This is Bloomberg Law with June Grasso. There's one real vacancy on the federal appeals courts, and President Trump is nominating a controversial Mississippi judge for that position after Republican opposition derailed the last nominee. Joining me as Carl Tobias, Professor at the University of Richmond School of Law. So Carl tell us a little bit about Corey Wilson, the nominee.
Wilson is a state judge in Mississippi and was a nominee for a district court position in the Southern District of Mississippi, and then when the other nomination was withdrawn, the President turned to Wilson and nominated him on Monday. And his background is that he was I think uh member of the legislature and then was elected to the state bench and has served for a period of time.
He did have a hearing for the district court, and I think it's fair to say that Democrats were not very satisfied with his responses to their questions, especially about comments he had made as an elected official. His response was, it's different to be a judge, and I understand the difference to be an impartial arbiter as opposed to a politician. And so, uh, we'll see how receptive the Democrats are
to this nomination for the appellate bench. I don't know that they'll ask for a second hearing, but they might just because of the difference in serving on an appeals court and a district court. Uh. So we'll have to see how that plays. Uh. The President also nominated for uh the seat that Wilson would have filled with, uh, someone from Mississippi for that seat. Let's talk about that
first nomination to put this into context. The nominee was not considered conservative enough by Senators Ted Cruz and Josh Holly. What were their objections to the last nominee? Well, what exactly you just said? The concern by both of them basically was he wasn't sufficiently conservative. There were some rulings that he made, uh that they asked him about during the hearing, uh, and the senators from Missouri and Texas
were just not satisfied. They said that he was insufficiently conservative. Um. In fairness, the rulings they mentioned, he suggested the nominee were binding president of the Fifth Circuit and so um, that's what I think led to ultimately withdrawal because if you don't have those two senators votes and committee, his nomination couldn't move to the floor, and so Judge Ozerden will remain on the Southern District of Mississippi. Though many um and I think some Democrats felt that he wasn't
treated fairly in that situation. So now liberal health and advocacy groups are urging Senators to reject Judge Wilson, and a lot of it is based on their belief that he would try to undermine Obamacare. Explain a little more what they're talking about. Well, I think, as Bloomberg Law has reported, he made statements when he was an elected
official in the legislature. Uh, and I believe in campaigning that we're very much opposed to Obamacare, and so I think some Democrats probably are concerned that he might carry those forward to the bench. And of course challenges have been lodged across the Fifth Circuit jurisdictions to Obamacare, and I think one is at the Supreme Court right now, and so that's what's on the mind I think of Democrats.
Given the present circumstances and the need for Obamacare and healthcare presently, so Wilson has said that statements and op eds won't impact his decision making on the bench. He called Obamacare illegitimate and perverse in those op eds. So if he meant that just six years ago, does it seem logical that he would rule against what he considers
an illegitimate law? Well, he said, of course, he'll shed his political views when he's a judge once he's confirmed, And I think Democrats have legitimately asked whether that's possible that would actually happen, And so that's the problem. Though, I would say many nominees now sitting on appellate benches and district courts named by this president and confirmed by the Senate have um said the very same thing about their political statements that Democrats found defensive and questioned in
very similar terms. So it's a question of trust and that type of thing that that worries that Democrats, once people become judges, will they really be neutral arbiters And that's really the question at issue. But they don't have the votes, and so this would be a test. They've already been five quite conservative nominees confirmed for the Fifth Circuit and so we'll have to see. But I think the Republicans are very much committed to filling that that see.
I've been talking to Professor Carl Tobias of the University of Richmond Law School about President Trump's latest nomination to a federal appellate court, the Fifth Circuit Court of Appeals. Carl, the Fifth Circuit is one of the most conservative circuits as it is, and as you alluded to, it's been a key stop for challenges to Obamacare already. I don't think there's much question that it's the most conservative court in the country at the appellate level, though it would
depend on the particular issue. Certainly in the area of Obamacare it's quite conservative, but also in other areas involving, for example, immigration, reproductive freedom, a number of culture war issues. And it was probably the most conservative court at the appellate level at the time of the inauguration of President Trump, and with the addition of five more conservative judges, it's
clearly the most conservative in the country. And so on this issue and others, that's a favored venue, and people like this list of General of Texas often go to the lower courts there and then appeal to the Fifth Circuit if they lose, and so it shouldn't be surprising that the Court has become even more conservative than it was. And I believe the Fifth Circuit's recent decision upholding a Louisiana anti abortion law despite the Supreme Court precedent in
a Texas case is not before the Supreme Court. Well, that's another great example of what I was just talking about. Whole women's health only three or four years ago struck down virtually identical strictures that Louisiana is imposing, and the Fifth Circuit basically said that those could go into effect, and so is now before the Supreme Court. As you mentioned, Democrats objections to Trump nominees are usually swiftly overruled by
Republican senators. But could the pandemic put the importance of Obamacare in this particular nominees case in focus for these senators. Could it put more pressure on them? Well, certainly, I expect those kinds of arguments would be made by the Democrats if they have the opportunity to do that. We
don't know when the Senate will return. Their schedule to return on the twenty of this month, but the pandemic may delay that, and we don't know exactly what kind of procedures might be followed if the Senate doesn't come into session. But my sense is from what Leader McConnell
has said, is that they're going to move along. He said just recently this week actually that his motto is leave no vacancy behind, and he's determined to start up the confirmation machinery as soon as possible once the Senate returns. Do you think they might have chosen Wilson for this appellate spot because he already had a confirmation hearing for
the district court spot. Well, yes, possibly, And that's why I was saying the Democrats might request that there will be another hearing for him at the appellate level, just because that kind of position is much more powerful and requires different skills. So it would make some sense to to then question him on that and those issues and see how he does and whether there's some reconsideration by other members of the panel. What was his rating from
the A B A American Bar Association. I think it was at least qualified in so let's return to the question of timing. Have there been any confirmation so far this year? Any judicial confirmation so far this year? Yes, there was one to the eleventh Circuit, Andrew Brash, who was elevated from the district court there in Alabama, and five district nominees. But that's a tiny number compared to
what's happened in prior periods. But of course there hasn't been much activity, partly because of the impeachment going on in the Senate, the trial there, and now this three week hiatus coming up. And in the two weeks they worked on the package of relief measures for COVID nineteen. So might this actually slow down Mitch McConnell what already
has in terms of the plans. And you know, of course there's the Therman rule, which says during a presidential election year that nominations and confirmations slow and halt early in anticipation of the election. And so we'll see how he addresses that. Of course, in one circuit judge and only eight district judges were confirmed by the Republican Senate majority. And we'll see if if he believes that the Thurman rules should apply when there's a Republican president and a
Republican Senate majority. This brings up another matter with Mitch McConnell. There'll be another federal opening if Judge Thomas Griffith retires from the d C Circuit as planned, but a watchdog group is asking the DC Circuit to investigate whether his
retirement decision violates ethics rules, and that involves Mitch McConnell. Yes, there have been many, uh confirmed media reports that Senator McConnell has approached a number of judges who are Republican appointees the appellate level, asked them to take senior status or retire so that President Trump can fill their vacancies. And the question asked is whether something like that happened with Griffith, because it raises all kinds of problematic issues.
And I think that's what Demand Justice in its letter was requesting of the chief Judge of the d C Circuit in terms of the investigation. So I've heard the response to that from some Republicans that this happens all
the time, so they see it as not really a problem. Well, depends on who's making the appointments, I suppose from their perspective, but it does seem that it is inappropriate to approach a federal judge and suggest that that person change his or her status because of who is in the White House, and there are ethics rules that do apply to judges in terms of whether they might be somehow offered a different position if they were to take senior status or retire.
The letter alludes to that possibility. But these are all factual kinds of disputes. But there's nothing more important to a federal judge or to anybody in terms of their lives and careers to decide when they want to make decisions about changing status and so on a personal level and on a professional level. It seems completely inappropriate. All right, Thank you so much, Carl Azowey's. That's Professor Carl Tobias at the 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 Brasso. This is Bloomberg Ye