United States: Outlook 2017: The New Administration and Changes in the Federal Judiciary (podcast)

Listen to this Q&A

What impact could the new Trump administration have on the federal judiciary, including the Supreme Court? Having previously served with the Office of the Solicitor General and as Special Assistant and Associate Counsel to President Obama, respectively, Doug Hallward-Driemeier and Justin Florence from Ropes & Gray's business and securities litigation practice offer their perspectives on what might lie ahead under the new administration. To learn more about potential regulatory and enforcement developments emanating from Washington, visit Capital Insights.


Interview Transcript:

I'm Justin Florence, counsel at Ropes & Gray, and today I am joined by Doug Hallward-Driemeier, who is chair of the firm's Appellate and Supreme Court practice. This is part of our Capital Insights series that examines issues and potential regulatory and enforcement changes emanating from Washington, D.C., as we transition to a new administration. In an earlier podcast Doug and I talked about how change can happen in Congress and the Executive branch, and today we are going to discuss the Federal Judiciary.

Doug: Thanks, Justin. This is such an important topic. The Justices and judges that are nominated by a president can outlast any president, often by decades, as do the decisions that those judges make from the bench. Now, Justin, you worked on the Senate Judiciary Committee, so perhaps a place to start is you walking us through the extent to which the president can, in fact, reshape the judiciary through the nomination process.

Justin: This president is going to have a tremendous opportunity to do that because of how many vacancies there are on the courts. The new president comes in, not just with the open Supreme Court seat, but in addition, there are 113 other judicial vacancies –17 seats on the federal courts of appeals, 88 federal district court seats, and that is more than twice as many vacancies as existed when President Obama took office in 2009, so there will be a great opportunity here

Doug: Now the rules for judicial nominations have changed since President Obama took office, and maybe you could say a little bit more about that?

Justin: Sure, and let's start with court of appeals and district court judges. Senators have traditionally had a lot of influence over what judges are nominated from their states, and that's likely to continue to some extent. That results from a policy that Senator Leahy, the former Chairman of the Judiciary Committee, had in place called the "blue slip" policy, where he would not allow nominees to move forward at all unless they had the support of both home state senators. What has changed dramatically is that a couple of years ago, the Democrats exercised the "nuclear option" to make it that the filibuster no longer applied to court of appeals and district court judges, and the result of that is instead of needing 60 votes to get a nominee through for those seats, only 50 votes are needed. So that will, although there could still be delay, and although home state senators will still have great influence, will generally speed up the pace at which President Trump can put new nominees on those seats.

Doug: Now, I noticed you did not mention the Supreme Court.

Justin: Right, so when Senate Democrats exercised the "nuclear option" they did not do so for Supreme Court, so that means there is still a filibuster available for Supreme Court nominees. What makes the situation interesting is that the parliamentary mechanism used for the "nuclear option" requires only 50 votes, and so even though there is a filibuster out there, whereby a Supreme Court nominee needs 60 votes to get through, at any moment, if Republicans have support of their caucus, they can use the "nuclear option" for Supreme Court nominees too, which takes only 50 votes, and so this creates an interesting game theory dynamic, especially for Democrats, where they will have to be very thoughtful about how aggressive to be in opposing an early Supreme Court nominee because if they do filibuster they have to consider the possibility of the "nuclear option" being used there and the filibuster being gone for the rest of the term, at least. Now, I'm curious, we've talked a bit about how new judges come on the courts. What changes do you think that will bring in cases and doctrines as we see a new judiciary seated?

Doug: Well, I think that it's hazardous to make too specific a prediction, but I think overarching the biggest point is that we won't see the change that we would have seen from a Justice Scalia to a Justice appointed by a Democratic president. For example, Judge Garland, who had been nominated by President Obama. There are several hot button issues that had we seen Justice Scalia replaced by a more liberal Justice might have shifted the balance of the Court. For example, the Citizens United decision, the ability of corporations to engage in unfettered political speech in influencing campaigns, might have well been an area of shift. Because Justice Scalia will now be replaced by President Trump, who has indicated he wants to appoint somebody in Justice Scalia's mold, we won't see that shift. But, that in some respects just maintains the status quo.

Justin: So even with a more conservative justice replacing Justice Scalia, are there areas where we may still see some changes?

Doug: I think there are. For example, one area where Justice Scalia voted with the more liberal justices sometimes was in the area of free speech under the First Amendment. Justice Scalia was a firm defender of the First Amendment; it's possible that his replacement would be more conservative, perhaps in the mold of a Justice Alito, who is less so, and that could tip the balance in some First Amendment cases. Also Justice Scalia was, because of his conservative judicial philosophy, deferential, relatively, to agencies if they were construing an ambiguous statute. Whereas, we've seen, actually from the Republican House, a bill recently to curtail that level of discretion to agency interpretation, so a new Justice who is more in that mold might indicate a shift in that doctrine as well. There are some areas, for example, there was a case that had been granted by the Supreme Court before Justice Scalia's death, considering whether unions could collect fees from non-members to support collective bargaining, and many thought that that policy might be ruled unconstitutional and then that case ended up in a 4-4 split. Well, with a new Justice, if that one Justice is in the mold of Justice Scalia, we might see finally that very major shift and change in the law happen. Of course, all of this is very speculative because Justices have lifetime appointments and very often they don't end up on the bench acting exactly as their appointing president expected they would.

Justin: Now, we've talked about a potential replacement for Justice Scalia. If another member of the Court, a Justice Ginsberg, or Breyer, or Kennedy were to leave and open up an additional vacancy for President Trump, what types of doctrinal changes might we see then?

Doug: Well, again, it's hazardous to speculate, but I do think there could be some significant shifts there. In some areas where Justice Kennedy has been the swing center Justice we could well see a change. For example, Justice Kennedy has avoided sort of very categorical rules on such areas as affirmative action, or even partisan gerrymandering, leaving open the possibility there might be a circumstance were he would iew | 3 find that unconstitutional. But, a more conservative Justice might well be in favor of more categorical rules in those areas.

Justin: And this is, of course, something where the dynamics of the confirmation process and the use of the filibuster may have a strong effect on what type of nominees we see down the road and what type of nominees can clear through the Senate, so it does all tie together.

Doug: We will all be watching attentively, but unfortunately, that's all the time we have now. Thank you, Justin, for joining me in this conversation. Thank you all for listening. Please visit our newly launched Capital Insights page at www.ropesgray.com for additional news and analysis about noteworthy enforcement and regulatory issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.