Transcripts For CSPAN3 Judicial Nominations Process 20180126

Whats the future . Or wtf. Im director of Strategic Engagement at the American Constitution Society and i have the privilege to work on the relevant and dynamic topic of judicial nominations and amply fieg the courts near and deer to all a nonprofit and nonpartisan organization, acs works for positive change by shaping debate on the important legal and constitutional issues and we have networks of lawyers, law students, judges and policymakers dedicated to those ideas. I encourage you to visit our website, acs law. Org. Attend ourevents and get involved in the local and chapters across the country. Those here in d. Krfrmt get in touch with our d. C. Lawyer chapters. We also ask those of you on social media to follow acs on twitter, please follow us at acs law and acsdc chapter. We engurj you to join the dc chapter in using the hashtag, wts and acstalks and you can see photos on instagram page. I want to take a moment to thank the dc lawyer chapter. Instead fast to the attention in the courts and issues o of nominations cribbing to Research Effort and im grateful to the entire chapter in particular susan wilker for hosting this exciting conversation. And a special thank you to the Leadership Conference for hosting us here tonight in their beautiful space m the importance of the courts and judges cannot be overstated. Judges are on the front line of defending rule of law and decide cases every day on issues that we care about. From immigration, to who can enter our country, reproduct dif health care, consumer protection, clean water to lgbt q rights. There are nearly 900 judges that serve on the u. S. District if Circuit Courts of appeals and they decide the vast majority of cases. Its important to consider closely who is being nominated to the courts because quite often, these are the judges considered for future vacancies. Justice said she was elevated last year with previously serving on the 10th Circuit Court after appeals. We have a president who individual judges and we have a Senate Majority leader and Committee Chair rushing their consideration of this president s nominees. Right now there are more than 150 current known future vacancies on the federal court which represents nearly 20 of the federal judiciary. This is unfortunately, by design. After the Senate Majority took the step of holding open the Supreme Court seat that president obama nominated chief garwin for, in hopes they can confirm nominees they were confident in to fulfill the agenda and recently, proposals on congress to expand the number of so that this administration can fill more to reverse the judicial legacy of president obama. The white house and Senate Majority have been aggressive to stop the courts. Confirming 23 lifetime judicial appointments one to the Supreme Court and 12 to the Circuit Court of appeals. President obama first year, the Senate Confirmed 13 3 to the Circuit Courts. This administration has been aggressive in naming nominees without consultation from senators, they have been embarrassed by some of the symptoms of their rushed process having to reconsider moving forward, for example with three incredibly troubling nominees sh, the concerning trends we have seen remain in some others. Nominees for example, who lack legal experience. Lack experience in the jurisdiction which they are nominated. Come from strong ideological backgrounds, deeply troubling anonymous statements, they might not have received from the aba and not fully forthcoming in the Senate Judiciary questionnaire or hearing. Many senators have tried to be a check and provide advice and consent by withholding their blue slips that signal to the Committee Chair that the senators from the state or that nominee would serve are supportive of that nomination. The chair would proceed with that nomination if that one had the support of both of their home state senators. Just last month the Senate Judiciary Committee Chair made the decision that he would be the sole ash trir. Here to talk about this is amazing women. A true honor, they are relentless, fiercely smart and funny and experts on this topic. Jennifer, she is the White House Correspondent in congressional reporter for the you have i think ton post. She is able to really funny seemingly really funny about devilling into a lot of the various aspects of this otherwise sometimes mundane process with incredible perspective. Were so thankful to jen and the panel for being here. Thank you. Wow. Go on. No, really. Come back. Hi. Welcome to judicial nominations wtf. Make of that title what you will. I will introduce our panelists. Seated next to me is kristen clarke, president and executive director of the Lawyers Committee for civil rights under law. Sitting next to her is kristine lucius. Executive vp for policy at the Leadership Conference for civil rights. And on the end is sharon mcgowan, director of strategy at lambda legal. So lets jump right in. Between all of your backgrounds and your wealth of knowledge of the law and the years of experience covering the judicial branch, how would you sum up the last year in one word in terms of trumps judicial nominations . One word. Earthshattering. I guess thats one word. Okay. Is it hyphenated . It is hyphenated. I was going for the parade of horribles. Just put in the hyphens. I gave you guys these questions in advance. One word. You can tell people who have tried to sort of get in the word limit, ill put some hyphens in there. My one word, there are many other words, but the one word i would use is revealing. Oh. Thats deep. So have you each of you can weigh in on this, have you been surprised at all by the last year and trumps style of nominating and rushing people to the process . And i guess by style i mean hes been very fast. Hes been pretty sloppy. And his judicial picks have been heavily shaped by rightwing groups like the federalist society. Is this what you expected, you know, a year or so ago . Well start here. So, you know, as a civil rights lawyer, the courts matter. And i think that courts matter for all americans. The courts play an incredibly Important Role in american life. There tends to be a lot of focus on the United States Supreme Court, but the reality is that there are just a handful, a few dozen cases that get heard and resolved by the u. S. Supreme court. There are tens of thousands of cases that move through the Federal District and federal Circuit Courts that touch every aspect of our lives, and i think that historically, we have seen president s really respect the integrity of the courts and put forth nominees who sometimes invite debate, put forth nominees who sometimes, you know, are polarizing, but historically, weve seen president s put forth nominees who can garner some degree of bipartisan support. And that hasnt been the case with President Trumps nominees and i think thats because he has been so singularly focused on putting forth radical ideologues who fall far outside the legal mainstream. Hes put through people of low caliber, as we saw with Matthew Peterson, and he has been relentless of putting forward young white men for vacancies that exist across our federal courts. I think thats a shame. White men make up about 31 of the u. S. Population but have represented the lions share, more than 80 of this president s nominations. I think that sends a really dangerous message to the africanamericans, latinos, to women, to the lgbtq community. People who represent the highest levels of their Legal Profession and could ably occupy seats on these courts. So what were seeing from President Trump i think is markedly different than anything weve seen from a president in modern time. So is this what you expected headed into the Trump Administration . I knew things would be bad but i didnt think theyd be that extreme. Thats what weve seen from this president. Just nominees who are incredible outliers who hold abhorrent views on civil rights issues, abhorrent views about lgbtq people. People who have dedicated their lives to opposing civil rights. I mean, these are the kind of people that he is focused on with laser precision on putting into these lifetime positions on our courts. Jen, i would say that what it probably shouldnt surprise us that hes moved this quickly or that theyre this extreme because during the campaign, when he was trying to convince republicans to choose him as their nominee, he used judges and judicial nominations as a way to prove his ideology and his that he was worthy of their of their support. And during that process, he bragged about and got applause lines on litmus tests about judges he would nominate if he became president. And he also outsourced the Selection Process to two rightwing Interest Groups and what i think weve seen already is they are not very good at vetting or maybe theyre good at vetting, it depends on whether you think this is a bug or a feature of his judicial nominations. But during the campaign, trump, thencandidate trump, made judicial nominations in that he wanted to remake the courts and that we would have a litmus test on reproductive freedom and on guns. He bragged about it. He got applause lines about it. And he clearly indicated he was going to do this outsourcing that he has done. I dont think, though, when we saw that, we expected that there would be people blogging in defense of the kkk or that they would be so extremely hostile to lgbtq individuals. You know, i think that kristens right, the courts matter enormously. I think we are surprised at how bad, how biased, how hostile to civil rights theyve been. I think we expected given the Campaign Promises that they would be extreme, but im not sure we expected the full dimensions of them. And i would just echo a lot of what kristine said, in many ways my choice of the one word, which was a oneword answer, gold star, thank you get all the points. In terms of revealing, i think in many ways the Trump Administration has revealed much about itself through the nominees that it has chosen and in many ways Senate Republicans have revealed much about themselves in how they have conducted themselves. I think, you know, i completely agree that many many people sort of had the narrative whether you believe it or not, they were willing to hold their nose and vote for trump because of the courts and to see what Mitch Mcconnell was willing to do and the norms he was willing to disregard with respect to judicial nominees when president obama was in office. You know, weve always sort of talked about the fact that there has been in many ways an intensity gap between our view of the world and those on the other side and their understanding, they have been lying in wait for this moment, right . This is the not surprised by the caliber of the nominees. In part because certainly the Lgbt Community knew what we were getting with mike pence, and frankly, you know, i somehow suspect that President Trump is not reviewing the dossiers of these nominees carefully when deciding who to put forth, but there are individuals like mike pence who absolutely sort of knew that this was sort of part of what they would get by signing on to this agenda. And so to the extent that as kristine said, is this a function of no vetting or very careful vetting . Theyre going to keep throwing out nominees like this until we can beat one back which makes the jeff matier story so interesting, im sure well get to that, again, what is the exception, what is the new norm . I do think it really does demonstrate that there is an unwillingness to actually serve in that role of a check and of a balance on these excesses out of the executive branch that i think in some ways is sort of the most troubling sort of revelation over the last year. And weve seen some unlikely defenders of the courts. I dont know if i would have put senator kennedy from louisiana on my short list of people, there to make some attempt to defend the dignity of the courts. Would i wish his list were more, you know, capacious . Of course. But i do think that this is a snowball that has picked up momentum has its rolled down the hill. How does trump already change the federal bench when youre in, obviously he got a Supreme Court nominee confirmed, which is what a lot of people focus on the most, but heres gotten how many district and Circuit Court nominees confirmed . I know he got 12 Circuit Court nominees through in one year which is a report of in fact, i have the statistic here. Thats more than any president has gotten confirmed in their first year since the courts were created in 1891. 12 Circuit Court nominees in one year. Thats amazing. But what do you think that his that trumps biggest effect has been on the bench already . Is it the Supreme Court . Or is it some of these Circuit Court judges . Do you have any thoughts on that . I think that we have to look at the full picture. The ability to appoint someone to the Supreme Court so early on in this tenure was significant. Were now into term two with judge gorsuch, and were already seeing that he is closely aligned with Justice Thomas on a number of cases. And i think he is proving to be a justice who matches the litmus test, the ideological litmus test that this president has been using for nominees across the board. A litmus test that was shaped and defined in large part by the Heritage Foundation and the federalist society. This is a president whos all about identifying socalled originalists and texturalists who are going to bring with them a goal of very narrowly reading the constitution and rolling back a lot of the protections that weve seen emerge through the courts over the past decade. So the Supreme Court is just the tip of the iceberg. I think that he has moved forward at a lightning pace in confirming a Record Number of judges to the district and Circuit Courts in year one. Former judge shira shinland of the Southern District of new york has offered a lot of commentary about what President Trump is doing with respect to judicial nominations and i think that shes exactly right when shes identified this as, perhaps, his Lasting Legacy. Right . Because these are young judges outside the mainstream who will be there for decades issuing rulings on issues that impact all aspects of american life, not just issues on Voting Rights and criminal justice and employment discrimination and fair housing, issues on corporate corporations and issues really that touched all aspects of our lives. So i think were already seeing and feeling the impact and this president really has been racing forward and moving nominees at a pace that exceeds that of any other president in recent time. Thoughts . I agree with everything kristen said. I think also her earlier point about making the courts whiter and more male, you know, reversing that trend that we had been seeing on diversifying the judges who serve in communities that should reflect the communities they serve. I think thats going to. Be a Lasting Legacy as well. But the other thing i would say is nominating gorsuch to a seat held hostage and then lowering the threshold for votes, so when they change the rule that instead of having a 60vote threshold in the senate, to 50, even though that decision was made by the senators, it was made because President Trump chose someone so divisive. There was not the consultation that usually occurred across the aisle. There was not an interest in nominating someone who would get strong bipartisan support. So i think one of the lasting legacies is that from now on, a simple majority will confirm future Supreme Court justices. So as impactful as i think gorsuch will be, i also think that is a longer legacy that that rule change happened. I think one of the other ways that were seeing the change already felt is, for example, when judge gorsuch was at his confirmation hearing and gave his lip service to precedent and the rule of law and yet at the first opportunity that was made available to him, then Justice Gorsuch decided that the Marriage Equality decision didnt, in fact, answer the question of whether or not married samesex couples were entitled to be on their childs birth certificate. Knotwith standing the langua notwithstanding the language of obergerfeld, i think we see Justice Gorsuch doing, going to ripple down to nominees we are getting confirmed to the court of appeals is saying try it, se