The Federalist Society’s Leonard Leo joined me this morning:
HH: Joined now by Leonard Leo of the Federalist Society, although I believe he is on leave. Leonard, welcome back. Are you on leave from the Federalist Society?
LL: Yes, until the confirmation process is over, which will be Friday.
HH: So are you just staying through the end of the Gorsuch confirmation?
LL: Yeah, and then I’ll be back to the Society. That’s exactly right.
HH: All right, talk to me a little bit first about Neil Gorsuch. Any doubt in your mind that it is over by Friday?
LL: Over by Friday. Senator McConnell has made that very clear, and Republicans are ready to get this done.
HH: It will…
LL: It’s been a great process.
HH: It will report out of Judiciary today, and then it will go to the floor for a cloture motion, which will fail, at which point the Reid Rule will be invoked, and debate will begin. How does the Leader limit debate, then, Leonard?
LL: Basically, the way it works is when you have the cloture petition, you know, you’re going to get 30 hours of debate under the rules, so they’ll get 30 hours to talk about the nomination. And then if cloture fails, in other words, you need 60 votes to stop a filibuster. If Republicans don’t get the 60 votes, then Senator McConnell basically does what’s called appealing the rule of the chair. There’s a vote, and if there’s 51 votes, we can move to a final vote for confirmation.
HH: Do they have any period of time certain after that, the Reid Rule is invoked and the rules are changed to make the Supreme Court like all other lifetime federal judges, as Harry Reid did in 2013? Do they, can they take the floor and stand there as long as they want?
LL: No. Once the Reid precedent is invoked, it’s a very quick process. It’s under 45 minutes. It’s basically another roll call vote, and that’s it.
HH: Perfect. So that’s Friday?
LL: So it’s…
HH: That’s terrific, and then he’ll be able to sit, then, for the final session of the year?
LL: Yes, he probably gets sworn in over that weekend, so he can get to his chambers and get right to work on Monday. And then a week from that Monday would be his first sitting.
HH: That’s terrific. Now let me ask you, Leonard, every day I go and I check JudicialNominations.org, every day, and I’m always sad. There’s only one court of appeals nominee, Amul Thapar, although he’s a great nominee for the 6th Circuit. Why no one else, Leonard Leo?
LL: Well, look, you know, you’re right. There are a lot of vacancies. There are 134 right now, and that’ll only continue to increase over the next several months. Even though there hasn’t been anything issued, yet, there’s very good indications that the administration’s been working hard on this, doing interviews, getting ready to announce lots of different names. You know, it takes a little time, because the FBI can really only process a dozen or so at any given moment. And of course, everyone’s been pretty busy just trying to respond to inquiries from Capitol Hill on the Gorsuch nomination. But I would expect you’re going to see the first nice tranche of nominees certainly this month. And I think that’s going to be important, because it’ll begin the whole process for court of appeals nominations. And you know, I think we could possibly see a lot of those names put forward by the end of June or July.
HH: There are 18 Circuit Court vacancies right now, and I have in front of me President Trump’s list of 21 potential Supreme Court nominees, and I see on there Keith Blackwell, who’s an associate justice of the Supreme Court of Georgia, Charles Canady, who is an associate justice of the Supreme Court of Florida. We’ve got Allison Eid, who’s on the Colorado Supreme Court. We’ve got, of course, the wonderful Justice Willett on the Texas Supreme Court. You’ve got Thomas Lee on the Utah Supreme Court. Isn’t it an automatic that if, you’ve got Ed Mansfield on the Iowa Supreme Court. Ed’s an old friend of mine back to Harvard days. You’ve got David Stras, who’s 42, on the Minnesota Supreme Court. Isn’t it automatic, Leonard, that a state supreme court justice who is on the short list for the Supreme Court would be nominated to the Circuit Court of the federal system?
LL: I think there’s very serious contenders for any vacancy on the Circuit Court, and it wouldn’t surprise me if you saw a handful of those people nominated sometime this spring for the positions that are open. There is a position open, for example, in Colorado when Judge Gorsuch is confirmed. There’s a position open in Minnesota on the 8th Circuit, and I think there are a couple of others.
HH: And the 5th Circuit, Justice Willett is clearly under consideration in the 5th Circuit. They’ve got an opening down there.
LL: That’s right, forgive me. I forgot about that one. There are actually two openings in Texas as well. That’s right.
HH: Tell us about Amul Thapar and why he went first. And are you involved at all on the appeals court judges and helping on that?
LL: Absolutely. I mean, we’ve been working on that as well. And it’s been a very, I think, fruitful process. Amul Thapar, as you know, was on the list of 21 that President Trump put out during the campaign. He’s been a very capable, smart U.S. district court judge. Before that, he was a federal prosecutor. He’s extremely smart. And he’s somebody who Senator McConnell recommended for being considered for a higher judgeship some months back with President, with then-Candidate Trump, Hugh. And I’ve known him for a number of years, and I find him to be a sharp intellect, but he’s got an interesting background in the sense that he also has a wealth of trial court experience. And that’s something that’s often lacking in appellate judges, Hugh, and so it’s valuable to have that from time to time.
HH: Now you know I have lobbied you before on behalf of Carol Platt Liebau, and that’s because I want the 2nd Circuit to have a managing editor of the Harvard Law Review on it. But I do note that in the original list of 21, there were more men than women, and this will become an issue. When you have been helping vet, is that a concern for diversity within the vetting team when it comes to the federal appeals court?
LL: You know, there are a lot of really capable women. And I think you’re going to see a number of them nominated to the federal bench. It’s important, and there are just a number of really extraordinary women who aren’t only on state supreme courts and lower courts, but who are teaching in law schools, who have practiced law, who are active in the public interest legal movement, people like Carol, as you point out, actually, Hugh. And I think you’re going to see quite a number of those people either elevated or nominated.
HH: Let me ask you a little bit about the rules in the Senate, because they may have changed since I last did this in the 80s. On the Circuit Courts, the president usually went his own way. He might take some advice from Texas senators on a Texas vacancy, etc, but it was really his own play. But on the district court, senators had a huge role. Is that still the rule of the game, the rules of the road when it comes to judicial nominations, Leonard Leo?
LL: Yeah, more or less. I mean, on the courts of appeal, the president really has the primary prerogative. He talks to the senators, and you know, he’ll get some advice from them. But at the end of the day, those are pretty much exclusively his picks, and I don’t see any change in that protocol. In terms of district courts, yes, Hugh, for the most part, the senators do get a lot more leverage there. They tend to submit names to the White House, and then the White House vets those people. And you know, look, short of some serious, glaring problem, you know, usually somebody from that list will get picked. Now what’s interesting about this administration, though, is there have been some occasions where you know, the administration has ideas, also, and I see a lot of communication taking place between senators and the White House on nominations. So it wouldn’t surprise me if in a couple of instances, you know, the district court lists are expanded by suggestions that the White House may have. And there’s nothing wrong with that.
HH: Now Leonard Leo, I used to live in California, which always has two Democratic senators. And now I live in Virginia, which has two Democratic senators. So what is the rule going to be for district court nominees? And the result of that was under, and I love George W. Bush. Everyone knows I’m a great admirer of the President. But he had a terrible system for elevating district court judges, though we got a couple of good ones through, thank goodness. But they consulted a committee that had Democrats on it. I don’t go for that. I don’t understand that. Will President Trump indulge Democratic senators with their whims when it comes to district court judges?
LL: There hasn’t been any indication of that kind of capitulation to date.
HH: Oh, terrific.
LL: Yeah, and Hugh, as you point out, the so-called Parsky Commission in California was an unmitigated disaster. And I don’t know a single Republican who thinks it had any modicum of success. So it, so far, no one has recommended that kind of a process. And from everything that I’ve seen, this is an administration that understands that these judgeships are a president’s most important legacy, or among the most important legacies he has. And they’re not just going to hand that off to a bunch of people on some committee we don’t know.
HH: It just never made a lick…now we’ve got some good ones. Andy Gilford is a great judge, and he was appointed by George W. Bush. And he was a Republican, and he’s a great judge. But I do not understand, and I hope they do not have any committees like the Parsky Committee. That should be the predicate. If there isn’t a senator there, the president should just go find his biggest supporter, or he can ask me in Virginia or in California, and I’ll find him some judges. But how are they doing it, then, if they’re in a double Democrat senator state?
LL: Well, look, you know, it’s not hard to find people of distinction, you know, in the states. There are lots of lawyers you can consult. Sitting judges who have lawyers before them on a regular basis, sometimes, Hugh, like you mentioned, with the list of 21, there’s a judge sitting on a state court who could be elevated to a federal court. So there are lots of resources that you can consult – professors who teach at law school who have a bit of a paper trail. It’s not hard to find really high quality judges. These committees really aren’t search committees for quality. These committees tend to be political committees.
LL: You know, what former frat buddies they want to put on the court.
HH: And it’s not the way to do it. What about the blue slip process? Would you explain that for the Steelers fans and our audience very slowly and how that works?
LL: Oh, boy, that’s a mess, isn’t it? Look, what happens is anytime a judge is nominated, a senator has to return what’s called a blue slip in order for that nomination to go forward. Or at least that’s the folklore about it, right? And so the big question is always well, what happens if you nominate a, you’re a Republican administration like Trump’s, and you nominate somebody from a state with two Democrats in it, well, like California, right, Hugh?
LL: What happens if those two Democrat senators in California decline to return a blue slip? And I’ll tell you, that’s very much an open question. The conventional wisdom is that if both senators refuse to provide permission by giving their blue slips, that nominee doesn’t even get a hearing. That is not necessarily what should happen, however. There’s a very checkered history of how to treat the blue slip process. There have been some Senate Judiciary Committee chairmen who have viewed those blue slips as holy writ, and if they’re not in, there’s no hearing. There are other Senate Judiciary Committee chairmen, and old Democrat Chairman Pat Leahy is among them, who didn’t treat those blue slips as holy writ. He looked at them and said look, you know, there’s a presumption that you don’t go forward if the blue slips haven’t been returned, but it’s rebuttable if there are unreasonable grounds for not submitting a blue slip, if it has nothing to do with his qualifications or integrity. So we’ll see how it goes. It’s unclear where Chairman Grassley is on that right now. I haven’t had to confront it, yet.
HH: I hope he just blows it off. That is extra-Constitutional. That’s extra-Constitution. Leonard Leo, congratulations on all the work you’ve done for Judge Gorsuch, and you’re continuing to do on the appeals court, and I look forward to having you back when you’re back at the Federalist Society, and I hope you’re in there pitching for Carol. Thank you, Leonard.
End of interview.