave constitutional tool for the most serious of matters. It is not something that you trot out simply because you disagree with administration policy or you find the performance of a particular

cabinet officer to be below your standards. I mean, does there reason that myorcis is only the second CABT officer ever to be impeached. It's because for two hundred and thirty five years, everybody understood that's the case, that you don't impeach people for policy differences. If you do, why you'd be impeaching people left right sideways. The only Capint officer who's ever been impeached was a guy who flagrantly

committed bribery. The Republicans are stepping into dangerous new ground here where they're simply saying, well, anytime we don't like something the administration is doing, we can simply impeach the person who happens to be the head of the department who's doing most of it. So I don't think that it matters at all what the particular numbers are for

impeachment purposes. However, that does take us into the larger picture here, which is, even if your theory is I can impeach an officer because I'm really really upset about the conduct of a particular policy area by the administration, the real thing you should be doing, actually is you should be passing legislation to address the problem that you're

so upset about. But of course, as we know, within the last ten days or so, a bipartisan group of senators negotiated a real piece of legislation would have made very significant changes to immigration enforcement in this country. And then the very same people who want to impeachment arca is basically squashed it at the behest of the Donald Trump because they don't want to solve the problem, they want to run on it. And that's all this is.

Speaker 2

The House has appointed eleven Republicans to serve as impeachment managers, so then this goes over to the Senate. Does the Senate have to hold a trial?

Speaker 3

An interesting question constitutionally, It's one we talked about in the first Trump case. I don't know the answer. Nobody really knows the answer, but certainly it appears that the Senate has concluded that the majority leader has concluded that something has to happen, that the Senate has to address it, because I gather that they're going to commence something on the twenty sixth.

Speaker 2

Well, he said that the appointed House Republican impeachment managers will present the articles to the Senate when Senators return to Washington at the end of the month, and then the Senate Press in pro tam Patty Murray will preside over a trial. But I'm wondering if there is any way around that.

Speaker 3

There is a mechanism by which one could avoid holding this full trial. Commonly for the last several decades, at least for lesser officers people other than presidents. They've created a trial committee that will simply hold hearings, present a report to the full Senate, and the full Senate votes.

I don't even think that will happen here. My best guess is that some sort of trial will be convened, and that the presiding officer will probably entertain a motion to dismiss the case upfront without the presentation of evidence, and that will be taken, and my guess the whole

thing will be dismissed without any evidence being presented. I don't know that, no inside information on that point, but something like that email, remember, actually was attempted in certainly I think the second Trump case, where there's an emotion to dismiss based on the alleged lack of jurisdiction, and that motion failed and they went forward with something the nature of trial. I think in this case the emotion will be a very probably and that will be the end of it. Now.

Speaker 2

Majorcis is not the only Biden administration official that House Republicans want to impeach. They're of course looking into impeaching President Biden. They file legislation to impeach a list including Vice President Kamala Harris, Attorney General Merrick Garland, FBI Director Christopher Ray, and Defense Secretary Lloyd Austin. What is wrong with this picture?

Speaker 3

I mean one has to avoid overreacting a little bit in the sense that individual outlying members of the House that both parties have over time sometimes introduced resolutions to try to impeach this person or that person because they were ticked off. What's different here, obviously, is that what we have here is not simply the actions of one or two eccentrics. What we have here is a concerted effort by House Republicans to impeach people from the President

on down without any grounds. And that is very very bad. I mean, first, it terribly devalues the institute of impeachment itself, which is supposed to be reserved for the most serious instances of very grave official misconduct. If you are taking seriously, completely non serious allegations on a regular basis, then when something really serious comes along, it's too easy to dismiss it.

So that's problem number one. And the other problem, of course, is that they're very likely to lead us down a path of sort of endless taliatory impeachment or impeachment investigations.

And at this point the phenomenon is limited to Republican but you know, Democrats are not saints, and should control of the House shift and Democrats be based with a Republican president, I think there's leasting to be a temptation for them doesn't start doing the same sort of performantive foolishness, and that not only devalues impeachment, but it devalues the seriousness of the entire institution. It makes the House look silly,

It wastes their time. It means that people looking on from afar are likely think that anytime anybody raises impeachment, this isn't serious. This is just people being fools. And that's terrible. It's terribly dangerous. It removes one of the important constitutional protections against really's serious misconduct, and it just wastes the country time, it wastes the House's time. Republicans are doing something remarkably dangerous and remarkably wish well.

Speaker 2

We'll see what happens in this case. On February twenty sixth, Thanks so much, Frank. That's Professor Frank Bowman of the University of Missouri Law School. Coming up next, a ninety six year old judge loses her fight to be reinstated.

This is Bloomberg. Ninety six year old judge Pauline Newman, known for her descents and expertise in patent law, has set on the Federal Circuit Court of Appeals for almost forty years, but for the last year she's been fighting her suspension from the bench for refusing to undergo medical testing as part of an investigation into her fitness.

Speaker 1

I think nation needs my voice. I think that if the judges on this court are willing and more than willing to push me out in order to get me out of the way so that no one says that they've made a mistake, that I need to be here to countermand that.

Speaker 2

Her prospects for reinstatement appeared dim after most of her lawsuit challenging her suspension was dismissed on Monday by a DC federal judge, and the US Judicial Conference's Committee on Conduct and Disability upheld the suspension last week. Joining me is Arthur Hellman, a professor at the University of Pittsburgh Law School who helped draft the laws courts use to Police Judges Arthur. This case has gone off in so many different directions, so perhaps we should start at the beginning.

Her fellow jurists on the US Court of Appeals for the Federal Circuit voted unanimously in September to bar her from getting new case assignments for at least a year, or until she sat for court ordered medical examinations. How did we get to that point.

Speaker 4

Well, it's been a rather twisted path, and as you point out, it started back actually, I think in February or March of last year, so we're now one year

into this very lengthy proceeding. But the Chief Judge of the Circuit, Chief Judge Kimberly Moore, received reports from primarily staff employees of the Federal Circuit that Judge Newman seemed to be having cognitive or behavioral problems, and that led Chief Judge Moore initially to deny Judge Newman the opportunity to sit on the monthly panels for April and May

of last year. And Judge Moore also identified a complaint against Judge Newman under the Judicial Conduct and Disability Act of nineteen eighty that started an investigation which was carried out by a special committee of the Federal Circuit Judges, three judges, including Judge Moore, that was to investigate the complaints primarily of disability, but that included a request or really an order, to Judge Newman to undergo some neurological

testing submit some medical reports. Judge Newman refused to do any of those things, and that led Chief Judge Moore to add a complaint of judicial misconduct against Judge Newman. And that is what we're dealing with now. The underlying concern is about disability, but for almost the last year, the entire focus has been on this conduct, specifically failure to cooperate with the special committee.

Speaker 2

And it's very unusual for the public to have a window into these kinds of proceedings, and it seemed to get very personal, very fast.

Speaker 4

Well, it's not only unusual, it's unprecedent that nothing like this has ever happened. I mean, ordinarily, all of this would be going on in private, and in almost all other cases it would have been resolved privately, and all we would have known was the ultimate resolution. And yes, you know, I'm speaking as an outsider. I have no

personal knowledge any of the individuals involved. But my sense, you know, from talking to people and from reading some of the blog commentaries, is that it does appear to be somewhat personal, which makes it especially regrettable. Chief Judge Moor did not take the opportunity to request Chief Justice

Roberts to transfer this proceeding to another circuit. He could have done that under the rules, and I think if she had done that, we would be looking at a very different sort of proceeding at this point, which perhaps a happier outcome.

Speaker 2

A seven judge panel of the Judicial Conference of the United States Committee on Judicial Conduct and Disability, which I hadn't heard of until this case, said in a written decision that Newman didn't have good cause to refuse to cooperate with the Appeals Court investigation. Tell us about the decision.

Speaker 4

Yes, as you've mentioned, this is a committee, a standing committee of the Judicial Conference of the United States, and that's a little known body, but it's a very important one because it's the administrative policymaking body of the national federal Judiciary. And the statute that established the Judicial Conduct and Disability Proceeding authorizes the Judicial Conference to delegate its responsibilities under the Act to a standing Committee, which it

has done. So, this standing Committee reviewed the order of these Circuit councils suspending Judge Newman, and went through each of Judge Newman's objections to the preceding, rejected each of them and affirmed the order. I think it's pretty important to emphasize that throughout the Judicial Conference Committee adopted a standard of deferential reviews that basically, the Committee decided that it would reverse or reject the Council's conclusions only if

the Council abused its discretion. And that's a hard standard to me, and in my view, one that was not entirely appropriate here where you have a body of judges suspending an article free judge from hearing cases for a substantial period of time.

Speaker 2

And this is unusual, right. It was just the third written decision issued by the Panel in more than three years.

Speaker 4

Yes, the Panel does not issue very many decisions. That assumes, of course, that all of their decisions are public. It may be that they do some work behind the scenes. For example, there's a reference in the opinion just issued to the fact that Judge Newman's council asked for interlocutory or immediate review of some of the Judicial Council orders the Conduct Committee. The Judicial Conference Committee rejected that request,

but there is no published order separately reflecting that. So there may be some other things that the Committee has done behind the scenes. But you're right, the formal orders are very rare. It's unusual to have more than one or two a.

Speaker 2

Year as far as this, because there are a lot of moving pieces here. As far as the Judicial Conference's decision, is there an appeal from that possible?

Speaker 4

That's a very interesting question because under the rules that were adopted by the Judicial Conference to govern these proceedings, the full Judicial Conference does have the power to review a decision by the Standing Committee. There is no right to review by Judge Newman or anyone else, but the Full Conference does have the authority to do so, and I think there would be a appropriate to do so here.

There was actually a very interesting and little notice proceeding just last year in another case proceeding under the Act, where the Judicial Council had affirmed a decision by a Chief Judge which dismissed a complaint. This was a complaint involving an assertion that two judges had hired a law clerk who engaged in some allegedly racist behavior, and the Council was the case that had been transferred to another circuit. The Council dismissed that complaint. The complainant appealed to the

Judicial Conference Standing Committee. The Standing Committee directed the Judicial Council to reopen the investigation, and the two judges then argued that that order, the order requiring reopening, is contrary to the statute and the Judicial Council the second circuit.

The Judicial Council asked the Full Judicial Conference to give an opinion on that question, and to my great surprise, the Judicial Conference said that the rule authorizing that reopening, which has been promulgated by his Judicial Conference, was contrary to statue, which indeed it is. And I will just say that I made that argument many years ago when the rule was first adopted. So we have a very recent episode in which the Full Judicial Conference has in

effect overruled the Standing Committee. So that could happen here also, I don't expect it, but it could happen, and I have the power to do that.

Speaker 2

Let me just get one thing straight. If she agrees to go for medical examinations, can she lift her suspension.

Speaker 4

It's possible, but it is all in the hands of the Judicial Counsel. I think the Judicial Council orders are very clear that they will not allow her to hear cases again unless she complies with the Special Committee's various orders. But as I read their orders, they are not guaranteeing that if she does, they will let her rehear cases. And I think she is now what ninety six years old, so time is against her ever hearing cases again.

Speaker 2

I have to say, so this is proceeding on one track. Then she sued the Judicial Council, which includes the Chief Judge Kimberly Moore and the Federal Circuit's other active judges in the DC Federal District Court, and on Monday, the District Court judge dismissed most of her suit.

Speaker 4

Yes, allowed a little bit of it to go forward a low as I read the order, it's allowing it to go forward, not really leaving much of a chance for Judge Newman. It's allowing it to go forward on what is called facial challenges to the Act. In other words, arguments that the Act itself is unconstitutional on its face

in authorizing some of the things it did. Well. A facial challenge to an act of Congress is a very very hard challenge to succeed in, which is why I say that I don't think it leaves much room for Judge Newman to prevail. The Government will now make a motion to get rid of the rest of the case, and I suspect that the District Court will do that. It's a very thorough and careful opinion, but I don't think it holds out much hope for Judge Newman.

Speaker 2

Coming up next, I'll continue this conversation with Professor Arthur Hellman and we'll talk about whether the federal judiciary is facing the problem of aging judges. A Law Review article in twenty twenty found that seventy five percent to federal judges die while still serving on the bench. 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 Bloomberg dot com Slash podcast Slash Law.

I'm June Grosso, and you're listening to Bloomberg. Ninety six year old Judge Pauline Newman has sat on the Federal Circuit Court of Appeals for almost forty years and refuse to retire or even take senior status.

Speaker 1

I thought, what what will I do now. I don't want to be a litigator. I don't want to be a mediator. I'd rather decide rather than mediate, as many judges do. If I had her family by that time, I would have had those great grandchildren, I suppose. But I didn't take that path. I don't know why, but I didn't.

Speaker 2

But she was suspended from the bench for refusing to undergo medical testing as part of an investigation into her fit witness, and she's been fighting that suspension for the last year. Her prospects for reinstatement appeared dim after most of her lawsuit challenging her suspension was dismissed on Monday by a DC District Court judge. I've been talking to ethics expert Arthur Hellman, a professor at the University of

Pittsburgh Law School. Federal Judge Christopher Cooper said in the decision that earlier cases have quote consistently affirmed the judiciary's authority to police itself. Arthur explained how that fits in with Judge Newman's claims in the lawsuit.

Speaker 4

That's underlying the basic argument here that the Judge Newman is making high level is that under the Constitution an Article three, judge Judge Newman can be removed from office only by the process of impeachment in the House and then a trial and the Senate. And this suspension for one year, which could be longer, is the functional equivalent of removing her from office, and as such is not

authorized by the Constitution. But the Council argues, and the DC Circuit has actually held that some suspensions are permitted by the Constitution under the statute that Congress passed. So that's why I say it's an uphill battleist and precedent in this very circuit against the constitutional argument that Judge Newman is making.

Speaker 2

Apparently, this proceeding has led to calls to change the statutory framework for evaluating judges for potential disability and misconduct. Is there any agreement on what changes should be made, and do you think changes should be made?

Speaker 4

I do think this episode has revealed some flaws in the system that nobody has seen before. I mean, some of them would be pretty easy to correct. You wouldn't even need the statute, good example, to put into the rules that if you have a complaint against a circuit judge and the Chief judge is not going to dismiss it. That ought to go to the Chief Justice to decide whether to transfer that. That would be a simple change in the rule under this statute. Maybe some of this

could be done by rule. Also, I do think that when you have an intrusive order like this one requiring a judge to undergo a neuropsychological examination to provide intimate medical details, there ought to be a little bit more process. For example, that the committee should hold some sort of hearing at which the witnesses could be cross examined by the judge. And assuming that the Committee goes ahead with the request or order, I would like to see immediate

review available of that. I would also like to see situations like this where you have a proceeding that can result in an Article three judge being told she can't hear cases anymore for a substantial period of time. I would like to see the review by the National Committee as an independent review, not simply abusive discretion as was

done here. I don't think those are major changes. Still preserves the same framework, but I think you could build in some protections that would not greatly extend the process, but would assure everybody that a federal judge who has been appointed by the President and confirmed by the Senate is not being effectively ousted from office by a process that people can legitimately question.

Speaker 2

Now, this has also focused the debate on the aging judiciary we have and judges who have lifetime appointments. And Francis Shen, who's on the faculty at Harvard Medical Schools Center for Law, wrote a Law review article in twenty twenty that found that seventy five percent of judges die while still serving, and the average age of judges in federal judges in twenty seventeen was sixty nine. I mean, do you see this as a concern.

Speaker 4

Well, it's certainly something that people should be and are looking at. One thing. I wonder about those figures. I suspect that those figures include senior judges. And it's important to emphasize that a senior judge is a judge who may well be sitting and hearing cases, but under the statute, a senior judge can hear cases only to the extent

authorized by the chief Judge or the Circuit Council. And the one of the things we haven't mentioned in our discussion of the very lengthy proceedings here is that at the very start Chief Judge Moore was urging Judge Newman to take senior status, and Judge Newman refused. And I'm sure that a very large part of her refusal reason for the refusal was that her ability to hear cases would then be entirely dependent on whether the Chief Judge

allowed it. And that suggests to me that another line of possible reform here, and it addresses exactly the problem you focused on. It. It's something we need to be looking at. One possibility would be again procedural. I'm a proceduralist,

and I do look for procedural solutions. But if a judge who is in a position to take senior status could be assured that her ability in the future to hear cases was not dependent on a single individual, or perhaps even on the members of that circuit's council, the judge might be willing to go ahead, confident that it will be a different group, perhaps with some channels of review, so that the judge's ability to hear cases would not be controlled by a single individual or a small group

of her colleagues.

Speaker 2

So I found this somewhat concerning Eliza Shatzman, founder of the Legal Accountability Project, said, we hear from a lot of clerks working for judges who are too old to serve. In most instances, law clerks and other judicial employees stay silent due to potential reputational harms that could result from blowing the whistle. And that rings true because the legal profession sometimes seems very small and things get around quickly. What can be done well?

Speaker 4

I think, first of all, the Judicial Conference has adopted some procedures that are designed to deal with that situation. This was done in the wake of the allegation of sexual harassment, which is a different kind of problem but calls for a similar solution, because again, the concern was,

and there's certainly some reason to recognize that concern. The concern was that law clerks and other court employees who were in the best position to identify either misconduct or disability on the part of the judge, were not reporting it because of the sphere of retaliation. As I said, the Judicial Conference has taken some steps, they can probably

do more. I mean, my own thought has been to establish a kind of portal through which any employee with a concern about a judge, whether it's misconduct or disability, could communicate that to the chief judge, and the chief judge would then investigate it while at the same time

protecting the employee from retaliation. There are limits to that, obviously, because as you say, it's a small profession, and in a small court for example, or a court with only a handful of judges, it's very difficult to do that. But I think there's probably more, even more that the judiciary could do. But I want to emphasize the judiciary is at this point quite sensitive to that, and they are trying through eder procedures, anonymous reporting, reporting to judiciary

officials outside the circuit. They're trying a number of things to do that. But it is more, as you say, the fear of employees is very very real.

Speaker 2

And Arthur, at one point, Judge Newman's attorney said they would appeal to the Supreme Court if necessary. Is this a case that the Supreme Court would want to take?

Speaker 4

If the District court ruling is affirmed by the Court of Appeals, as I expect it would be, that can be taken to the Supreme Court discretionary review. I would doubt very much that the Court would want to get involved in this. The system is in place. The way to deal with it, I think is through the Judicial Conference and through Congress. I mean, we haven't talked much about Congress here. This system was basically established in nineteen eighty.

There was some tweaks in what was in nineteen ninety and two thousand and two in a statute I helped to write, but even that's now more than twenty years and this is something that Congress might want to take another look at. Unfortunately, given the polarization and gridlock in Washington, I don't hold out much hope for that, but I would not expect the Supreme Court to get involved.

Speaker 2

Are there before I let you go, will you sort of recap where Judge Newman can.

Speaker 4

Appeal capitulate Again, we have the two tracks here, and it really, as you've mentioned, at the outset, there's just so much going on it's sometimes hard to disentangle these. But the order of the Judicial Conference Committee can be reviewed by the Judicial Conference, so we may yet see that. I don't expect it, but we might see it. Turning now to the District Court proceeding. The District Court proceeding is still going on, because, as you mentioned, not all

of the claims were dismissed. Not all of accounts and the complaint were dismissed, so there will be further briefing and perhaps arguments on the rest of the case. Judge Cooper will then enter a final judgment, which I expect

will probably throw out the whole case. And then at that point, with a final judgment against her, Judge Newman could appeal to the DC Court of Appeals, and given the precedent and the DC Court of Appeals, I would expect that to be a firm So at this point, if somebody asked me, you know, what is the channel most likely to give Judge Newman some kind of relief, it would probably be the full judicial conference, but I think the odds are against that also.

Speaker 2

Well, Judge Newman certainly took every legal path open to challenge this suspension. You have to say that thanks so much Arthur for helping untangle all this. That's Professor Arthur Hellman of the University of Pittsburgh Law School, and that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts. Spotify and

at Bloomberg dot com, slash podcast slash Law. I'm June Grosso and this is Bloomberg

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