Transcripts For CSPAN Judicial Nominations Process 20180111

And thank you all for joining us this evening. For the conversation, the judicial nomination process. Whats the future . Or w. T. F. Im the director of Strategic Engagement at the American Constitution Society and i have the distinct privilege of working on the very relevant and dynamic topic of judicial nominations and amplifying the importance of the courts to the issues near and dear to all of us. Lena a. C. S. Believes that law should be a force to improve the lives of all people. A nonprofit and Nonpartisan Organization, a. C. S. Works for positive change by shaping debate on the vitally important legal and constitutional issues and we have networks of lawyers, law student, judges and policymakers all across the country dedicated to those ideas. I encourage to you visit our website, acslaw. Org, attend our events, and get involved in our local and student lawyer chapters all across the country. For those of you here in d. C. , please get in touch with our d. C. Lawyer chapter, many of those leaders are here in the room this evening and are happy to speak with you more. We also ask those of you on social media to follow acs on a. C. S. On twitter. Please follow us at acslaw. Theyll be live tweeting this event and we encourage you to join the d. C. Chapter in using acstalk. Swtf and and you can also view photos of the event on the d. C. Chapters Instagram Page acs underscore d. C. I want to take a moment to thank the d. C. Lawyer chapter, the chapter has been steadfast in their attention to the courts and the issue of nominations, with leaders contributing to Research Efforts and im also deeply grateful to the entire chapter and particular susan for hosting this exciting conversation this evening. And a special thank you to christine and the entire Leadership Conference on civil and human rights for hosting us here tonight in their beautiful space. The importance of the courts and judges cannot be overstated. Judges are on the front line of defending rule of law, and they decide cases every single day on issues that we all care about. From immigration to who can enter our country, to Reproductive Health care access, to Voting Rights, to consumer protection, to clean water, to lgbtq rights. While much attention has been focused on the Supreme Court, there are nearly 900 judges that serve on the u. S. District and Circuit Courts of appeals. And they decide the vast majority of cases. Its also important to consider closely who is being nominated to these courts because quite often these are the judges who are considered for future Supreme Court vacancies. For example, Justice Gorsuch, who was elevated to the Supreme Court last year, had previously served on the 10th Circuit Court of apeels. We have a president who regularly denigrates the judiciary and individual judgments judges and we have a Senate Majority leader in Judiciary Committee chair what thank are rushing the contribution of this president s nominees. There are more than 150 current and known future visa can vacancies on our federal courts which represents nearly 20 of the federal judiciary. This is, unfortunately, by design. After the Senate Majority took the disgraceful step of holding open the Supreme Court seat that president obama nominated chief judge garland for, he they also kept open more than 100 lower Court Vacancies in hopes that they could confirm nominees they were confident in to fulfill their agenda. And recently there have been proposals calling on congress to dramatically expand the number of lifetime judgeships, so that this administration could even filmore of them to, quote, reverse the judicial legacy of president obama. The white house and Senate Majority have been aggressive in fulfilling their agenda to stop the courts. To date the senate has confirmed 23 lifetime judicial appointments. One as we know to the Supreme Court. And 12 to the Circuit Court of appeals. By comparison, in president obamas first year in office, the senate only confirmed 13 judges. Three to the Circuit Courts. This administration has been aggressive in naming nominees, often without complication from senators, bucking long standing practice. 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. However, the concerning trends that we have seen in these nominees remain in is some of the others. Nominees, for example, who lack legal experience, lack experience in the jurisdiction which theyve been nominated, come from strong ideological backgrounds, have made deeply troubling public, sometimes unanimous, statements. They may have not received a qualified rating from the a. B. A. Standing committee on the federal judiciary. Or are not fully forth coming in their senate Judiciary Committee questionnaire or in their hearing. Many senators have tried to be a check on this administration and have asserted their constitutional responsibility to provide advice and consent by withholding their blue slips, those little blue pieces of pape that are significant nat to the senate Judiciary Committee chair that the senators from the state where that nominee would serve are supportive of that nomination. The long standing practice has been that the senate committeer Judiciary Committee chair would only proceed with that nomination if it had the support of both of their home state senators. Yet just last month the senate Judiciary Committee chair made the unfortunate decision that he will be the sole ash tror whether a nominee moves forward. Here talk to about this and more is a panel of amazing women, working with them in many of our other incredible partner, many of them who are in the room tonight, is a true horn. They are all relentless, fiercely smart, funny and truex perts on this topic. So to introduce them and this panel is jennifer, jen is the White House Correspondent and congressional reporter for the huffington post. Shes one of the most astute reporters who has long covered the judicial nomination pros sess and shes able to process and shes able to seemingly really funny, be really funny about delving into a lot of the various aspects of this otherwise, sometimes mundane process. With incredible perspective and so we are so thankful for jen and the panel for being here. Thank you. Jen wow. Go on. [laughter] no, really. Come back. Hi. Welcome to judicial nominations w. T. F. Make of that title what you will. I will introduce our panelists. Seated next to me is kristen clark. Shes the president and executive director of the Lawyers Committee for civil rights under law. Sitting next to her is christine lucious, executive b. P. For policy. At the Leadership Conference on civil and human rights. And on the end is sharon mcgowan, director of strategy. So well jump right in. Between all of your backgrounds and your wealth of knowledge on judges and the law, in your years of experience combined, covering this the judicial branch, how would you sum up the last year in one word in terms of trumps judicial nominations . One word. Earth shattering. I guess thats one word. Ok. High ofen as ied hyphenated. It is. Put the little high ofens next to the word. I gave you guys these questions in advance. One word. [laughter] you can tell people who have tried to get over the word limit. My one word. The many word the one word i ould use is revealing. 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 . I guess by style i mean hes been very fast. Hes been pretty sloppy. And his judicial picks have been heavily shaped by right wing groups like the federalist society. Is this what you expected a year or so ago . 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 theyre 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 h 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 forth people of locale ber, as we saw with Matthew Peterson. And he has been relentless in putting forth young white men for vacancies that exist across our federal courts. And i think that 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 africanamericans, latinos, to women, to the Lgbt 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 its markedly different from anything that weve seen from a president in modern time. Was this what you expected heading into the Trump Administration . I knew things would be bad but i didnt think they would be that extreme. And thats what weve seen from this president. Just nominees who are incredible outliars. Who hold abhorrent views on civil rights issues. Abhorrent views about lgbt people. People who have dedicated their lives to opposing civil rights. These are the kinds of people that he is focused on with laser prevision, on putting into these lifetime positions on our courts. I would say that what it probably shouldnt surprise us that hes moved this quickly or that they are 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 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, then candidate trump, made judicial nominations in that he wanted to remake the courts and he 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 k. K. K. Or that they would be so extremely hostile to lgbtq individuals. You know, i think that kristens right. The courts matter enormously, but i think we are surprised at how bad, how biased, how hostile the 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 christine said and in many ways my choice of the one word, which was a oneword answer, gold star, thank you, in terms of revealing, is that 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. And i think i completely agree that many people sort of had the narrative, whether you believe it or not, that 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. This is the payoff. And so in some ways i am 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 part of what they would get by signing onto this agenda. And so to the extent that, as christine said, is this a function of no investigate or very careful vetting, and theyre going to keep throwing out nominees like this until we can beat one back, which makes the jeff mattier story so interesting, and im sure well get to that. In terms of what is the exception and what the is the new norm. But i 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 that i dont know if i would have put senator kennedy from louisiana on my short list of people who would have been there making at least some attempt to defend the dignity of the courts. I wish his list were more can patience, of course. But i do think that this is a snowball that has picked up momentum as its rolled down the hill. How does trump already change the federal bench . When youre in . Obviously get to a Supreme Court nominee confirmed which is what a lot of people focus on the most. But hes gotten how many district and Circuit Court nominees confirmed . I know he got 12 through in one year which is a record. I have the statistic here. Theres 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 sflrd 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 his tenure was significant. We are now into term two, with judge gorsuch, and were already seeing that he is closely alined 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 move forward at a lightning pace in confirming a Record Number of judges to the district and Circuit Courts in year one. Former judge 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. Because these are young judges outside the mainstream who will be there for decades issuing rulesings on issues that impact ll aspects of american life. Issues on corporations and issues that touch all as expects f our lives. Were already seeing and feeling the impact and this president has been racing forward and moving nominees at a pace that exceeds that of any other president in recent times. Christine 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, you know, 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. When they changed the rule, that instead of having a 6 0vote threshold in the senate to 50, even though that decision was made by the senators, it was made because President Trump chose someone 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. 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 were seeing the change already felt is, for example, when judge gorsuch was at his confirmation hearing and he give his lip service to the president 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 actually answer the question of whether or not married samesex couples were entitled to be on their childs birth certificate. Notwithstanding the language that talked about birth and death certificates. Im not sure how that missed his attention. One of the things i think we see Justice Gorsuch doing and is going ripple down with the kinds of nominees we see getting confirmed to the court of appeals is sending up a flair saying, try it and see if you can get away with it. It really is an emboldening of individuals who, again, will go through the confirmation process and in many ways i feel very sympathetic to the frustration that has been expressed perhaps more colorfully than i can on television by senator whitehouse, although he usually keeps it clean because hes recorded as well. But this notion that we have individuals who we know exactly why they have been nominated and just looking at an lgbt record of individuals, one in three have explicitly, blatantly antilgbt credentials and have clearly been nominated not despite of that but in fact because of that. And on any other sort of matrix you you can look at individual and think about the nomination of farr in North Carolina, the offensiveness and the outrage of that nomination. And yet instead that is probably part of how he jumped to the head of the queue, right . So i do think there is really an attempt to sort of signal a new day and we will see the arguments become sort of more outlandish and potentially decisions from lower courts becoming more outlandish because there has been this sort of signaling that things that were considered settled may not be anymore. Jen so lets talk about the diversity of trumps judicial nominees. I know as of late november, trump had nominated 54 white judges. Three American Indian judges. One latino judge. And one black judge. Thats in a year. Of his judge, only 19 of them are women. So, as the panelists have noted, that leaves a whole bunch of straight white guys in line to become federal judges. So my question is, obviously that looked bad from a diversity standpoint. But i want you to dig in a little bit and tell me what that means to regular people. What affect does that have on cases that are decided all across the country by federal judges who are consistently straight white men . What does that really mean . Kristen well, on a real basic level, our courts, they are public courts that serve the American People and they should reflect the diversity of the country. Of the communities they serve. So its a travesty to see a slate of nominees advanced over the past year that in no way reflects america today. We have to remember that our courts right now, theres a lot of work that needs to be done to address the historical underrepresentation of women and minorities who serve as judges. During obamas eightyear tenure, he put forth about 320 or so judges. 42 of them were women. 19 of them were africanamericans. And about 10 of them were latino. Thats a lot of work and progress that we are now reversing. We have a president who essentially is turning the clock back to the jim crow era. When it comes to nominations for our federal courts. And it sends a dangerous message to the public. We want a public that can have confidence in the outcomes that are produced by courts. We want the public to feel that our courts are served by judges who are fair and impartial. And moreover, we want courts that are represented by judges who bring a diversity of perspectives. So that they can truly handle and wrestle with the complex and varied issues that come before them. Cases that concern immigrants rights, lgbt issues, reproductive rights. Really the business that goes before courts demands that we have judges that bring with them a diversity of perspectives. , so you know, its truly a travesty what were seeing from this president. Christine so i would add that the senate Judiciary Committee did a hearing a couple of years ago talking about the influence, even if theres just one woman on a threejudge panel, how it feablingts even how the male affects even how the male judges vote and rule on those panels. It was this really impreves statistical study about the influence of just adding that ne element of diversity. That showed how it can move the needle. Jen how did it affect them . Kristine it wasnt just the study about how the female judges ruled, but it was a study to show their influence on panels. Im sure a. C. S. Can dig up that stat and put it up on their website. But it was in a Senate Judiciary hearing about five years ago. And it was one of those moments where i think when we talk about diversity, we often talk about Public Confidence in the court, which is so important. Especially at a time where people really have, you know, grown to understand systemic bias and have distrust in institutions and government. But also i think its interesting to not just think about it for diversitys sake or confidence sake, but also how it impacts the other existing establishment players within the courts. So that was just a stud studdy that i had never thought about how to would influence the other people on the panels and it was something that i thought the lawyers here might care about too. Sharon i think the only thing that i would add, as dry with all of that, is its important and i agree with all of that, its important in and of itself to make sure were having this conversation about who it is who will be there making these fundamentally important decisions that in some cases are about separating families, either through the criminal Justice System or the immigration system, you know, thinking about the power of these positions. And what does it mean to reconsolidate that power back in the hands of a narrow, select group of straight, white men. But i also think its important for us to have that extra layer of conversation of what kind of straight white men are we seeing . Were seeing far. Were seeing individuals who are comfortable defending the klan. The kind of people we are seeing is that extra like, on top of the troubling nature of the lack of diversity, fat fact that we are on top of that the fact that we are on top of that seeing individuals drawn from such extreme viewpoints and organizations, i think further undermines individuals confidence. In the same way you could potentialfully theory have a nonracist allwhite police force, but the chances of people actually feeling as though that is a police force that is working with the community and not targeting the community, is obviously going to be undermined if the police force does not look like the community that they are serving. Theres no reason why that calculus is any different. In fact, i think the stakes are even higher when you think about the unilateral authority that many of these federal judges exercise every day. Kristine one more point on diversity. The senate Judiciary Committee, many of us remember back in 1991 when Clarence Thomas was having his hearings and it was all white men on the senate Judiciary Committee. It was really interesting this week to see how that changed. On wednesday you had an appellate judge being questioned about several Sexual Harassment cases and you had female senators questioning this judge about why wasnt this outrageous behavior, why wasnt this illegal . Why did you not find this clearly troubling conduct to be Sexual Harassment . And it was such an interesting dramatic moment because you had female senator after female senator asking this type of question of a male judge who has been serving for a long time. Hes up for elevation. But it just the dynamic there compared to 1991, when they were questioning anita hill, was stark. Someone did a side by side of those two, would you see that at least in the senate, weve come a long way. But what it also reminds you of is youre still talking about, you know, a white male judge and he had his prism through which he was viewing these Sexual Harassment cases. Kristen then too, the point, the other Game Changing development this week was the appointments of senators booker andujars i to the senate Judiciary Committee and harris to the Senate Judiciary which is the committee taxed with initially investigate and investigate properly all of these judicial nominees that are being put forward. I think its important that we have diversity at every level of our government and really pleased that weve now gone from one africanamerican having ever served on this committee in its more than 200year history, to three this week. With the appointments of booker andujars i and harris. And well be looking to them to play a Critical Role in lifting up issues of race and civil rights as we move forward. But let me come back and just add a personal point to the debate, the discussion were having right now. An africanamerican woman, as a mother of a 13yearold black boy, you know, there is something troubling with what were seeing with this administration when it comes to racial diversity. And their inclination to, without hesitation, put forth white men for judgeships, for u. S. Attorney positions, for critical positions across the administration. It sends a really dangerous message, i think, to children of lor, to minority communities generally, about their life aspirations. Jen what is the message . Kristen that they are not qualified. That they cant ever make the cut. That they can never be worthy of serving in Important Roles like a justice on a court or becoming a u. S. Attorney. And we need, americans deserve a government, i think, that send as different message, that sends a message of inclusion, that sends a message that anyone can have access to opportunity in our country and in so many ways this administration is turning the clock back. Sharon we had another explicit example of it this week where we had the nomination of an individual for a Federal District court judgeship, who made the argument that a gay judge should have to reveal and basically recuse himself from hearing a civil rights case involving Lgbt Community. And i think that its important to sort of put that in context. For a trump president who feels as though he can disparage a Mexican American judge and say hes unworthy, i mean, maybe we shouldnt be surprised. But i would like to think that we are still in a place where we are shocked by the notion that someone would actually sort of put forth an argument suggesting that an aspect of their identity makes them biased. Which inherently means that only white men can be fair and everyone else is unfair or unbiased or unworthy of these positions. So its not only sort of the signaling of what it means in terms of professional aspirations, but also were seeing the flip side of that as well. Where the idea that other people bringing their perspective, that is bias that we need to protect ourselves from as opposed to being a really important perspective that must be part of our judicial system in order for it to have any credibility. Jen do you know of any early 40something graying lesbian judicial nominees . [laughter] you did not look at me. Ok. So lets talk about some of trumps specific judicial nominees. Theres been a lot of talk about how some of them are particularly colorful for worryiesome ordaining rouse. Im curious, who do each of you think is trumps most one of trumps most dangerous or bizarre judicial nominees. And im going to go first. Because i have my choice already. Brett tally is, was a District Court nominee. 36 years old. Never tried a case. He did not tell the senate that his wife was married to the white house chief of staff. Who oversees the president s judicial nominations. And he also writes horror novels on the side and he used to be a par normal activity investigator. This was a nominee for a District Court seat. He withdrew his name in embarrassment because of all the reasons. He still serves at the Justice Department. Jen he does. Vetting other judicial nominees. But at least there was some kind of check here where even someone who met although credentials or had all those qualities, i mean, this guy made it to a hearing. Didnt he . Did he ever have his hearing . He did. So this is the caliber of someone who made all the way to a senate Judiciary Committee confirmation hearing. And had to bow out in embarrassment for many of the reasons i said. Is there someone who stands out to you where youve been of the mix where youre like, this person is particularly insane ordaining rouse for the greater good . Kristen lets be honest. We know that there are more Matthew Petersons out there and jen can you tell people who Matthew Peterson is . Kristen hes the one whose nomination went up in flames when senator whitehouse from louisiana, a republican, sorry, senator kennedy, made clear that this was somebody who didnt know about the federal rules of evidence. He hadnt tried cases, he hadnt really conducted depositions. He hadnt had the kind of basic legal experience that you tend to see from otherwise qualified nominees who are put forth. It almost seemed accidental that he was exposed. It really speaks to the fact that this is a senate process that has really just been railroading nominees through at a lightning fast pace and not taking the time to properly examine these nominees records. So there are more petersons out there and i think its really important that the senate slow down. That they stop attempting to push forth several Circuit Court nominees and one day, which is not something weve ever historically seen, and really take time to comb through and figure out who these people are. Figure out whether theyve been honest and fully transparent in the questionnaires that they put forward. Weve seen nominee after nominee who has failed to make disclosures like tally. So i hope that the senate can smoke out and identify the other petersons that have been put forth by trump. But the one nominee who i would underscore as particularly dangerous, and he was renominated by trump last week, is thomas farr. Thomas farr is somebody who has been nominated for a vacant seat in North Carolina for the Eastern District of North Carolina. This is a district that is roughly 30 africanamerican and theyve never had an africanamerican judge confirmed to sit in this court in its more than 140plusyear history. During obamas tenure, there were two africanamerican women who were put forward. A former prosecutor, and a former state Supreme Court judge, jennifer may parker, and Patricia Timmons goodson. And they have now been replaced by the likes of thomas farr. Thomas farr is somebody who really has dedicated his career to defending and promoting Voter Suppression in the state of North Carolina. He was the judge who defended the states monster Voter Suppression law that the court of apeels found to discriminate against minority voters with almost surgical precision. Hes defended the state in racial jerrymandering cases, on the wrong side. Hes somebody who has defended an employer who said that women with children didnt have a place in the workplace. We at the Lawyers Committee litigated a case against thomas a car case involving dealership that discriminated against africanamericans. At every stage of thomas farrs career, he has been someone who has been deeply opposed to civil rights. But when it comes to Voting Rights in particular, the level of hostility and recalcitrant ecals trance has been recalcitrance has been especially pronounced. Jen do you want to mention his relationship with jesse helms . Kristen right. He was lawyer for jesse helms. And represented helms at a moment where the campaign was accused of having engaged in voter intimidation. Against africanamericans. And there were some questions about whether he was truthful about his ties to the campaign, when he first came before the senate Judiciary Committee. So for so many reasons i think its important that the senate slow down, carefully review this nominee. Hes somebody who is opposed by many people in the civil rights community, who care about the right to vote. Hes somebody who i do not believe would be fair and impartial if he is appointed ultimately to the bench. I think hes somebody who would work decidedly to overturn cases in the Voting Rights space. So, thomas farr, someone who is a none mouse with Voter Suppression, i would put forth as the most dangerous nominee out there today. Kristine i second kristen. Jen no, you have to pick a different one. Kristine im just saying you picked tally because hes weird. I totally agree with kristen. This is a perfect example of chosen because it was a feature. Not a bug. Right . So this isnt something they werent aware of. This is how this nominee earned the nomination in this state. And for anyone who cares about democracy, anyone who cares about Voter Suppression, this is the number one. There really isnt theres a lot of bias, theres a lot of problematic things about many other nominees. But he stands alone, i think, in this really troubling Voter Suppression history, plus regency. Not only the postcards and potentially misleading the committee when questioned about his involvement in the jesse helms jen when you say postcards, just to clarify people who may not know. Jesse Helms Campaign sent out 100,000 postcards to specifically to black communities, if ive got this right, it was saying, that the election was saying it was a different day . It said false information about when the election was and warned that they could be punished for voter fraud if you dont vote on the right day. This happened. 100,000 postcards. Kristen and its a for thisious case. He was asked directly under oath if he was involved in it. Kristine unfortunately it wasnt questioned as extensively as peterson was. So there are several members who are new members. They have not had a chance to question this nominee. This is an example of a nominee who may have misled the committee. Had something very troubling in his background that since his hearing people have come out and said, he was involved. I remember. And we now have two new members who, you know, should have a right to question thomas farr in a new hearing. So, its hard, i completely agree with chris ten. Its hard to pick kristen. Its hard to pick another. Sharon i have one. I would say cal duncan. In some ways, hes been not named for the fifth circuit, is this trifecta. Hes a poopoo platter. Hes absolutely been sitting shoulder to shoulder with the folks in North Carolina jen what . Sharon he has a horrific record with respect to Voting Rights. And has stood shoulder to shoulder with many of the folks in North Carolina who have essentially been trying to disenfranchise africanamericans. Hes also made had his personal mission in his personal mission in life to denigrate our families, to target transgender family and has been singlehandedly pushing campaigns against students like gavin grim who are just trying to live out their life and go to the bathroom in high school in peace. But hes also the mastermind behind hobby lobby and the religious exemptions that we are seeing in terms of this idea that religious people have a license to discriminate if you are not consistent with their world vufmente and of course the hobby lobby decision was particularly troublesome because in that case it was a forprofit employer whose religious beliefs, can you even say who the religious beliefs of the forprofit entity, this craft store, was going to override the ability of a woman to use her employerprovided Health Insurance to access contraception. So he in many ways is it better or worse that he issues many bad things going for him, yet when you think about not only sort of the all of the base in which this individual sort of stands opposed to fundamental civil rights, but also the fact that hes the brain behind a lot of the their dwhrass have been percolating for the last 20 years. Its interesting because even his confirmation hearing, he believes this stuff so truly in his core, he couldnt even kind of eke out the we know this is what he and other individuals there is a snow flake where you cut it and five come out. The court of appeals has the right to affect the lives of hundreds of lgbt people. Mississippi, you have the state sanctioning antilgbt views. You have someone on the court who is opposed to lgbt quality equality under the law. He ist is horrifying. He is the public face of vote suppression. But cal duncan is the face of these other forces we have been fighting in the trump era. Lets talk about their centra l role in evaluating federal judicial nominees. Over 1700evaluated nominees. It is rare when they decide someone is unanimously unqualified to be a judge. There is a panel of 15 people who thoroughly evaluating this nominee. They do really exhaustive work. One year in, trump has a total of four judicial nominees rated unqualified. One who got the rating was e. Ephen crabb he was rated unqualified unanimously for bias. It is a temperament. I have not seen that. Aually the ada rating is minimal qualification. It does not look at your ideology or your adherence to president s. This is a writer and unusual rating. They interviewed people locally here in the reputation of the nominee. Reluctant toe are say these kinds of things because of the odd that they are getting appointed is high. The ada interviewed over 180 reported thaty some had unusual fear of repercussions even though they were anonymous. They were still terrified that somehow it would get back to them that it was this person saying not great things. And he was confirmed. What does that tell you about the system . They attacked the ada as an institution. They are happy to use it as a credential when it supports them but this was the first time also they did not let the ba testified. E a usually they testify at the same hearing so they can ask what people did you interview. This was a stunning moment. It is not that they had trolleys. Trial experience for 12 trial had no experience for 12 years. That was said is something they would take under consideration. It is t nk that the fact that they found unqualified for bias should have s pause. E senator the key bias was the inability to give impartial justice to lgbt americans. The only way in which we are going to change this dynamic is to have the same level of outrage around an individual identified as incapable of being understanding with we seer litigation this willingness to pivot and move to an attack on the ada. Bias a signaling that against Lgbt Community members of my bother anybody. That is why we have doubled down on our work in this areas. Walks towards greater quality has been informed by the opportunity to make our case in court and have beividuals like grasz not bench. He it is important to remember that the American Bar Association has been around for a long time. It is a fully Nonpartisan Organization and the ratings they have been producing on judges have been ratings that judges have relied on for decades. George w. Bush is one judge who was an exception to that. Who is an administration changing the rules of the game. They are coming forward with this dangerous nomination. It is shameful that the administration it would no longer take into consideration the ratings that have been historically provided by the ab a. Rated over 2000 nominees and only 12 were unqualified. Administrations included there are charles goodwin. It was cited work habits as the reason. And probably peters was de and holly peters was a nominated in kansas and disqualified for her from the lack of trial experience. It was almost accidental that l hew peterson got s; slowed down and they were given time to evaluate these nominations. Trump hasg of norms, shown that when courts rule will oftenm, he watch out against the court and the judicial system itself. Itsaid on the daca ruling, just shows everyone how broken and unfair our court system is is when the Opposing Side always wins before being sent to higher courts. This is the president of the united they criticizing the federal court system. Have you ever heard about a president of the United States doing that . No. Would affect of this have on regular people understanding of how courts work, do people believe, we cannot trust our court system . That is his hope. I think this president is holding into question any institution that may make him unaccountable. There is a lot of trying to decrease interest in anything that will hold him accountable and i think the courts are a big part of that. He has lost after each muslim ban and each time he insulted. He court we saw that during the campaign. He attacks during judge curiels for his impartiality. He said he could not be impartial when this is a man who risked his life in defense of this country and protecting law enforcement. It is not clear much outcry from justice. I thought you might hear the chief justice Say Something or you might hear someone talk about how damaging that could be to our whole justice is. But instead he has done it over and over again. That was not an isolated incident. I think he is going to talk about the grand jury and whatever judge is involved in whatever case is involving the russian investigation. It is damaging to the confidence. N the system i sometimes refer to constitutional crisis for the moment we are in. Theo not have a respect for separate branch of government that is the judiciary. It is supposed to provide checks and balances. And whether it is appointing to stacked nominees the court or undermining the decisions made by sitting judges, it is troubling and demonstrates the lack of respect for the judiciary at the end of the day. As a Justice Department withr until very recently the definition of justice changed under my feet and i had to ask from elsewhere i used to be able to speak about Public Service in the federal wonderful,as a empowering thing and im worried about the men and women who continue to try to perform Public Service in the face of these attacks. Think about the young people who think they are never someone who could be a judge. You think, who wants to be someone who is part of a government that speaks this way about the courts. And that there is no meaningful push back or isolating of the president when he makes these meaningful push back makes you realizeents, that that is the kind of thing we will have to spend time and energy feeling that very deep wound. These are not institutions that seem to matter to these president this president. But these are institutions that we in this room feel very strongly about. It is important for us to stay engaged in this moment and keep trying to call out the shocking and offensive and unamerican nature of the comments we are hearing and understand the magnitude of the work we will have to do to repair the damage. At someone who covers judicial nominations, i have always been more surprised by the way Senate Republicans have along withand gone whatever. Judges,e talking about and moveto go along through nominees that are not qualified. What do you make of that . It is likely it is like there is a machine in place to get nominees through without any criticism. Do you feel more surprised by that . I do. You see Mitch Mcconnell on tv saying one thing but there is no critical thought or analysis of why a certain nominee to be troubling from a nonpartisan standpoint. You are living in an era of perpartisanship right now. That isa congress deeply divided. It is incredibly difficult to find moment when congress can move forward and find common points across the aisle on burning issues like Immigration Reform and what we do with hundreds of thousands of Daca Recipients that are in a state of limbo. It is not just judges. In 70 areas it is a political stalemate in so many areas, there is a political stalemate and i am not sure i would change that. Outeed congress to figure how to Work Together in a bipartisan way and we need a senate that will step up and carry out its constitutional responsibility. There have been glimmers of hope with Matthew Peterson and the senator from colorado has said he will not move forward on any nominations because of jeff marijuana,ance on which is a reversal of the commitment this Administration Made to him to respect his states stance on marijuana use. I am deeply optimistic. Fredwant to go back to talleys nominations. What we found out in days subsequent is senator shelby had withdrawn his of work. Withdrawn his support. Two republican s totors, they hold the key whether a nominee gets vetted. What senator kennedy showed the world was this questioning of peterson. That is what independence looks like. That is what a real lawyer should do in a hearing when he suspects someone is willfully unqualified. I would like to see that video played out and looking at bias asa a qualification. I hope we talk about qualifications that include a history of bias. Senator kennedy got so much from that viral video that there is a glimmer of hope that it could get others to act more independently. The ratio in the senate got tighter after the alabama election. Toonly takes two republicans get a nominee. There are independentminded republican senators. Gets paidre attention to these controversial records. There was press report after press report. Was distortion of his wifes employment. The Senate Questionnaire is filed under oath. It says identify all family members that could pose a conflict of interest. He did not identify his wife, who clearly posed a conflict of interest. Hisid not disclose all of anonymous blogging, including defending the kkk. This is a man who is advising Senate Nominees on how to fill out their Senate Questionnaires. Tell about all his anonymous blogs. My glass halffull moments about markreports norris who is a derelict racist isvirulent racist nominee not quitting his day job. Until the passage of the tax bill, the only thing that Senate Republicans were able to get done, they for all the levers of power and hear the clock ticking in the background that they may have to hand the delivery of everything. To hand overave the levers soon. We may see a different dynamic. One of the things that are amazing about senator harris being on that committee if she can break down a witness. To the extent we have the creator of this. Senator grassley tried to byvent this from happening stacking multiple hearings, but that we have strong voices in the senate and advocates in the will. O d i do think we see the worst of the worst pulled back. Two of the nominees we identified as having terrible records theseart to see nominees and not renominated. You see an indication that losing on this is not the is not worth the political cost. Which republicans are you looking at now as the key republican who may be more reasonable . Senator kennedy is the only republican whp voted against the trump judicial nominee. Kaplan toted against the d. C. Circuit judge are you he is someone who had been with the president through transition and worked on every legal controversy of this president. He was confirmed over the opposition of senator kennedy. Mccainnote that senator voted against a nominee of President Trump because of his views on torture. Excusked with bradbury to e torture during the Bush Administration. We will see if senator mccain feels the same about the other nominee. Those are two that already showed signs. Susan collins voted against pr a controversial Bush Administration judge who was on the shortlist for the Supreme Court. That was another person willing besay that person should not confirmed. Jen it will be interesting in this next year to see a willingness to distance oneself from the president. There are different ways in which republicans exert their influence. The most public and inyourface review of the president is when someone is actually forced to a vote. There are other ways that we will see republicans exercising leadership in the way that they anynot committing to leadership. If it means having that conversation with the leader saying please do not let me vote on someone this nuts. Sharon i do think that while every nominee we are able to defeat because of their lack of qualifications os is important, it is going to be extremely important for the health of this nation to actually have some of those bold acts of courage and those clear statement that there is a level of integrity that needs to be present for nominees during these lifetime appointments. I hope we will see more public affirmations of what it is judicial nominees should represent rather than behind the scenes. Theses in which nominees have been withdrawn. I hope we talk about the role of the public place. It has been a sleeper issue in this administration. There has not been enough focus of the crisis underway when it comes to these nominees. It is important that people Pay Attention to who are the lawyers in their respective states who are being put forward for these nominations. Nomineesee there is a that is unqualified, i dont think they should sit back as if it is a game of chess and hope there is a senator who wakes up on the right side of the bed. It is critical to Pay Attention to these radical nominees. If you could each spend 10 minutes alone with the white house councilman who oversees the judicial nominations and you could make one request of him about a real change he could make in the way they do judicial nominations given this is a Republican White House and they will put forth conservatives. If you have some chance shaping what is going on, what would your one request be . I would say come on, you cannot find one africanamerican conservative. You cannot find one Condoleezza Rice or colin powell. You cannot find one . Jen they did find one magistrate out of alabama. Sharon this kristine this virtual lack of gender diversity is abhorrent and i would want to have a hard to part with him and say you have to do better. Sten jen i think i would encourage him to consult with other senators. Of the brakesion the senate can apply involves prenomination of home state senators. I hope they understand how important this for your home state senator to have a say. I do not think this white House Counsel has any concept of why that is a good idea. Why the home state senator should have any say at all. Why there should be a process aat weeds out people who have extreme record of bias and you make sure they put a quote on diversity. Circuit, we in that have terrible diversity. I know many in this room have been trying to work on that because there is such a lack of diversity in our circuit and other circuits too. That could be solved if there was more consultation with the local senator of where the seat is when the judges nominated. Sharon building on kristines point, i know you are busy, but we can help you out. Please do not take every name you get from mike pence. It is not worth it to take on the burden of these voices in the wilderness that are space like the lgbt it is still 1950. They make my job harder. Youre cutting of these wackos who are so out of sync with who we are as a nation. This toyou doing yourself and the country . I think christine is right. It is offensive to suggest there are not good solid conservative men and women in these states. I clerk for a republican judge. There is a core group of values that individuals can be liberal or conservative and still hold because of the rule of law. Making sure there is access to courts. If you need help, the Heritage Foundation is not the best outsourcing opportunity. There are other people who can make your life easier. Whoever it is in that role, there is a better pool of people to choose from who are still consistent with your values. We recognize elections have consequences and no one is nomination of thurgood marshall, no matter how much we make long for him. But these nominations are so spiteful and it is contributing to a denigration of an institution that we need to be a healthy one. Day q a. O qa first question, what do we do . You can call this number and express your outrage to your about the radical nominees being put forth from your state. Should payeryone attention to the vacancies in your state. There are judicial emergencies. It is important to register your voice of opposition. Properly review these people. They are going to be there for life. The only way to remove them is through impeachment and that is unlikely to happen. Kristen i totally agree with that. I totally agree with that. If youre in washington dc, you can show up at the hearings. It is open to the public. The most important thing is to talk to other people and get activated on the senate. Focus on the senate. They are supposed to be the independent check. Is supposed to act as an independent check. Sometimes we do have an enthusiasm gap. Getting members and to understand this is an important issue to you is half the battle. They need to hear the independent of the court is important and they only hear it from lawyers. Sharon i agree with all that. 70 different ways that individuals can exercise so many different ways and that individuals can express their voice. Issueas been a sleeper and it is extremely important to have this become part of the public conversation of what trump is doing to this country. These are individuals that will thinking about our rights and access to justice for 40 or 30 years. Our grandchildren are looking to us for justice and there should be no tools unused. For states with the democratic senators, have you see the bluefly process blue flip process . It is the single thing that affects the quality of nominees. Piece ofis a blue paper and it is sent to the two home state senators. Those two senators decide and sign off either approve or disapprove. Whether they approve or not determined whether they would move forth. There have been exceptions. Different chairman have had different interpretations. Role. Nate has a two prong it is supposed to protect the home state senators. It has been abused. Im not saying the blue slip solves all problems. Northern carolina is an example of republicans are using the openslip to keep that seat for a decade. Having that role make sure there of governments that have a check on the third. Why chairman grassley would want that to happen given that he has served in the institution for so long, i think it is a function of longterm thinking. Any senator should understand that eroding the bluechip bl erode theirr will power. It is shortterm thinking but i think longterm it is going to reduce the check on the executive. Sharon when we see an 11th kristen when we see an 11th hour attempt to change the slip it hasue been a check on radical nominees in the past. It is dangerous that we are seeing a senate that is ready to walk away from the ratings process and walk away from the blue slip tradition and i think it should be something that makes all of us scared about what is going on. Ngtermn grassley made lo damage for this committee when he did that in november. Kristen in the next couple of weeks we will realize whether it is a pattern or a blip. They are not taking the questioning seriously. Baralked about thomas misusing the committee. If that is not taken seriously that an under as the nominee is not answering questions an under oath nominee is not answering questions undermines the whole process. Why fill out the Senate Questionnaire if you get away will it if you do not . It is going to diminish the power of this committee and the whole senate. Sharon it says something about what this persons capacity would be in a courtroom. Kristen you expect judges and waive thewave truthfulness of judges and juries. Have littleson to confidence that that kind of person can carry out their duties. Do you see the ideological tilt of nominees extending to judges of the third court circut . Sharon we have already seen trump creating a pipeline to the court of federal claims by becauseng two who only they are in a Specialized Court did not have to go through the ada qualification rating. It would have been interesting to see what that qualification would have been. The extent weo have seen the court of federal claims as being a court where these extremely ideological nominees have been put forth, it has us believe that there is no part of the court that will be immune to these kind of ideological questions. Federal district and a court and Circuit Court is where we see a concerted focus on putting forward these radical nominees. Cases that move through the federal court system are cases that are in the District Court and Circuit Court. That will be the real place of fortis. I think that is absolutely right. Kristen that will be the main point of focus. We will continue to see nominations that will be put forth. Made and thenre do not push through the system quickly, we see kind of a trend. Any more questions . I see a woman with a card. When that casedo that is made with bias comes up . He peopleas one of te who was known as the deviating blogger. Much that a recusal motion might be coming for them. I can imagine a lot of recusal motions in the future for a lot of the nominations that get conferred. Many of trumps nominees are bloggers. We have justice will let of justice wilett of texas. Kristen i feel like we have not much. Hat question this being such an unprecedented era where we are seeing radical, truly bias individuals getting these lifetime appointments, we may see lawyers who say my job is to ride the most zealous representation on the point of my client. If they feel like they are assigned to a judge where bias is clear from day one, we might see more recusal motions. To when wengs back t the chilling nature of what happened. Being able to offer an unbiased and nomination or Stephen Grasz for student grasz stephen thez, the recusal motion is antithesis of that. You are in front of a judge saying this person cannot provide a fair hearing for your client. High that ire so have had conversations with client about how it is worth it to do it or not. The entire system depends on good faith. When you see individuals comfortable lying and misleading, what does it tell you about the good faith presumptions that have animated the system to date and whether those will continue to hold. It will be interesting and we may very well see some of these motions. Anyone who is taking comfort in the fact that these nominees can be confirmed and do not worry, if they are biased, recusal motions will make sure of a fair hearing, they should recuse themselves from that comfort. Is it a federal crime when judicial candidates do not honestly answer their questionnaires . There probably is that cautionary language on there but stepped up tone enforce. How important is that diversity in terms of attending university or working in the private sector . Have effect compared to that is an interesting question. Is it a question about judges with different educational backgrounds . Race, sexualout orientation and gender identity, why do we not talk about the fact that almost all highlevel judges have degrees from very university and many spend so much of their careers in forprofit law firms as opposed to the Public Interest organizations . Diversity of perspective is a key issue many people were fighting for in the diversity bucket in the last administration. Making sure there were plaintiff lawyers and not just people who went to harvard and yell being considered for the and yale being considered for the Supreme Court. There is a class issue you are catching on. But we are all saying is diversity on all these levels matters. Public confidence and the ability of a judge to see things impartially and make sure judges are not stacked in one exact way against you. It is an important point that people are not talking about in terms of public is diffusion 0public Public Institutions versus private education. This is almost a topic for another day, this question of whether there is a singular, elitist path one has to follow to secure a position like a judgeship. During the obama years we saw a mix of people with very professional background who became judges. The public defender and federal prosecutor would be one example and here i hearken back to decades ago two underscore how right now we are turning the clock back in terms of progress. Thurgood marshall was a civil rights lawyer who became a federal judge. I could not imagine a moment now where we would see this president elevate someone who committed their career, their professional career to protecting the Public Interest. Appointing a civil rights lawyer to a federal court is not something you would ever see from this president. Why . They might consider themselves civil rights lawyers. What is interesting is the mission evidence and when you talk about tile. Can, for can, clearlyyle dun on a mission. Not fulfill and human rights for all of us but on not for civil and human rights for all of us but an ideological mission. And with that we are done. Thank you all for being here. You have been absolutely wonderful and for everyone listening, they have given us a lot to think about at a lot of different opportunities for us to be talking to friends, family, coworkers and senators. I want to let you know that we have a love our constitution initiative. Some of us will be sending valentine days with your constitution. You can walk your friends and family and senators through this process and talk about things getting you anxiety and the opportunities people can speak on how important the courts are and judges and how important it is that we have a process they respect that and our values. Thank you for being here this evening. Thank you to our panelists. [applause] there are still facts out there, said graseck food snacks out there, so grab some food on your way out. Thank you so much. [speaking simultaneously] [indistinct conversation] announcer this week, the oralme court will hear arguments in the case of voting the philipted versus randolph institute. Listen with the free cspan radio app and you can follow the courts Upcoming Schedule of oral arguments at cspan. Org Supreme Court. You can search all the judgesappearances on cspan and with cspan. Org Supreme Court you can watch all the oral arguments we have