This is Bloomberg Law with June Grasso. After a decade long hiatus, President Trump wants to resume federal executions, and two of his judicial appointees have brought him a step closer to that goal. Trump appointees Gregory Katsis and Naomi Rao on the d C. Circuit Court of Appeals upended an injunction that had stopped the Justice Department from carrying out the death penalty. Joining me is Jordan Reuben Bloomberg Law Editor Jordan. This was a split decision two to one.
The two Trump appointees versus a Clinton appointee tell us about it. So last summer, Attorney General William Barr announced that the federal government was going to resume federal executions, and with it unveiled a new protocol for doing so.
The problem with that, according to litigation brought by several federal prisoners, is that this protocol runs a foul of multiple laws, according to them, including something called the Federal Death Penalty Act, which puts pretty stringent requirements according to them anyway, on how the government is allowed to carry out executions. And so what we've seen in this latest decision is the latest ruling on this very complex litigation
about capital punishment. So the Federal Death Penalty Act says, the manner in which the death sentence is imposed is prescribed by the law of the state where it's being carried out. Explain why that seems to be a critical problem, right, So the arguments really are being fought on this sort of hyper technical ground that almost all comes down to
what the word manner means. The debate, or at least a big part of it anyway, is whether manner means just, let's say, the type of execution, say, whether it's lethal injection versus e execution, or whether it's really getting much more into the minutia of that, say, when it comes to lethal injection, whether it means really how that specific
lethal injection is being in minister. So the prisoners, of course are arguing for the latter interpretation, and the Trump administration is arguing for the former, and there are many
arguments about that. And even in this latest decision, even though this was a two to one decision with the two Trump appointees in the majority, even within them they didn't totally agree on the analysis of why it is that the prisoners should lose So will the prisoners here ask for an on bank review by the full DC Circuit and is there a good chance of getting that
since the two judges in the majority here had differing reasons. Well, taking the first part of that question, I think that there is a good chance that the plaintiff prisoners will seek further review in front of the full on Bank DC Circuit. That's at least according to a statement from their lawyer following the ruling that at least hinted at that. Now the opinion itself said that the case should be sent back to the trial court, where there are even
more issues than just this federal Death Penalty Act. So there are multiple directions in which the case could go, whether it's going further back down to the trial courts, so to speak, or further back up to the full on Bok DC Circuit, and then potentially even to the Supreme Court, where this case actually was back in December until it went back down to the d C Circuit against We're seeing a lot of up and down with
this very complex litigation. Tell us what happened at the Supreme Court and whether there were any hints from any of the justices about how they might finally rule in a case like this, right, So, taking us all the way back to December, if we can remember that time, that's when the federal government wanted to jump start these executions,
so to speak. And so after the federal trial judge and Washington in November preliminarily enjoined the government from carrying out these executions, the government then saw it on a very expedited basis to try and get that ruling overturned. And so that took them all the way up to the Supreme Court, where in December the Supreme Court did
not rule in the government's favor. However, three justices of Samuel Ledo, Neil Gorsuch, and Brett Kavanaugh said in a statement at the time essentially that the government should win and if the case comes back to them on the merits of the dispute, then at least those three justices are likely to rule for the government. And how has the Supreme Court ruled on death penalty cases in general? Well, the death penalty being a controversial issue not just at
the Supreme Court but everywhere, of course, is nothing new. However, at the Supreme Court in very recent years we have seen very very contentious disputes among the justices with them breaking along these sort of typical five for ideological wines. And there's good reason to think that if this case does wind up ultimately getting resolved at the Supreme Court, that we will see a break along those lines. Although we will just have to see how this one please
out there. This doesn't mean that the Justice Department can start executions. What has to happen next, right, So I think partly what happens next will be guided by whether, as we discussed, the plaintifts do seek a full on bank review from the d C Circuit, and then, in turn, if they do what the full DC Circuit says, and then potentially even what the Supreme Court says, alternatively, whether they want to continue to fight the case back down
at the trial court level. So in terms of the next step, that will at least partly depend on what the prisoners who just lost want to try to do in terms of this litigation. So that's what we're waiting to see next. Thanks, Jordan's that's Jordan Ruben Bloomberg, Law Editor. President Trump is nominating a Kentucky judge once rejected by the American Bar Association to the second highest court in the land. Joining me is Carl Tobias, a professor at
the University of Richmond Law School. Carl tell us about Justin Tucker, who hasn't been a district court judge for all that long. That's right. He's been serving for several months on the Western District of Kentucky since his confirmation.
He's very young, and he received a not qualified rating from the American Bar Association principally because he hadn't practiced long enough to satisfy the A B A. The letter from the A B A also said, I think that he didn't have sufficient practice experience to be a federal district court judge, but it did suggest that he was quite qualified in certain ways and certainly has very strong
academic credentials. And he clerked on this very court for Judge Kavanaugh, who now is on the Supreme Court, and then went on to clerk for Justice Kennedy on the Supreme Court. And the A B A said that that kind of qualification might be better suited to the appellate bench. So we'll have to see what happens with the A B A when it undertakes its evaluation. The A B A ratings don't seem to be making much of a difference when it comes to voting on these nominees. I
think that's very true. There have been nine Trump nominees who were rated not qualified but the A B A, and seven of them have been confirmed, three for the appeals courts. So that gives you a sense of what the Republican majority thinks about the A B A. Republicans have been quite critical of the A B A. The White House really doesn't use the evaluations or ratings in
any meaningful way. By contrast, President Obama nominated no one who received an A B A not qualified eating just because I think he believed that that was a sign that there was some question about the qualifications, and so he just didn't think it was worth it to go forward with nominees who received that rating. Why not nominate a judge who has more experience, who's more seasoned. I know that he has Federalist society connections, and he forcefully
defended Justice Brett Kavanaugh for the Supreme Court nomination. Well, he is a protege of the majority leader McConnell, and they go back a long way, and he even did I think a high school paper on McConnell's leadership in the Senate, and McConnell recommended him strongly for the district bench, and he was confirmed on a fifty vote. Uh. And there were questions that Democrats raised about his qualifications, But
you're correct. Usually for the second most important court in the country, the nominees do tend to be very seasoned, and they come from all over the country, and he fits that part of the model. But I believe no one who is as young as he is has been nominated for that court since the nineteen eighties. He would be filling the spot that retiring Judge Griffith is leaving.
Isn't there controversy over his leaving that spot? Yes, there's some controversy because a number of news outlets, including New York Times, have questioned McConnell's approaching Republican appointees on the federal bench and suggesting that they assume senior status now so that President Trump can fill the vacancies, and suggesting they might have to wait another eight years if President Ump isn't reelected, and questions have been raised about that.
In fact, Demand Justice did submit a letter to the Chief Judge of the d c Circuit asking for an investigation. So does this nomination mean that that investigation is going nowhere? Not necessarily. I mean, I think there is great discretion in the Chief Judge of the Circuit to respond to that allegation or the questions asked in the letter from Demand Justice, and we'll see what the Chief Judge does.
And the allegations go to the question of whether something might have been suggested to Judge Griffith, though I don't think that Judge Griffith is in any way implicated. I think it's mostly Leader McConnell and questions about the propriety of his approaching judges like Judge Griffith and making the suggestion that they retire or soon senior status. This follows the nomination of Judge Corey Wilson to the Fifth Circuit.
His position on Obamacare is part of the Democrats and healthcare groups resistance to him, and the same might be said for Walker, since he called Obamacare the law indefensible. The Democrats and many are concerned about the pandemic that's raging, and so that's top of mind for members of the Senate, and I expect they could well question the nominee when his hearing occurs. Thanks Carl. That's Carl Tobias of a University of Richmond Law School. 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 Rosso. This is Bloomberg. M HM.