August 1, 2025 • 37 mins
Constitutional law expert David Super, a professor at Georgetown Law, discusses the Trump administration ratcheting up its attacks on the federal judiciary. Constitutional law professor Harold Krent, of the Chicago-Kent College of Law, discusses a Third Circuit ruling that deals a blow to labor judges. Federal judiciary expert Carl Tobias, a professor at the University of Richmond Law School, discusses the controversial Trump nominee, Emil Bove, winning confirmation to the Third Circuit. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
James Boseburg, the chief Judge of the US District Court
for the District of Columbia, has been at the center
of the Trump administration's.
Speaker 3 (00:16):
Efforts to deport accused.
Speaker 2 (00:18):
Venezuelan gang members under an eighteenth century wartime law, the
Alien Enemies Act. He's also been at the center of
the administration's attacks on the federal judiciary. Attorney General Pam
Bondi has repeatedly criticized Boseburg.
Speaker 4 (00:35):
This judge has no right to ask those questions. You
have one unelected federal judge trying to control foreign policies,
trying to control the Alien Enemies Act, which they have
no business presiding over. This judge had no right to
do that. They're meddling in foreign affairs, They're meddling in
(00:57):
our government. And the question should be why is a
judge trying to protect terrorists who have invaded our country
over American citizens, And then, of course Boseburg trying to
control our foreign policy. These judges are out of control.
We are going to fight back, and we are going
to win.
Speaker 2 (01:17):
President Trump has called Boseberg a radical left lunatic of
a judge, a troublemaker and agitator, even calling for his
impeachment that led to a rear rebuke from Chief Justice
John Roberts in March. Now the Justice Department is escalating
its fight with Boseburg. It's filed an ethics complaint accusing
(01:38):
the judge of misconduct. My guest is constitutional law expert
David super, a professor at Georgetown Law. David, why has
the administration been focusing so much on Judge Boseburg?
Speaker 5 (01:50):
Well cass are assigned to district judges randomly. Judge Boseberg
have the misfortune of drawing the first case in involving
the Trump administration's bizarre application of the Alien Enemies Act
in a non wartime situation, and he did what any
component judge would do, which is declared illegal.
Speaker 2 (02:13):
The complaint focuses on a March session of the Judicial
Conference of the United States, a panel of judges led
by Chief Justice John Roberts. The Justice Department accused Boseburg
of raising quote concerns that the administration would disregard rulings
of federal courts, leading to a constitutional crisis, and said
(02:35):
his comments violated a section of the Code of Conduct
for federal judges, which says that they should not make
any public comment on the merits of a matter pending
or impending in any court. If he did, in fact
say this, is it at a bounds for a judge
at a meeting that's supposed to be private to say
(02:55):
something like that.
Speaker 5 (02:57):
No, of course not. This complaint doesn't pass the last test.
It's not a public statement if the statement was only
judges present. I would love to attend meetings to the
Judicial Conference, but I'm never invited. I'm sure you would too.
It's a private meeting. By this reasoning someone should bring
a complaint against Justice Alito or indicating that he thought
(03:18):
Rovy Wade should be overruled in circulating his draft opinion
in Bobbs, which later became public, Judge Boseburg is not
responsible for other people leaking memos about things he said
in private meetings among judges any more than Justice Alito
would be responsible for the leak of his draft opinion
that he shared with other justices.
Speaker 2 (03:39):
In the complaint, the Justice Department also says that Judge
Boseburg had no basis for saying that because the Trump
administration has always complied with court orders, but the administration
violated Boseberg's verbal order in this very case.
Speaker 5 (03:55):
Judge Bozberg's role on the judicial conferences as a representative
fative of district judges in the District of Columbia, he
is responsible for reporting what judges on his court are
concerned about, and it would be at their election of
his duty if he didn't report concerns that they had.
(04:16):
Judges on his court had found the administration to be
out of compliance with a number of court orders by
administration officials, certainly including the Vice President, arguably including the President,
had mused about whether they would honor court orders on
various topics, even Supreme Court orders, certainly orders of district courts,
(04:41):
and the question of how to deal with the administration
violating court orders had already been up and down to
the Supreme Court by that point. Obviously it was something
they were concerned about. He was not, as we've been told,
expressing his own views, but rather the views of other
judges on his bench. I'm sure at other times the
(05:04):
chief Judge of the District of Columbia may have reported
that they feel inundated with bent in all cases where
they feel inundated with crystal meth cases. This is a
place where judges talk about the challenges of maintaining the judiciary.
He was doing exactly what he was supposed to be doing.
Speaker 2 (05:23):
Is it concerning that apparently a memo of the meeting
was leaked to the conservative website the Federalist.
Speaker 5 (05:32):
Well, the Judicial Conference is representing judges and business about it,
so memos of what happened at this meeting do get
circulated to judges. President Trump has made a point of
appointing members of the Federalist Society to the Judiciary, so
many Federalist Society members received this memo and one of
(05:53):
them apparently chose to leak it to the Federalist.
Speaker 2 (05:57):
It's also in isolation. They just took about his comment.
There must have been some kind of discussion that followed that,
or some remarks and response, but it's just isolated to
this one comment that he made, which is unusual.
Speaker 5 (06:12):
Well, it is, and they describe his comments as being
uncalled for, but they don't give us any context to suggest.
Speaker 1 (06:21):
That they weren't.
Speaker 5 (06:22):
And again, Judge Bosberg's role there was to bring to
the Judicial Conference concerns by judges on his court and
judges reacting negatively to administration officials and Republican senators suggesting
that they disregard court orders would be an obvious thing
to discuss. He doesn't indicate what the point of the
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agenda was, what prompted this, or what anyone else said afterwards. Moreover,
the Code of Judicial Conduct prohibits comments on the merits
of the case. This is not a merit issue. This
is an issue about what does the court do when
it has decided the merits and one of the parties
doesn't comply.
Speaker 2 (07:07):
The Justice Department also complains about his handling of the
case involving the alleged Venezuelan gang members, saying he rushed
the government through complex litigation, sometimes giving the Trump administration
less than forty eight hours to respond.
Speaker 5 (07:24):
Well, the rushing was by the administration. The administration could
have agreed to suspend flights until this matter was litigated,
and the parties could have submitted their papers in due time.
The administration was in physical control of all of these people.
It had no need to send them to Alfalvadore. It
(07:45):
chose to do it in a great hurry, and that
led to a quick response from Judge Bosebury, many judges
would not have given the administration any operatity to respond
at all when enjoining a crisis that was entirely of
that party's making. Judge Boseburg bend over backwards to be
considerate of the administration and to accommodate the schedule, which
(08:10):
they insisted was very urgent, even though they never explained why.
Speaker 2 (08:15):
If you have a problem with the judge handling your case,
does a litigan file a misconduct complaint or wait for
the appeal.
Speaker 5 (08:24):
If what the judge does is sufficiently egregious, you can
file a misconduct complaint. It's not out now then appropriate.
But what Judge boseverg here did doesn't mean any of
the requirements of an improper act. It wasn't public, it
wasn't on the merits, and wasn't prejudicial. So the normal
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procedure would be either to appeal or in some instances,
to move for the judge to be recused. But the
standard even for recusal and for appeal is much much
higher than this, and the standard judicial misconduct is higher still.
Speaker 2 (09:02):
You said doesn't pass the left test. What do you
expect to happen here?
Speaker 5 (09:07):
In a normal world? The Chief judge of the DC
Circuit would dismiss this outright, because this comes from the
Justice Department and from an administration that has been exceedingly
vindictive and is cost lines that none of its predecessors
have in criticizing sitting judges. The chief Judge may refer
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it to a panel, but those judges would then dismiss it.
Speaker 3 (09:34):
We've talked before about this.
Speaker 2 (09:35):
This is the latest in a string of confrontations of
the Trump administration with the federal courts. They filed a
misconduct complaint in Fbruary against another DC federal judge, Anna Reyes,
accusing her of hostile and egregious misconduct for her sharp
questioning of government lawyers in the case on the Pentagon's
attempts to ban transgender people from military service. And last
(09:59):
month they suit every judge in Maryland over a standing
order that blocked the immediate deportation of migrants, challenging their
removal for two days.
Speaker 3 (10:08):
Is there a strategy here?
Speaker 5 (10:10):
Well, certainly, the strategies to intimidate federal judges the public
criticisms of them, which have led reportedly to spikes and
death threats, is part of this. A suggestion that they
don't have to follow them, the characterization of them as
radical leftists. Some of the judges they've called radical leftists
were appointed by Ronald Reagan, but no mind. So this
(10:33):
is all part of a broader strategy to delegitimate the courts,
to have people not believe that the courts can determine
the law, and they have people do entirely what the
government says. That's the path of the dictatorship.
Speaker 2 (10:47):
How unusual is it for the Justice Department to file
a complaint against a federal judge? In the past, under
other presidents have justice departments taken this course.
Speaker 5 (11:00):
Almost never, and a good example of that is the
behavior of Judge Cannon in one of President Trump's criminal cases.
A number of her rulings were very strange, sometimes self initiated,
rulings in favor of mister Trump, and the Justice Department,
though it.
Speaker 1 (11:19):
Had plenty of grounds.
Speaker 5 (11:21):
Didn't even move to recuse her, much less vile a
judicial misconduct complaint. The ordinary views of the Justice Department
has a strong interest in public respect for the judiciary
and doesn't want to undermine it. This administration obviously feels differently,
and tell us.
Speaker 2 (11:37):
A little about Judge Bosberg's reputation.
Speaker 5 (11:40):
Judge Boseburg's an extremely thorough, extremely smart judge. He basically
gives you what you get. If you give him a
serious argument, he'll either ruin your favor or give you
a careful, analytical reason why he won't. If you give
him a silly argument, he will say so and not
dignify it with a lot of extra words. He's very
(12:01):
hard working, very attentive to the law. He's ruled in
the Trump administration's favor on a number of matters, including
involving the Alien Enemies Act, because he felt the law
was in their favor. He's not a partisan.
Speaker 2 (12:15):
And by the way, the DC Appellate Court has not
yet addressed the complaint against Judge rey As for her
sharp questioning of government lawyers.
Speaker 5 (12:25):
I will point out that the standard was that lawyers
shouldn't be sharply questioned. They are only about two judges
I ever practiced in front of that. I couldn't have
filed misconduct complaints.
Speaker 2 (12:35):
Again, you have to have a tough skin if you're
going to be a litigator. Always a pleasure, David, thank you.
That's Professor David super of Georgetown Law. Coming up next.
A bload to labor judges. This is Bloomberg. The Third
Circuit Court of Appeals has found that the Labor Department's
internal agency judges don't have the power to hear enforcement
(12:57):
disputes over the H two A visa program for seasonal
farm workers. It ruled in favor of a New Jersey
farm that was trying to overturn more than a half
million dollars in penalties by arguing that the Labor Department's
judicial system was unconstitutional under Supreme Court precedent, the decision
could have broad ramifications. Joining me is constitutional law expert
(13:20):
Harold Krant, a professor at the Chicago Kent College of Law,
hel tell us about the challenge to the fines here.
Speaker 6 (13:27):
The tourture case concerned administration of the H to A
visa worker program, which is designed to bring in seasonal
workers from out of the country to help with orchards
in this case, or farms, or it could be entertainment
complexes where there's not enough US domestic workers. And the
program is a win win. It helps US industries and
(13:50):
it helps people from outside the borders get a little
taste of the United States and earn some money at
the same time, and so In this case, the Department
Labor alleged that Sun Valley Orchards had violated the requirements
of the program in many ways, requiring twelve hour working days,
(14:10):
providing inadequate water supplies, inadequate bathroom breaks, and so far.
And so they decided to bring an enforcement action, which
ended up being hundreds of thousands of dollars in fines,
as a way to punish Sun Orchards, also to give
some kind of compensation back to the workers, and at
(14:31):
the same time send a signal to others who were
using seasonal workers through the H two A program. And
so this case raised the question then of could this
enforcement action be brought within the agency itself. And this
comes on the heels of the Supreme Court's decision in
the JERKXI case, which surprisingly limited the types of cases
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that can be brought before agency tribunals. And all the
court appeals are struggling with these cases now because the
Supreme Court did not make a very clear distinction of
what type of enforcement claims can be brought before the
agency and which have to go to court with a jury.
And that's a huge consequence because if you have an
enforcement action before court with a jury, it's slower, it's
(15:18):
more expensive, and as a result, agencies can bring fewer
enforcement actions and they will have to pick and choose.
So this case comes on the heels of many now
across the country struggling with challenges to agency enforcement actions,
trying to figure out which side of line do they
fall on. Can they be brought before the agency or
(15:38):
does the agency have to go to court with the
jury trial and bring the action there.
Speaker 2 (15:44):
As you mentioned, going a trial is expensive. Why do
employers prefer going a trial to having an administrative law
judge decide the case?
Speaker 6 (15:56):
Well, there are several reasons. I mean, one is they
think that with some credibility, they think that the ALJ
and the agency which will then decide the case may
well be biased against them. Some limited data bears us
out not conclusive.
Speaker 1 (16:12):
But there's some data.
Speaker 6 (16:13):
But on the other hand, they think that the agency
won't be as likely to bring the action if they
have to spend so much money on enforcement. So in
any given case, the goal would be to go to
court because it takes longer and the agency may not
be able to expend the resources to see it through.
Speaker 2 (16:33):
Here, the oral arguments hinged on a public rights exception
in the Jocracy case.
Speaker 6 (16:40):
So what the the people held in Charcracy was that
it limited what we understood to be the public rights doctrine.
The public rights doctrine suggested that the Seventh Amendment and
those kind of key rights that everybody enjoys in terms
of going to trial and having a jury of your
peers be a protection doesn't apply if the issues between
(17:03):
the government and a private individual. That was our old
understanding of the public rightstock and so that if Congress
set up an administrative scheme with penalties for dangerous workplace
or in this case, you don't treat your employees right,
or another case it's dangerous chemical storage or privacy violations
(17:24):
of the Congress sets up that scheme, it can choose
whether to have enforcement in an administrative agency if it
wanted to, because it had to do with a non
common law right of action that Congress has created, and
therefore can decide to use the instrumentality or mechanism of
an administrative agency to adjudicate it. That was the prior understanding.
(17:47):
The Supreme Court in Geocracy cut that back, but we
don't know exactly how far they really said. Two different
things difficult to reconcile. The first they said, if there
is a close common law analog to the action, even
if Congress has created a new one, if it looks
like a common law action, then the jury trial right remains.
(18:09):
And so in the Chocracy case itself, it was a
fraud action against people who had tried to swindle people
under the securities laws, and so the court there said,
this looks like a common law fraud action. It has
to go to a court. And most of the courts
of appeals that have been resting with this look at
that line and try to see how close to a
(18:31):
common law action does this particular issue exist in terms
of whether or not the enforcement can be placed in
a court or in an administrative agency.
Speaker 2 (18:43):
So Rob Johnson, a senior attorney at the Institute for
Justice and counsel for Sun Valley, told Bloomberg this decision
means that employers facing penalties for H TWOA violations can
now demand a jury trial in federal court. Is that
true for all violations or certain violations.
Speaker 6 (19:01):
Probably all violations of the H two A program. This
doesn't cover, of course, other administrative mechanisms. And indeed, the
Third Circuit has gone the other way in a separate case,
but he's right with respect to this particular mechanism for
seasonal workers. The court held that the particular enforcement looked
(19:23):
like a common law contract action because of the fact
that under the program, in essence, the Department of Labor
enforces employers to provide certain contractual services to these seasonal workers.
And so the court held that even though interestingly enough,
this arises in an immigration type of context, because we
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of this pseudocontractual underlying requirement that all infractions have to
go to court, and you know, turning the lens the
other way, we know that, in fact, the Supreme Court
in indocracy itself said the immigration context is different and
therefore the Congress should have more plenary authority decide where
(20:08):
immigration violations should be brought. But the Third Circuit decided,
even though this arose in an immigration type context, the
real essence of it is a kind of pseudocontractual relationship
between in this case, the orchard and the seasonal workers,
and therefore that any infraction had to be brought before
a jury trial in the Federal District court.
Speaker 2 (20:30):
The implications of this case, how far reaching are they?
I mean, could it potentially impact other agencies that handle
enforcement actions.
Speaker 6 (20:40):
Well, there's a number of cases now that are percolating
around the country in the wake of darctracy, just to
see where the line should be brought. We know that
much of the mechanism of agency enforcement has been crippled
now because of the jocracy decision that instead there'll be
fewer cases because they have to be brought in just
a courts. And the question is how to figure out
(21:01):
which cases had to be brought in court in which
cases have to be blought before the agency. So to
show the other side of the coin, the Third Circuit itself,
in a different case just a couple of months ago,
decided that finds for not storing hazardous materials correctly, that
that could be fines could be blought before the agency.
(21:22):
They're a paint company allegedly had not stored dangerous materials
carefully enough, and the court in that case under the
Federal Aviation Administration had decided to bring again the action
before its own agency, and there was a challenge to it.
But the Third Circuit said that this civil penalty action
(21:45):
is okay to proceed before an agency because hazardous waste
regulations didn't exist of common law, and even though in
some ways all this was was a super negligence action,
the court in that case, again the same Third Circuit
as in the Orchard case, decided that an enforcement nation
before an agency could go ahead. So these two cases
within one circuit illustrates how the line suggested by the
(22:09):
Supreme Court intocracy is almost impossible to apply evenly, and
so all the courts of appeals are in disarray in
how to limit the ability of the public rights doctum
to exist, and which case is the funnel to the
sederal district courts and which can continue on before the
agency tribunals.
Speaker 2 (22:29):
The panel consisted of three judges, all appointed by Republican presidents.
Speaker 3 (22:34):
Do you think that made a difference.
Speaker 2 (22:36):
And should they try to appeal to the full circuit,
which is more evenly balanced the full third Circuit?
Speaker 6 (22:42):
You raise a great point. I mean, I think that
this is a politicized issue, not in most people's minds,
but it is in terms of certain kinds of sort
of judges with an anti regulatory bias, and even members
of the Supreme Court have held that there should be
no agent see enforcement tribunals at all. I mean people
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like justice course such in particular, and judges with that
kind of bias, and they could be Republicans, maybe some Democrats.
Mostly Republicans would tend to find almost no case appropriate
to be brought before an agency tribunal, with probably some
exceptions as for immigration, foreign affairs, et cetera. So to
a certain extent, they supolicized. I don't think it's exactly
(23:24):
the same fault lines as we think of in terms
of pro Trump or anti Trump, but certainly it is
in terms of anti regulatory Republicans versus others with a
different bet. So this case, because of the split in
the third Circuit of one of these cases that we've discussed,
may go to the Supreme Court, because the Supreme Court
really does need to clarify the extent of jocracy and
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when the stem of amendment, in other words, eclipses an
agency's ability to have an enforcement action.
Speaker 2 (23:55):
If you're in favor of agency actions and power, do
you really want to go to the Supreme Court? Again,
we want this to go to the Supreme Court.
Speaker 6 (24:03):
I think within the Trump administration itself, there has not
been a clear signal of what the Trump administration's position
will be, So the Soitser General will have to sift
through these cases and decide what their position is. And
they've made announcements about other administrative law issues, you know,
principally with the respect to removal of officers, but they've
(24:25):
been silent with respect to the breadth of dracracy, So
we don't exactly know their position. One would think they
might decide to strip their own agencies of power, but
they haven't done that. So they're obviously probably a little
bit ambivalent about stapping their own agency's power to have
these enforcement actions before their own agencies. So that's the
(24:47):
decision they'll have to make, and they haven't sent a
clear signal yet.
Speaker 2 (24:51):
I guess your priorities can change depending on whether you're
the one in charge of the agency you're not, thanks
so much, how that's Professor Harold Krent of the Chicago
Kent College of Law. Coming up next on the Bloomberg
Law Show. A controversial Trump nominee wins a lifetime appointment
to the Third Circuit. I'm June Grosso and you're listening
(25:13):
to Bloomberg the Tenth Circuit Court of Appeals. Here's cases
from Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. Currently
seven judges sit on the Tenth Circuit, seven appointees of
Democratic presidents and five appointees of Republican presidents. But the
(25:34):
US Judicial Conference apparently thinks that's too many judges for
the circuit. Joining me is an expert in the federal judiciary,
Carl Tobias, a professor at the University of Richmond Law School.
Carl Inner report the Judicial Conference agreed to recommend that
the President and the Senate do nothing next time a
(25:55):
seat opens up on that Denver based tenth Circuit. Why
did they make that recommendation.
Speaker 1 (26:02):
They do this biennial survey of judge ship needs, and
they look at workloads in appellate district courts with consistently
low per judge ship caseloads to see whether they can
make this recommendation. And here I guess they found that
the tenth should not do that fill that judge ship
(26:24):
and some other district courts too, and they, you know,
they promise it on very conservative estimates of caseload and workload.
But I think in the past, actually the President and
the Senate have ignored those requests from the Judicial Conference,
even though the data show that they don't need all
the judges just because they don't want to pass up
(26:47):
the opportunity to fill a vacancy.
Speaker 2 (26:49):
In his first term, President Trump ignored this, and President
Biden also ignored this. I mean, the way judicial appointments
have become so much more political recently, it seems unlikely
that any president is going to pass up a chance
to appoint any circuit court judges.
Speaker 1 (27:08):
That's right exactly. I think there's no question about it.
And the presidents believe that most of the policy is
made at the appellate level for multiple states within a
particular appeals court, and so it's a lost opportunity if
you don't capitalize on it. So I have every expectation
that this will be ignored.
Speaker 2 (27:27):
Don't the workloads of circuit court judges change over the years.
I mean, if you take it away this time, might
you have to put it back another time?
Speaker 1 (27:37):
Well? You might, But again, I think they're pretty conservative
about their estimates, and they've been doing it over a
long period of time, so generally they're pretty accurate about that.
And there aren't huge swings in the appellate case loads.
I don't believe, And you know, increasingly in the appeals courts,
(27:57):
you're not getting full dressed opinions, they're not providing oral arguments.
All of those are fewer and fewer, and the staff
does a lot of the work. There are many people
who you know, clerks and other people who to look
at the cases rather than give them full treatment. You know,
they just had to do trioze because they need more resources.
(28:19):
But Congress is not going to provide more judge ships.
It doesn't look like it. You know, they have the
bill I think came out of committee in March, the
one that you know was on the floor in twenty
twenty four, but Biden said he wouldn't sign it because
it was after Trump's election, and so it was reintroduced
on the House side and it has I think passed there,
(28:43):
but no action in the Senate. So it may be
that that Trump will get twenty two more district seats
in the first tranch if it passes, and they may
push it.
Speaker 2 (28:52):
That doesn't need just a simple majority or more best
the Senate.
Speaker 1 (28:56):
That's a good point. In the Senate, I believe it
would need sixty votes to get cloture, and so not
clear that they would have that that was the beauty
of the Senate passing it last time was before anybody
knew who was going to have a Senate majority and
who would be the president. And so that's the time
(29:17):
to strike, you know, in the election year, like in
twenty twenty eight, because then no one can predict what's
going to happen. And once the Republicans knew that Trump
had won and they had a majority, and of course
they were happy to sign on. The House had not
passed it at that point. You know, Biden was within
his rights to then say no, I'm not going to
(29:38):
sign that because you had an opportunity and you didn't
take it.
Speaker 2 (29:42):
Well, I think it's the biggest fight over judicial nominee
in Trump's second term so far. Over Emil Beauvey, his
former personal criminal lawyer, as well as now in the
Justice Department, and the Democrats really tried everything about to
try to stop his appointment.
Speaker 3 (30:03):
They devote a lot of time and resources.
Speaker 2 (30:06):
They stormed out in protest out of the Judiciary Committee
when the vote was on, They had whistleblowers ready to
come forward, and yet it still got through. So what
does this show you about future nominees? I mean, there
was so much opposition to Bouve from different parts of
(30:26):
the legal community.
Speaker 1 (30:28):
Well, that's right. I mean there was there were seventy
five or so retired state and federal judges who said
that the Senate should not confirm him, and there was
a fair amount of evidence, and the hearing was one
where I think Bouvy was not very forthcoming and he
(30:49):
refused to answer a number of questions and seemed evasive
about others. And as you suggest, there was a lot
of pretty strong evidence that was just never heard. They
really asked for these whistleborrowers to be allowed to come
in and give their testimony under oath, but it didn't happen.
And in the markup when they were discussing the nominee,
(31:11):
I think there was a real question as to whether
the vote for bov was valid at the time because
they didn't have two members of the minority. There was
Booker by himself trying to harangue the rest of the members,
and they just voted on through. And so I'm worried
about the process going forward. What are we going to
(31:32):
see when you only have five minutes to ask questions
the hearing, and that's not much of an opportunity. And
I noticed the first circuit and ninth circuit nominees acted
a little bit like bov in the sense that they
were not answering questions, saying they were too political or
it wasn't appropriate for a nominee, and then also being
(31:55):
pretty evasive and not really answering the questions, and the
same thing the district nominees. So I'm concerned about the
process that we saw, and it was particularly troubling with
Bowie's confirmation process. They used to give a second round
if it were a really important position, and that probably
should have done it in this situation, and it would
(32:17):
have made the Democrats at least feel better and they
could have asked more questions, but they didn't.
Speaker 2 (32:22):
Grassley has been supportive of whistle blowers, and yet he
refused to allow them to testify, and I just wonder
what would the harm have been in allowing them to
testify it.
Speaker 1 (32:35):
Well, I think they were concerned about what the whistleblowers
would have to say, even though it would be under
oath and so they would have to tell the truth.
That's very unfortunate that something didn't happen to allow them
to come forward. And I think Grassley was concerned, of course,
because he has been a supporter of whistleblowers, but in
(32:56):
this situation, it was just too charged, apparently even for him,
and so I didn't let it happen. And Democrats, you know,
and Booker especially were very troubled and suggested that they
should have a special hair they rejected.
Speaker 2 (33:13):
I don't know of another case I've seen in my
fourteen years in the Senate where someone so unqualified for
the benches before us.
Speaker 3 (33:19):
So I often.
Speaker 2 (33:20):
Wonder when you have these kinds of really contentious nominations,
what happens when that person gets on the Circuit Court?
Speaker 3 (33:29):
I mean, is there any blowback?
Speaker 1 (33:31):
I think judges try to be collegial with the people
they're working with, because you know, they're always going to
be sitting on three judge panels except when they're on
bod and you have to be able to work with
colleagues whose views you don't always agree with. And so
I think the judges of the Third Circuit are pretty
welcoming group and will do their best to help bovy,
(33:56):
acclimatee and be a productive member of court. I've seen
that happen, even though the particular judges you know have
very different perspectives on judging and substantive issues and all
of that, just because it only can work if everybody
works together, and both together, because there's plenty of work
to do. I think, you know, Booker was particularly concerned
(34:18):
because the White House didn't consult on the nomination with
the Home State Senators in any meaningful way, and we
heard that same took play for the first in the night,
and so that's unfortunate because at least there should be
some you know, interaction between the White House Counsel and
the Home State Senators and so that needs to be
(34:39):
reinstated and done because they don't have the blue slips.
I wonder if you saw that the President Tuesday night
posted on x jaw boning grastly to get rid of
the blue slip and criticizing Republicans for retaining it, and
Grassly pushed back at the hearing day to say, we're
(35:02):
retaining the blue slips for districts and for US attorneys
because they protect the prerogatives the Home State senators and
the people who they represent in those states. And that's
been Lindsay Graham's view as chair and ranking member, and
so I think that will go forward, but of course
Grassley also instituted the circuit exception for blue slips, and
(35:25):
so Booker and Kim didn't have any opportunity to hold
back the blue slip for a Bobe.
Speaker 2 (35:33):
Grassley said he was offended and disappointed by President Trump's
social media post. I mean, if there's more critique from Trump,
he has all these US attorneys that are being held
up because he can't get home state senator approval. I
wonder how long this opposition to Trump's suggestion will last.
Speaker 1 (35:54):
I think he's a person of his word, and I
think he has worked very well with Urban when they
were either ranking member or chair and alternated. And I
think he'll stick by that because you know how important
it is, and Graham will back him up. I think
it's not going to happen, and it benefits the minority party,
(36:15):
and they know what goes around comes around, and they
often say that, and you never know in the Senate
because it's so close who is going to win the
next midterms or the next majority. And so it is
important because otherwise you have situations where the home state
senators don't have an opportunity to make their views known.
(36:37):
And that's unfortunate because they have to be responsible to
the voters and so they are concerned about that. But
I think Grassley will will be strong on this, and
I'll have plenty of support, certainly from the Democrats, but
maybe some Republicans as well.
Speaker 2 (36:53):
I'll put that in the column of we shall see.
Thanks so much, Carl. That's Professor Carl to Buy of
the University of Richmond Law School. And that's it for
this edition of The Bloomberg Law Show. Remember you can
always get the latest legal news on our Bloomberg Law podcasts.
You can find them on Apple Podcasts, Spotify, and at
www dot Bloomberg dot com, slash podcast Slash Law, and
(37:18):
remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso and
you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
James Boseburg, the chief Judge of the US District Court
for the District of Columbia, has been at the center
of the Trump administration's.
Speaker 3 (00:16):
Efforts to deport accused.
Speaker 2 (00:18):
Venezuelan gang members under an eighteenth century wartime law, the
Alien Enemies Act. He's also been at the center of
the administration's attacks on the federal judiciary. Attorney General Pam
Bondi has repeatedly criticized Boseburg.
Speaker 4 (00:35):
This judge has no right to ask those questions. You
have one unelected federal judge trying to control foreign policies,
trying to control the Alien Enemies Act, which they have
no business presiding over. This judge had no right to
do that. They're meddling in foreign affairs, They're meddling in
(00:57):
our government. And the question should be why is a
judge trying to protect terrorists who have invaded our country
over American citizens, And then, of course Boseburg trying to
control our foreign policy. These judges are out of control.
We are going to fight back, and we are going
to win.
Speaker 2 (01:17):
President Trump has called Boseberg a radical left lunatic of
a judge, a troublemaker and agitator, even calling for his
impeachment that led to a rear rebuke from Chief Justice
John Roberts in March. Now the Justice Department is escalating
its fight with Boseburg. It's filed an ethics complaint accusing
(01:38):
the judge of misconduct. My guest is constitutional law expert
David super, a professor at Georgetown Law. David, why has
the administration been focusing so much on Judge Boseburg?
Speaker 5 (01:50):
Well cass are assigned to district judges randomly. Judge Boseberg
have the misfortune of drawing the first case in involving
the Trump administration's bizarre application of the Alien Enemies Act
in a non wartime situation, and he did what any
component judge would do, which is declared illegal.
Speaker 2 (02:13):
The complaint focuses on a March session of the Judicial
Conference of the United States, a panel of judges led
by Chief Justice John Roberts. The Justice Department accused Boseburg
of raising quote concerns that the administration would disregard rulings
of federal courts, leading to a constitutional crisis, and said
(02:35):
his comments violated a section of the Code of Conduct
for federal judges, which says that they should not make
any public comment on the merits of a matter pending
or impending in any court. If he did, in fact
say this, is it at a bounds for a judge
at a meeting that's supposed to be private to say
(02:55):
something like that.
Speaker 5 (02:57):
No, of course not. This complaint doesn't pass the last test.
It's not a public statement if the statement was only
judges present. I would love to attend meetings to the
Judicial Conference, but I'm never invited. I'm sure you would too.
It's a private meeting. By this reasoning someone should bring
a complaint against Justice Alito or indicating that he thought
(03:18):
Rovy Wade should be overruled in circulating his draft opinion
in Bobbs, which later became public, Judge Boseburg is not
responsible for other people leaking memos about things he said
in private meetings among judges any more than Justice Alito
would be responsible for the leak of his draft opinion
that he shared with other justices.
Speaker 2 (03:39):
In the complaint, the Justice Department also says that Judge
Boseburg had no basis for saying that because the Trump
administration has always complied with court orders, but the administration
violated Boseberg's verbal order in this very case.
Speaker 5 (03:55):
Judge Bozberg's role on the judicial conferences as a representative
fative of district judges in the District of Columbia, he
is responsible for reporting what judges on his court are
concerned about, and it would be at their election of
his duty if he didn't report concerns that they had.
(04:16):
Judges on his court had found the administration to be
out of compliance with a number of court orders by
administration officials, certainly including the Vice President, arguably including the President,
had mused about whether they would honor court orders on
various topics, even Supreme Court orders, certainly orders of district courts,
(04:41):
and the question of how to deal with the administration
violating court orders had already been up and down to
the Supreme Court by that point. Obviously it was something
they were concerned about. He was not, as we've been told,
expressing his own views, but rather the views of other
judges on his bench. I'm sure at other times the
(05:04):
chief Judge of the District of Columbia may have reported
that they feel inundated with bent in all cases where
they feel inundated with crystal meth cases. This is a
place where judges talk about the challenges of maintaining the judiciary.
He was doing exactly what he was supposed to be doing.
Speaker 2 (05:23):
Is it concerning that apparently a memo of the meeting
was leaked to the conservative website the Federalist.
Speaker 5 (05:32):
Well, the Judicial Conference is representing judges and business about it,
so memos of what happened at this meeting do get
circulated to judges. President Trump has made a point of
appointing members of the Federalist Society to the Judiciary, so
many Federalist Society members received this memo and one of
(05:53):
them apparently chose to leak it to the Federalist.
Speaker 2 (05:57):
It's also in isolation. They just took about his comment.
There must have been some kind of discussion that followed that,
or some remarks and response, but it's just isolated to
this one comment that he made, which is unusual.
Speaker 5 (06:12):
Well, it is, and they describe his comments as being
uncalled for, but they don't give us any context to suggest.
Speaker 1 (06:21):
That they weren't.
Speaker 5 (06:22):
And again, Judge Bosberg's role there was to bring to
the Judicial Conference concerns by judges on his court and
judges reacting negatively to administration officials and Republican senators suggesting
that they disregard court orders would be an obvious thing
to discuss. He doesn't indicate what the point of the
(06:46):
agenda was, what prompted this, or what anyone else said afterwards. Moreover,
the Code of Judicial Conduct prohibits comments on the merits
of the case. This is not a merit issue. This
is an issue about what does the court do when
it has decided the merits and one of the parties
doesn't comply.
Speaker 2 (07:07):
The Justice Department also complains about his handling of the
case involving the alleged Venezuelan gang members, saying he rushed
the government through complex litigation, sometimes giving the Trump administration
less than forty eight hours to respond.
Speaker 5 (07:24):
Well, the rushing was by the administration. The administration could
have agreed to suspend flights until this matter was litigated,
and the parties could have submitted their papers in due time.
The administration was in physical control of all of these people.
It had no need to send them to Alfalvadore. It
(07:45):
chose to do it in a great hurry, and that
led to a quick response from Judge Bosebury, many judges
would not have given the administration any operatity to respond
at all when enjoining a crisis that was entirely of
that party's making. Judge Boseburg bend over backwards to be
considerate of the administration and to accommodate the schedule, which
(08:10):
they insisted was very urgent, even though they never explained why.
Speaker 2 (08:15):
If you have a problem with the judge handling your case,
does a litigan file a misconduct complaint or wait for
the appeal.
Speaker 5 (08:24):
If what the judge does is sufficiently egregious, you can
file a misconduct complaint. It's not out now then appropriate.
But what Judge boseverg here did doesn't mean any of
the requirements of an improper act. It wasn't public, it
wasn't on the merits, and wasn't prejudicial. So the normal
(08:46):
procedure would be either to appeal or in some instances,
to move for the judge to be recused. But the
standard even for recusal and for appeal is much much
higher than this, and the standard judicial misconduct is higher still.
Speaker 2 (09:02):
You said doesn't pass the left test. What do you
expect to happen here?
Speaker 5 (09:07):
In a normal world? The Chief judge of the DC
Circuit would dismiss this outright, because this comes from the
Justice Department and from an administration that has been exceedingly
vindictive and is cost lines that none of its predecessors
have in criticizing sitting judges. The chief Judge may refer
(09:31):
it to a panel, but those judges would then dismiss it.
Speaker 3 (09:34):
We've talked before about this.
Speaker 2 (09:35):
This is the latest in a string of confrontations of
the Trump administration with the federal courts. They filed a
misconduct complaint in Fbruary against another DC federal judge, Anna Reyes,
accusing her of hostile and egregious misconduct for her sharp
questioning of government lawyers in the case on the Pentagon's
attempts to ban transgender people from military service. And last
(09:59):
month they suit every judge in Maryland over a standing
order that blocked the immediate deportation of migrants, challenging their
removal for two days.
Speaker 3 (10:08):
Is there a strategy here?
Speaker 5 (10:10):
Well, certainly, the strategies to intimidate federal judges the public
criticisms of them, which have led reportedly to spikes and
death threats, is part of this. A suggestion that they
don't have to follow them, the characterization of them as
radical leftists. Some of the judges they've called radical leftists
were appointed by Ronald Reagan, but no mind. So this
(10:33):
is all part of a broader strategy to delegitimate the courts,
to have people not believe that the courts can determine
the law, and they have people do entirely what the
government says. That's the path of the dictatorship.
Speaker 2 (10:47):
How unusual is it for the Justice Department to file
a complaint against a federal judge? In the past, under
other presidents have justice departments taken this course.
Speaker 5 (11:00):
Almost never, and a good example of that is the
behavior of Judge Cannon in one of President Trump's criminal cases.
A number of her rulings were very strange, sometimes self initiated,
rulings in favor of mister Trump, and the Justice Department,
though it.
Speaker 1 (11:19):
Had plenty of grounds.
Speaker 5 (11:21):
Didn't even move to recuse her, much less vile a
judicial misconduct complaint. The ordinary views of the Justice Department
has a strong interest in public respect for the judiciary
and doesn't want to undermine it. This administration obviously feels differently,
and tell us.
Speaker 2 (11:37):
A little about Judge Bosberg's reputation.
Speaker 5 (11:40):
Judge Boseburg's an extremely thorough, extremely smart judge. He basically
gives you what you get. If you give him a
serious argument, he'll either ruin your favor or give you
a careful, analytical reason why he won't. If you give
him a silly argument, he will say so and not
dignify it with a lot of extra words. He's very
(12:01):
hard working, very attentive to the law. He's ruled in
the Trump administration's favor on a number of matters, including
involving the Alien Enemies Act, because he felt the law
was in their favor. He's not a partisan.
Speaker 2 (12:15):
And by the way, the DC Appellate Court has not
yet addressed the complaint against Judge rey As for her
sharp questioning of government lawyers.
Speaker 5 (12:25):
I will point out that the standard was that lawyers
shouldn't be sharply questioned. They are only about two judges
I ever practiced in front of that. I couldn't have
filed misconduct complaints.
Speaker 2 (12:35):
Again, you have to have a tough skin if you're
going to be a litigator. Always a pleasure, David, thank you.
That's Professor David super of Georgetown Law. Coming up next.
A bload to labor judges. This is Bloomberg. The Third
Circuit Court of Appeals has found that the Labor Department's
internal agency judges don't have the power to hear enforcement
(12:57):
disputes over the H two A visa program for seasonal
farm workers. It ruled in favor of a New Jersey
farm that was trying to overturn more than a half
million dollars in penalties by arguing that the Labor Department's
judicial system was unconstitutional under Supreme Court precedent, the decision
could have broad ramifications. Joining me is constitutional law expert
(13:20):
Harold Krant, a professor at the Chicago Kent College of Law,
hel tell us about the challenge to the fines here.
Speaker 6 (13:27):
The tourture case concerned administration of the H to A
visa worker program, which is designed to bring in seasonal
workers from out of the country to help with orchards
in this case, or farms, or it could be entertainment
complexes where there's not enough US domestic workers. And the
program is a win win. It helps US industries and
(13:50):
it helps people from outside the borders get a little
taste of the United States and earn some money at
the same time, and so In this case, the Department
Labor alleged that Sun Valley Orchards had violated the requirements
of the program in many ways, requiring twelve hour working days,
(14:10):
providing inadequate water supplies, inadequate bathroom breaks, and so far.
And so they decided to bring an enforcement action, which
ended up being hundreds of thousands of dollars in fines,
as a way to punish Sun Orchards, also to give
some kind of compensation back to the workers, and at
(14:31):
the same time send a signal to others who were
using seasonal workers through the H two A program. And
so this case raised the question then of could this
enforcement action be brought within the agency itself. And this
comes on the heels of the Supreme Court's decision in
the JERKXI case, which surprisingly limited the types of cases
(14:55):
that can be brought before agency tribunals. And all the
court appeals are struggling with these cases now because the
Supreme Court did not make a very clear distinction of
what type of enforcement claims can be brought before the
agency and which have to go to court with a jury.
And that's a huge consequence because if you have an
enforcement action before court with a jury, it's slower, it's
(15:18):
more expensive, and as a result, agencies can bring fewer
enforcement actions and they will have to pick and choose.
So this case comes on the heels of many now
across the country struggling with challenges to agency enforcement actions,
trying to figure out which side of line do they
fall on. Can they be brought before the agency or
(15:38):
does the agency have to go to court with the
jury trial and bring the action there.
Speaker 2 (15:44):
As you mentioned, going a trial is expensive. Why do
employers prefer going a trial to having an administrative law
judge decide the case?
Speaker 6 (15:56):
Well, there are several reasons. I mean, one is they
think that with some credibility, they think that the ALJ
and the agency which will then decide the case may
well be biased against them. Some limited data bears us
out not conclusive.
Speaker 1 (16:12):
But there's some data.
Speaker 6 (16:13):
But on the other hand, they think that the agency
won't be as likely to bring the action if they
have to spend so much money on enforcement. So in
any given case, the goal would be to go to
court because it takes longer and the agency may not
be able to expend the resources to see it through.
Speaker 2 (16:33):
Here, the oral arguments hinged on a public rights exception
in the Jocracy case.
Speaker 6 (16:40):
So what the the people held in Charcracy was that
it limited what we understood to be the public rights doctrine.
The public rights doctrine suggested that the Seventh Amendment and
those kind of key rights that everybody enjoys in terms
of going to trial and having a jury of your
peers be a protection doesn't apply if the issues between
(17:03):
the government and a private individual. That was our old
understanding of the public rightstock and so that if Congress
set up an administrative scheme with penalties for dangerous workplace
or in this case, you don't treat your employees right,
or another case it's dangerous chemical storage or privacy violations
(17:24):
of the Congress sets up that scheme, it can choose
whether to have enforcement in an administrative agency if it
wanted to, because it had to do with a non
common law right of action that Congress has created, and
therefore can decide to use the instrumentality or mechanism of
an administrative agency to adjudicate it. That was the prior understanding.
(17:47):
The Supreme Court in Geocracy cut that back, but we
don't know exactly how far they really said. Two different
things difficult to reconcile. The first they said, if there
is a close common law analog to the action, even
if Congress has created a new one, if it looks
like a common law action, then the jury trial right remains.
(18:09):
And so in the Chocracy case itself, it was a
fraud action against people who had tried to swindle people
under the securities laws, and so the court there said,
this looks like a common law fraud action. It has
to go to a court. And most of the courts
of appeals that have been resting with this look at
that line and try to see how close to a
(18:31):
common law action does this particular issue exist in terms
of whether or not the enforcement can be placed in
a court or in an administrative agency.
Speaker 2 (18:43):
So Rob Johnson, a senior attorney at the Institute for
Justice and counsel for Sun Valley, told Bloomberg this decision
means that employers facing penalties for H TWOA violations can
now demand a jury trial in federal court. Is that
true for all violations or certain violations.
Speaker 6 (19:01):
Probably all violations of the H two A program. This
doesn't cover, of course, other administrative mechanisms. And indeed, the
Third Circuit has gone the other way in a separate case,
but he's right with respect to this particular mechanism for
seasonal workers. The court held that the particular enforcement looked
(19:23):
like a common law contract action because of the fact
that under the program, in essence, the Department of Labor
enforces employers to provide certain contractual services to these seasonal workers.
And so the court held that even though interestingly enough,
this arises in an immigration type of context, because we
(19:47):
of this pseudocontractual underlying requirement that all infractions have to
go to court, and you know, turning the lens the
other way, we know that, in fact, the Supreme Court
in indocracy itself said the immigration context is different and
therefore the Congress should have more plenary authority decide where
(20:08):
immigration violations should be brought. But the Third Circuit decided,
even though this arose in an immigration type context, the
real essence of it is a kind of pseudocontractual relationship
between in this case, the orchard and the seasonal workers,
and therefore that any infraction had to be brought before
a jury trial in the Federal District court.
Speaker 2 (20:30):
The implications of this case, how far reaching are they?
I mean, could it potentially impact other agencies that handle
enforcement actions.
Speaker 6 (20:40):
Well, there's a number of cases now that are percolating
around the country in the wake of darctracy, just to
see where the line should be brought. We know that
much of the mechanism of agency enforcement has been crippled
now because of the jocracy decision that instead there'll be
fewer cases because they have to be brought in just
a courts. And the question is how to figure out
(21:01):
which cases had to be brought in court in which
cases have to be blought before the agency. So to
show the other side of the coin, the Third Circuit itself,
in a different case just a couple of months ago,
decided that finds for not storing hazardous materials correctly, that
that could be fines could be blought before the agency.
(21:22):
They're a paint company allegedly had not stored dangerous materials
carefully enough, and the court in that case under the
Federal Aviation Administration had decided to bring again the action
before its own agency, and there was a challenge to it.
But the Third Circuit said that this civil penalty action
(21:45):
is okay to proceed before an agency because hazardous waste
regulations didn't exist of common law, and even though in
some ways all this was was a super negligence action,
the court in that case, again the same Third Circuit
as in the Orchard case, decided that an enforcement nation
before an agency could go ahead. So these two cases
within one circuit illustrates how the line suggested by the
(22:09):
Supreme Court intocracy is almost impossible to apply evenly, and
so all the courts of appeals are in disarray in
how to limit the ability of the public rights doctum
to exist, and which case is the funnel to the
sederal district courts and which can continue on before the
agency tribunals.
Speaker 2 (22:29):
The panel consisted of three judges, all appointed by Republican presidents.
Speaker 3 (22:34):
Do you think that made a difference.
Speaker 2 (22:36):
And should they try to appeal to the full circuit,
which is more evenly balanced the full third Circuit?
Speaker 6 (22:42):
You raise a great point. I mean, I think that
this is a politicized issue, not in most people's minds,
but it is in terms of certain kinds of sort
of judges with an anti regulatory bias, and even members
of the Supreme Court have held that there should be
no agent see enforcement tribunals at all. I mean people
(23:02):
like justice course such in particular, and judges with that
kind of bias, and they could be Republicans, maybe some Democrats.
Mostly Republicans would tend to find almost no case appropriate
to be brought before an agency tribunal, with probably some
exceptions as for immigration, foreign affairs, et cetera. So to
a certain extent, they supolicized. I don't think it's exactly
(23:24):
the same fault lines as we think of in terms
of pro Trump or anti Trump, but certainly it is
in terms of anti regulatory Republicans versus others with a
different bet. So this case, because of the split in
the third Circuit of one of these cases that we've discussed,
may go to the Supreme Court, because the Supreme Court
really does need to clarify the extent of jocracy and
(23:49):
when the stem of amendment, in other words, eclipses an
agency's ability to have an enforcement action.
Speaker 2 (23:55):
If you're in favor of agency actions and power, do
you really want to go to the Supreme Court? Again,
we want this to go to the Supreme Court.
Speaker 6 (24:03):
I think within the Trump administration itself, there has not
been a clear signal of what the Trump administration's position
will be, So the Soitser General will have to sift
through these cases and decide what their position is. And
they've made announcements about other administrative law issues, you know,
principally with the respect to removal of officers, but they've
(24:25):
been silent with respect to the breadth of dracracy, So
we don't exactly know their position. One would think they
might decide to strip their own agencies of power, but
they haven't done that. So they're obviously probably a little
bit ambivalent about stapping their own agency's power to have
these enforcement actions before their own agencies. So that's the
(24:47):
decision they'll have to make, and they haven't sent a
clear signal yet.
Speaker 2 (24:51):
I guess your priorities can change depending on whether you're
the one in charge of the agency you're not, thanks
so much, how that's Professor Harold Krent of the Chicago
Kent College of Law. Coming up next on the Bloomberg
Law Show. A controversial Trump nominee wins a lifetime appointment
to the Third Circuit. I'm June Grosso and you're listening
(25:13):
to Bloomberg the Tenth Circuit Court of Appeals. Here's cases
from Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. Currently
seven judges sit on the Tenth Circuit, seven appointees of
Democratic presidents and five appointees of Republican presidents. But the
(25:34):
US Judicial Conference apparently thinks that's too many judges for
the circuit. Joining me is an expert in the federal judiciary,
Carl Tobias, a professor at the University of Richmond Law School.
Carl Inner report the Judicial Conference agreed to recommend that
the President and the Senate do nothing next time a
(25:55):
seat opens up on that Denver based tenth Circuit. Why
did they make that recommendation.
Speaker 1 (26:02):
They do this biennial survey of judge ship needs, and
they look at workloads in appellate district courts with consistently
low per judge ship caseloads to see whether they can
make this recommendation. And here I guess they found that
the tenth should not do that fill that judge ship
(26:24):
and some other district courts too, and they, you know,
they promise it on very conservative estimates of caseload and workload.
But I think in the past, actually the President and
the Senate have ignored those requests from the Judicial Conference,
even though the data show that they don't need all
the judges just because they don't want to pass up
(26:47):
the opportunity to fill a vacancy.
Speaker 2 (26:49):
In his first term, President Trump ignored this, and President
Biden also ignored this. I mean, the way judicial appointments
have become so much more political recently, it seems unlikely
that any president is going to pass up a chance
to appoint any circuit court judges.
Speaker 1 (27:08):
That's right exactly. I think there's no question about it.
And the presidents believe that most of the policy is
made at the appellate level for multiple states within a
particular appeals court, and so it's a lost opportunity if
you don't capitalize on it. So I have every expectation
that this will be ignored.
Speaker 2 (27:27):
Don't the workloads of circuit court judges change over the years.
I mean, if you take it away this time, might
you have to put it back another time?
Speaker 1 (27:37):
Well? You might, But again, I think they're pretty conservative
about their estimates, and they've been doing it over a
long period of time, so generally they're pretty accurate about that.
And there aren't huge swings in the appellate case loads.
I don't believe, And you know, increasingly in the appeals courts,
(27:57):
you're not getting full dressed opinions, they're not providing oral arguments.
All of those are fewer and fewer, and the staff
does a lot of the work. There are many people
who you know, clerks and other people who to look
at the cases rather than give them full treatment. You know,
they just had to do trioze because they need more resources.
(28:19):
But Congress is not going to provide more judge ships.
It doesn't look like it. You know, they have the
bill I think came out of committee in March, the
one that you know was on the floor in twenty
twenty four, but Biden said he wouldn't sign it because
it was after Trump's election, and so it was reintroduced
on the House side and it has I think passed there,
(28:43):
but no action in the Senate. So it may be
that that Trump will get twenty two more district seats
in the first tranch if it passes, and they may
push it.
Speaker 2 (28:52):
That doesn't need just a simple majority or more best
the Senate.
Speaker 1 (28:56):
That's a good point. In the Senate, I believe it
would need sixty votes to get cloture, and so not
clear that they would have that that was the beauty
of the Senate passing it last time was before anybody
knew who was going to have a Senate majority and
who would be the president. And so that's the time
(29:17):
to strike, you know, in the election year, like in
twenty twenty eight, because then no one can predict what's
going to happen. And once the Republicans knew that Trump
had won and they had a majority, and of course
they were happy to sign on. The House had not
passed it at that point. You know, Biden was within
his rights to then say no, I'm not going to
(29:38):
sign that because you had an opportunity and you didn't
take it.
Speaker 2 (29:42):
Well, I think it's the biggest fight over judicial nominee
in Trump's second term so far. Over Emil Beauvey, his
former personal criminal lawyer, as well as now in the
Justice Department, and the Democrats really tried everything about to
try to stop his appointment.
Speaker 3 (30:03):
They devote a lot of time and resources.
Speaker 2 (30:06):
They stormed out in protest out of the Judiciary Committee
when the vote was on, They had whistleblowers ready to
come forward, and yet it still got through. So what
does this show you about future nominees? I mean, there
was so much opposition to Bouve from different parts of
(30:26):
the legal community.
Speaker 1 (30:28):
Well, that's right. I mean there was there were seventy
five or so retired state and federal judges who said
that the Senate should not confirm him, and there was
a fair amount of evidence, and the hearing was one
where I think Bouvy was not very forthcoming and he
(30:49):
refused to answer a number of questions and seemed evasive
about others. And as you suggest, there was a lot
of pretty strong evidence that was just never heard. They
really asked for these whistleborrowers to be allowed to come
in and give their testimony under oath, but it didn't happen.
And in the markup when they were discussing the nominee,
(31:11):
I think there was a real question as to whether
the vote for bov was valid at the time because
they didn't have two members of the minority. There was
Booker by himself trying to harangue the rest of the members,
and they just voted on through. And so I'm worried
about the process going forward. What are we going to
(31:32):
see when you only have five minutes to ask questions
the hearing, and that's not much of an opportunity. And
I noticed the first circuit and ninth circuit nominees acted
a little bit like bov in the sense that they
were not answering questions, saying they were too political or
it wasn't appropriate for a nominee, and then also being
(31:55):
pretty evasive and not really answering the questions, and the
same thing the district nominees. So I'm concerned about the
process that we saw, and it was particularly troubling with
Bowie's confirmation process. They used to give a second round
if it were a really important position, and that probably
should have done it in this situation, and it would
(32:17):
have made the Democrats at least feel better and they
could have asked more questions, but they didn't.
Speaker 2 (32:22):
Grassley has been supportive of whistle blowers, and yet he
refused to allow them to testify, and I just wonder
what would the harm have been in allowing them to
testify it.
Speaker 1 (32:35):
Well, I think they were concerned about what the whistleblowers
would have to say, even though it would be under
oath and so they would have to tell the truth.
That's very unfortunate that something didn't happen to allow them
to come forward. And I think Grassley was concerned, of course,
because he has been a supporter of whistleblowers, but in
(32:56):
this situation, it was just too charged, apparently even for him,
and so I didn't let it happen. And Democrats, you know,
and Booker especially were very troubled and suggested that they
should have a special hair they rejected.
Speaker 2 (33:13):
I don't know of another case I've seen in my
fourteen years in the Senate where someone so unqualified for
the benches before us.
Speaker 3 (33:19):
So I often.
Speaker 2 (33:20):
Wonder when you have these kinds of really contentious nominations,
what happens when that person gets on the Circuit Court?
Speaker 3 (33:29):
I mean, is there any blowback?
Speaker 1 (33:31):
I think judges try to be collegial with the people
they're working with, because you know, they're always going to
be sitting on three judge panels except when they're on
bod and you have to be able to work with
colleagues whose views you don't always agree with. And so
I think the judges of the Third Circuit are pretty
welcoming group and will do their best to help bovy,
(33:56):
acclimatee and be a productive member of court. I've seen
that happen, even though the particular judges you know have
very different perspectives on judging and substantive issues and all
of that, just because it only can work if everybody
works together, and both together, because there's plenty of work
to do. I think, you know, Booker was particularly concerned
(34:18):
because the White House didn't consult on the nomination with
the Home State Senators in any meaningful way, and we
heard that same took play for the first in the night,
and so that's unfortunate because at least there should be
some you know, interaction between the White House Counsel and
the Home State Senators and so that needs to be
(34:39):
reinstated and done because they don't have the blue slips.
I wonder if you saw that the President Tuesday night
posted on x jaw boning grastly to get rid of
the blue slip and criticizing Republicans for retaining it, and
Grassly pushed back at the hearing day to say, we're
(35:02):
retaining the blue slips for districts and for US attorneys
because they protect the prerogatives the Home State senators and
the people who they represent in those states. And that's
been Lindsay Graham's view as chair and ranking member, and
so I think that will go forward, but of course
Grassley also instituted the circuit exception for blue slips, and
(35:25):
so Booker and Kim didn't have any opportunity to hold
back the blue slip for a Bobe.
Speaker 2 (35:33):
Grassley said he was offended and disappointed by President Trump's
social media post. I mean, if there's more critique from Trump,
he has all these US attorneys that are being held
up because he can't get home state senator approval. I
wonder how long this opposition to Trump's suggestion will last.
Speaker 1 (35:54):
I think he's a person of his word, and I
think he has worked very well with Urban when they
were either ranking member or chair and alternated. And I
think he'll stick by that because you know how important
it is, and Graham will back him up. I think
it's not going to happen, and it benefits the minority party,
(36:15):
and they know what goes around comes around, and they
often say that, and you never know in the Senate
because it's so close who is going to win the
next midterms or the next majority. And so it is
important because otherwise you have situations where the home state
senators don't have an opportunity to make their views known.
(36:37):
And that's unfortunate because they have to be responsible to
the voters and so they are concerned about that. But
I think Grassley will will be strong on this, and
I'll have plenty of support, certainly from the Democrats, but
maybe some Republicans as well.
Speaker 2 (36:53):
I'll put that in the column of we shall see.
Thanks so much, Carl. That's Professor Carl to Buy of
the University of Richmond Law School. And that's it for
this edition of The Bloomberg Law Show. Remember you can
always get the latest legal news on our Bloomberg Law podcasts.
You can find them on Apple Podcasts, Spotify, and at
www dot Bloomberg dot com, slash podcast Slash Law, and
(37:18):
remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso and
you're listening to Bloomberg
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