This is Bloomberg Law with June Grasso from Bloomberg Radio. President Trump's pushed to reshape the federal judiciary with conservatives is likely to slow this year, as most of the remaining vacant seats are for district courts in blue states like California. In the short term, however, there's no slowing
down the Republican led Senate. Right after the lawmakers acquitted Trump on two articles of impeachment, Majority leader Mitch McConnell went back to his quest of transforming the federal courts, teeing up judicial nominees for votes, and the Senate confirmed Andrew Brasher to the Eleventh Circuit Court of Appeals last week along a party line vote of fifty two to forty three and over the opposition of Democrats and civil
rights groups, including the n double a CP. Brasher was the fifty first Trump nominee confirmed to a circuit court. Joining me is an expert on the federal judiciary. Carl Tobias, a professor at the University of Richmond School of Law. The Eleventh Circuit was ready flips, so to speak. So how important is it to have one more conservative judge? Well, it is important in the sense that President Trump has been able to confirm half of the active judges on
that court. He's had six confirmations, and that's incredible if you think about that in terms of how many appointments any particular president is able to make on the court. So he really has remade the court. We'll see in Plus, you're replacing people in the sixties and seventies with people who are in their thirties and forties, and so it makes an enormous difference. For example, Brasher, I think is
thirty eight. Do they stay on the court until they retire and when they're nominated this young yes, I think so. Most federal judges assume senior status and then you know, take a half load and many of them never resigned. Some retire, but a very small percentage. And so you have judges in their eighties on the number of the courts around the country, and some of them are our most experienced judges. So it's a long window. And why not, I mean, you're taking a half load usually when you
take senior status. Let's talk about Brasher, because he was opposed by Democrats, civil rights groups including the n double A c P. Why was he opposed. Well, I think it principally went back to much of his work as solicitor General in Alabama, basically defending a number of initiatives of the state legislature, and many of them, at least the civil rights groups said, suppressed voter turnout and suppressed
voter write those kinds of questions. He litigated on behalf of Alabama, essentially defending them, and they were very concerned about that. But they seem to find a pretty long history for someone who hadn't been a lawyer that long. And of course the Republicans defended that by saying, this was his client and that's the state, and your complaints should be with the legislature, not with the person who defends them. And the Eleventh Circuit is especially important for
election law. It covers Alabama, Florida, and Georgia. So how often do election law issues come up there? I think rather frequently, as you suggest, and large percentages of African Americans who historically have had difficulty voting as recently as this year, I think in Georgia and Alabama, so some of the most important voting rights cases have come out of there. Shelby County was one which rolled back the Voting Rights Act, but there are many, many others and
that litigation is ongoing. Did he receive a qualified rating from the A B A. I think he had well qualified because you know, he had served for seven months, and that's another criticism as a district judge. Are there any other circuit court nominees? There is only one appellate vacancy in the country right now. Uh next in Mississippi. It's an emergency vacancy for which Oserden, a district judge,
was nominated. But he's been opposed by two Republicans on the committee and his name has not been sent back to the Senate. So it seems that either he has decided to withdraw or the White House has decided to withdraw his name. So the Republicans will have to find somebody very quickly if they intend to fill that seat. And don't forget Mitch McConnell has said that his thinking is no vacancy left behind, so anyone nominated he's promising
will be confirmed. But they don't have someone right now, though there are rumors about who might fill that seat, and he was opposed by the Republicans as being not conservative enough. Yes, the two senators were Holly from Missouri and Senator Cruz from Texas, and in his hearing they grilled him on some of his cases where they felt that he was not sufficiently rigorous in helping opponents of abortion.
I think it was a healthcare case, but he pointed out in the hearing that he was just following the circuit precedent. He was bound by that president. According to the judge. The two senators have maintained that they don't think he's conservative enough, and so they intend to vote against him, and Senator Graham, the chair does not want to go forward with a vote he can't win, and so that's where we are. I've been talking with Professor Carl Tobias of the University of Richmond Law School about
President Trump's pushed to reshape the federal judiciary. Let's turn to the district courts. So the majority of the about seventy current and future vacancy these are in blue states. Explain why it's a blue state red state thing for
judicial nominees. Well, it's especially true at the district level because Senator Graham's chair is still honoring the blue slips and so uh if home state senators a Democrat and disagrees with the White House on a particular nomination, then that nomination does not go forward, there's no hearing in the process is over. And so those are more difficult for this White House and most White Houses to fill
when the opposition party has to agree. And so basically, the Republicans have found it much easier when there are two home state senators who are Republicans to go ahead and fill those seats. And so that's a big part of it. And of course, the two major jurisdictions that we see our California which has six emergency district vacancies and no one has been confirmed, though they now have nominees for all the seats, but it's doubtful they'll all
be confirmed this year. And then New York has had as many as sixteen or seventeen a number have been filled there now, so it's not as um bad as it was. Um. But you might remember that Senator Schumer is from New York, and of course Senator Feinstein and uh, Senator Harris from California, and the President loves to rail against the Ninth Circuit and the California District judges, so
um that may in part explain why they've been so slow. UM. So we'll see what happens in those major states, but there are many other blue states that have many vacancies. New Jersey is the worst case scenarios, six emergencies, and there's not yet been a Trump nominee, and so it doesn't look like anything that's going to happened there, even though they have only seventeen judges, so they're pretty much underwater. If you talk to the New Jersey judges in that district.
Let's talk about how this really happens. Because Delaware has had two district court nominees approved. Why is there success in Delaware and not in New Jersey, which is in an emergency situation. Well, because I think the home state senators Coons and Carper from Delaware UM undertook extraordinary efforts to work with the White House and find people who were acceptable to the White House. One was called Connolly,
who had been the U S attorney for Bush. I believe in the nominee but didn't make it at the end of Bush and they thought he was uh find US attorney, would be an excellent federal judge, and so they offered him and the other person who is named Nerika, who was well qualified um UM practitioner in Wilmington's and so they were able to agree. Very similar thing has happened in Illinois. Senator Durban has worked very closely with the White House and they still have vacancies, but they
have nominees for the few vacancies that are left. So where home state senators reach out and work closely with the White House, then uh, their vacancies tend to be filled. Um. And so there's some examples of that, UM. And I think the New Jersey situation is just unfortunate. UM. I think the senators have tried, but nothing has happened. So then it's not only a problem with the Trump administration
but also the senators from that state. It can be uh, but sometimes, for example, in California, I think that the White House did not reach out to the senators and it's a big state and they have lots of vacancies, and the commissions they have take time, UM, but they just haven't been able to move to get the nominations. Once to get the nominations, they haven't moved through the Senate and so uh that just creates these huge backlogs UM.
And the chief judges of the Eastern end, um Central districts of California have written to the White House and to the Senate Judiciary Committee pleading to to have those vacancies filled. Now, is it true that no California District Court nominee has made it through the confirmation under President Trump? Yes, it's astonishing. It is. When you have sixteen emergency vacancies
out of sixty seats, that's a real problem. And they had many of the judges carried double the case loads of judges and other districts, so you can get a sense of what how how bad it is in California. I don't often hear Washington State mentioned in with judicial nominations, but three of the Washington states western district spots have been vacant for about four years, and the average age of the district judges there is seventy six years old.
What's going on in Washington State four years? We can't blame Trump for that, can we? Yes? We can, Um, we can blame the Republicans for it. Before President Obama head nominated three people for vacancies there, and well qualified mainstream nominees, but they were held up by McConnell in and UM, Now there are five vacancies and all five are emergencies as you suggest, Um, but uh, no signs
of nominees moving forward. And I've heard from people in Washington State that nothing is going to happen until after the election, and so they have very much a crisis situation in that state as well. Red state nominees take about two hundred seventeen days to get from nomination to confirmation, but blue state nominees take about four hundred and twelve days. And that's a departure from Obama, where it took a hundred nine days for Obama's blue state nominee to be
confirmed in two for red state nominees. So why is why, what's the how do you account for that difference between Trump and Obama? And the timing again, I mean, I think that the Judiciary Committee just has um not moved because first of all, the on the nominees, the White House to lead nominating from blue states, and they went to the whenever they were nominated, they went to the back of the line, and so they haven't made that
a priority. And so for example, you have sixteen nomine East for those emergency vacancies in California, and no one's being confirmed. UM, and you can see the discrepancy. I think in Bush's time to it would look like Obama Um, there was no discrepancy or difference between UM, Blue states and Red states. UM. But Um. This approach by the White House and the Judiciary Committee has allowed them to fill all but one appellate vacancy UM, and most of
the red state vacancies. But the Blue states are disadvantaged and have been throughout the administration now, Carl. They rushed to fill the appellate court vacancies because the appellate courts. It's more important what your views are, isn't it than district courts. I mean, so these district court judges who do the everyday work, the trials, motion practice and stuff, they should be easier to confirm, shouldn't they. Well, they are easier to confirm, but more of them, Okay, And
so um it um. You're exactly right. Though, an appellate judge UM typically issues an opinion which covers all of the states in that UM circuits U states, and so all judges in say, New York, UM, Connecticut, and Vermont are bound by rulings of the second circuit um. But a district judge can't even bind people in his or her own courthouse with rulings and so as you can see, and the Supreme Court takes so many, so few cases that the Supreme Court for New York really is is
the second circuit. And so those positions are critically important, and they just make more policy, cover more states um and so um, and their fewer to them. And so the administration has focused like a laser on the appellate courts, and they have been very successful. In fact, there haven't been that few vacancies since How many circuits has Trump
flipped And do you see a difference already? Well, I think we are beginning to see it, um, But I believe it's the second, third, and eleven that have flipped. But of course you have to remember in some of the other states that have not flipped, he has substantially reinforced very conservative kind of perspectives of those circuits. And I'm thinking for example, the fifth, the sixth, eight um, the seventh to some extent um, and also perhaps the
ten so um, you know, having a substantial impact. I think it's still a little early to see very many cases because some of the judges have been appointed quite recently. Uh, and they don't have you know, a full record, um, and sit in three judge panels, but there have been opinions that have been important in Sometimes the difference on the three judge panel is one of the Trump appointees. Uh. And that will just be magnified over time. Thanks for
being on Bloomberg Lack Carl. That's Carl Tobias, professor at the University of Richmond School of Law. And that's it for this edition of Bloomberg Law. I'm June Grasso. Thanks so much for listening, and remember to tune to the Bloomberg Law Show weeknights at ten pm right here on Bloomberg Radio. Yeah.