c-span.org/landmarkcases. tonight american history tv is live with a look at the veteran war's tet offensive with a discussion on the tet offensive. with remarks from author mark bouwden. we'll also hear from former stars and stripes photographer john olson whose photos taken during the battle make up a new exhibit at the nuwseum. hear there three vietnam veterans who fought in wai during the tet offensive. next week marks the 50th anniversary of the star of the vietnam war's tet offensive and tonight during american history tv prime time oral histories from west point graduates who served in the vietnam war. starts tonight at 8:30 eastern here on c-span3. now a discussion about how the trump administration chooses judicial nominations. the american constitution

society hosted this 90-minute event here in washington, d.c. >> welcome, and thank you all for joining us this evening for the conversation, the judicial nominations process, what's the future, or wtf? i'm lena zwarenstenyn. i have the distinct privilege of working on the very relevant and dynamic topic of judicial nominations and amplifying the importance of courts to the issues near and dear to all of us. acs believes the law should be enforced to improve the lives of all people. a non-profit and nonpartisan organization, acs works for positive change by shaping debate on the vitally important legal and constitutional issues and we have networks of lawyers, law students, judges and policymakers all across the country dedicated to those ideas. i encourage you to visit our website, acslaw.org, attend our

events, and get involved in our local and student lawyer chach s chapters all across the kun cou. for those in d.c., get in touch with our d.c. lawyer chapter. many of those lawyers 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 twitter. please follow us at@acs law and d.c. lawyer chapter @acs-dcchapter. they'll be live tweeting this event and we encourage you to join the d.c. chapter in using #judgeswtf and #acstalks and view photos of the event on the d.c. chapter's instagram page, @acs-dc. 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 issue of nominations. with leaders contributing to

research efforts. i'm also deeply grateful to the entire chapter, in particular susan wilker for hosting this exciting conversation this evening. a special thank you to kristine lucius 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 ebt enter our country, to clean water, to lgbtq rights. most attention has been focused on the supreme court, there are nearly 900 judges that serve on the u.s. district in circuit courts of appeals and they decide the vast majority of cases. it's also important to consider closely who's 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 has previously served on the 10th circuit court of appeals. we have a president who regularly denigrates the judiciary and individual judges and we have a senate majority leader and judiciary committee chair that are rushing their consideration of this president's nominees. right now, there are more than 150 current and known future 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 marrick garland for, they kept open lower court vacancies in hopes they could confirm nominees they were confident in to fulfill their agenda. recently, there have been proposals on calling on congress to dramatically expand the number of lifetime judgeships so

this administration could even fill more 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 obama's first year in office, the senate only confirmed 13 judges, 3 to the circuit courts. this administration has been aggressive in naming nominees, often without consultation from senators, bucking longstanding practice. they have been embarrassed by some of the simple tymptoms of rushed process having to reconsider moving forward, for example, with three incredibly troubling nominees. however, concerning trends we have seen in these nominees remain in some of the others. nominees, for example, who lack legal experience. lack experience in the jurisdiction which they've been nominated. come from strong ideological

backgrounds. have made deeply troubling public, sometimes anonymous statements. they may have not received a qualified reading from the aba standing committee on the federal judiciary or are not fully forthcoming in their questionnaire or 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 literal blue pieces of paper that signal to the senate judiciary committee chair that the senators from the state where that nominee would serve are supportive of that nomination. the longstanding practice has been that the senate judiciary committee chair would only proceed with that nomination if that nomination had the support of both of their home state senators. yet, just last month, the senate judiciary committee chair chuck grassley made the unfortunate decision that he will be the sole arbiter whether a nominee moves forward. here to talk about this and more is a panel of amazing women, working with them in many of our

other incredible partners, many of whom are in the room tonight, is a true honor. they are all relentless. fiercely smart, funny and true experts on this topic. to introduce them and this panel is jennifer, white house correspondent and congressional reporter for the "huffington post. one of the most astute reporters who's long covereded the judicial nominations process and seemingly really funny about devilling into a lot of the various aspects of this otherwise sometimes mundane process with incredible perspective. we're so thankful to jen and the panel for being here. thank you. >> wow. go on. no, really. come back. hi. welcome to judicial nominations wtf. make of that title what you will. i will introduce our panelists. seated next to me is kristen clarke, president and executive

director of the lawyers' committee for civil rights under law. sitting next to her is kristine lucius. and on the end is sharon mcgowan, director of strategy at lambda legal. so let's jump right in. between all of your backgrounds and your wealth of knowledge combined covering this -- the judicial branch, how would you sum up the last year in one word? in terms of trump's judicial nominations? one word. >> earth shattering. >> i guess that's one word. okay. >> is it hyphenated? >> it is hyphenated. >> i was going for parade of -- >> i gave you guys these questions in advance. one word. >> you can tell people who have tried to sort of get in the word limit, i'll put some hyphens in there. my one word, there are many other words, but the one word i

would use is revealing. >> oh. that's deep. so have you -- each of you can weigh in on this, have you been surprised at all by the last year and trump's style of nominating and rushing people to the process? and i guess by style i mean he's been very fast. he's been pretty sloppy. and his judicial picks have been heavily shaped by right-wing groups like the federalist society. is this what you expected, you know, a year or so ago? we'll start here. >> so, you know, as a civil rights lawyer, the courts matter. and i think that courts matter for all americans. the courts play an incredibly important role in american life. there tends to be a lot of focus on the united states supreme court, but the reality is that there are just a handful, a few dozen cases that get heard and resolved by the u.s. supreme court. there are tens of thousands of cases that move through the

federal district and federal circuit courts that touch every aspect of our lives, and i think that historically, we have seen presidents really respect the integrity of the courts and put forth nominees who sometimes invite debate, put forth nominees who sometimes, you know, are polarizing, but historically, we've seen presidents put forth nominees who can garner some degree of bipartisan support. and that hasn't been the case with president trump's nominees and i think that's because he has been so singularly focused on putting forth radical ideologues who fall far outside the legal mainstream. he's put forth people of localer be, as we saw with matthew peterson and he has been relentless in putting forward young white men for vacancies

that exist across our federal courts. i think that's a shame. white men make up about 31% of the u.s. population but have represented the lion's share, more than 80% of this president's nominations. i think that sends a really dangerous message to the african-americans, latinos, to women, to the lgbtq community. people who represent the highest levels of their legal profession and could ably occupy seats on these courts. so what we're seeing from president trump i think is markedly different than anything we've seen from a president in modern time. >> so is this what you expected headed into the trump administration? >> i knew things would be bad but i didn't think they'd be that extreme. that's what we've seen from this president. just nominees who are incredible

outliers who hold abhorrent views on civil rights issues, abhorrent views about lgbtq people. people who have dedicated their lives to opposing civil rights. i mean, these are the kind of people that he is focused on with laser precision on putting into these lifetime positions on our courts. >> jen, i would say that what -- it probably shouldn't surprise us that he's moved this quickly or that they're this extreme because during the campaign, when he was trying to convince republicans to choose him as their nominee, he used judges and judicial nominations as a way to prove his ideology and his -- that he was worthy of their -- of their support. and during that process, he bragged about and got applause lines on litmus tests about judges he would nominate if he

became president. and he also outsourced the selection process to two right-wing interest groups and what i think we've seen already is they are not very good at vetting or maybe they're 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 that we would have a litmus test on reproductive freedom and on guns. he bragged about it. he got applause lines about it. and he clearly indicated he was going to do this outsourcing that he has done. i don't think, though, when we saw that, we expected that there would be people blogging in defense of the kkk or that they would be so extremely hostile to lgbtq individuals. you know, i think that kristen's right, the courts matter enormously. i think we are surprised at how

bad, how biased, how hostile to civil rights they've been. i think we expected given the campaign promises that they would be extreme, but i'm not sure we expected the full dimensions of them. >> and i would just echo a lot of what kristine said, in many ways my choice of the one word, which was a one-word answer, gold star, thank you -- >> get all the points. >> -- in terms of revealing, i think in many ways the trump administration has revealed much about itself through the nomi e nominees that it has chosen and in many ways senate republicans have revealed much about themselves in how they have conducted themselves. i think, you know, i completely agree that many many people sort of had the narrative whether you believe it or not, they were willing to hold their nose and vote for trump because of the courts and to see what mitch mcconnell was willing to do and the norms he was willing to disregard with respect to judicial nominees when president obama was in office. you know, we've always sort of talked about the fact that there has been in many ways an intensity gap between our view

of the world and those on the other side and their understanding, they have been lying in wait for this moment, right? this is the -- not surprised by the caliber of the nominees. in part because certainly the lgbt community knew what we were getting with mike pence, and frankly, you know, i somehow suspect that president trump is not reviewing the dossiers of these nominees carefully when deciding who to put forth, but there are individuals like mike pence who absolutely sort of knew that this was sort of part of what they would get by signing on to this agenda. and so to the extent that as kristine said, is this a function of no vetting or very careful veting? they're going to keep throwing out nominees like this until we can beat one back which makes the jeff matier story so interesting, i'm sure we'll get to that, again, what is the exception, what is the new norm? i do think it really does demonstrate that there is an unwillingness to actually serve

in that role of a check and of a balance on these excesses out of the executive branch that i think in some ways is sort of the most troubling sort of revelation over the last year. and we've seen some unlikely defenders of the courts. i don't foe know if i would havt senator kennedy from louisiana on my short list of people, there to make some attempt to defend the dignity of the courts. would i wish his list were more, you know, capacious? of course. but i do think that this is a snowball that has picked up momentum has it's rolled down the hill. >> how does trump already change the federal bench when you're in, obviously he got a supreme court nominee confirmed, which is what a lot of people focus on the most, but here's gotten how many district and circuit court nominees confirmed? i know he got 12 circuit court nominees through in one year which is a report of -- in fact, i have the statistic here. that's 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. that's amazing. but what do you think that his -- that trump's biggest effect has been on the bench already? is it the supreme court? or is it some of these circuit court judges? do you have any thoughts on that? >> i think that we have to look at the full picture. the ability to appoint someone to the supreme court so early on in this tenure was significant. we're now into term two with judge gorsuch, and we're already seeing that he is closely aligned with justice thomas on a number of cases. and i think he is proving to be a justice who matches the litmus test, the ideological litmus test that this president has been using for nominees across the board. a litmus test that was shaped and defined in large part by the heritage foundation and the federalist society. this is a president who's all

about identifying so-called 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 we've seen emerge through the courts over the past decade. so the supreme court is just the tip of the iceberg. i think that he has moved forward at a lightning pace in confirming a record number of judges to the district and circuit courts in year one. former judge shira shinland of the southern district of new york has offered a lot of commentary about what president trump is doing with respect to judicial nominations and i think that she's exactly right when she's identified this as, perhaps, his lasting legacy. right? because these are young judges outside the mainstream who will be there for decades issuing rulings on issues that impact all aspects of american life, not just issues on voting rights

and criminal justice and employment discrimination and fair housing, issues on corporate -- corporations and issues really that touched all aspects of our lives. so i think we're already seeing and feeling the impact and this president really has been racing forward and moving nominees at a pace that exceeds that of any other president in recent time. >> thoughts? >> i agree with everything kristen said. i think also her earlier point about making the courts whiter and more male, you know, reversing that trend that we had been seeing on diversifying the judges who serve in communities that should reflect the communities they serve. i think that's going to. be a lasting legacy as well. but the other thing i would say is nominating gorsuch to a seat held hostage and then lowering the threshold for votes, so when

they change the rule that instead of having a 60-vote threshold in the senate, to 50, even though that decision was made by the senators, it was made becausedivisive. there was not the consultation that usually occurred across the aisle. there was not an interest in nominating someone who would get strong bipartisan support. so i think one of the lasting legacies is that from now on, a simple majority will confirm future supreme court justices. so as impactful as i think gorsuch will be, i also think that is a longer legacy that that rule change happened. >> i think one of the other ways that we're seeing the change already felt is, for example, when judge gor shisuch was at h confirmation hearing and gave his lip service to precedent and the rule of law and yet at the first opportunity that was made available to him, then-justice gorsuch decided that the

marriage equality decision didn't, in fact, answer the question of whether or not married same-sex couples were entitled to be on their child's birth circumstanertificate. so one of the things i think we see justice gorsuch doing, going to ripple down to the nominees we see getting confirmed to the court of appeals is saying try it, 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 ways i feel very sympathetic to the frustration that's been expressed perhaps more colorfully than i can on television by senator whitehouse, he usually keeps it clean because he's recorded as will. the notion we have individuals we know exactly why they were elected. as mambda identified, one in

three have explicitly blatantly anti-lgbt credentials and clearly nominations not in spite of that but, in fact, because of that. any soother sort of matrix, loo at individuals and the nomination of farr in north carolina, the offensiveness and outrage of that nomination, 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 see the arguments become more outlandish and potentially decisions from lower courts becoming more outlandish because there's been this sort of signaling that things were considered settled might not be anymore. >> so let's talk about the diversity of trump's judicial nomin nominees. i know as of late november, trump had nominated 54 white judges. three american indian judges. one latino judge. and one black judge. that's in a year. of his judges, 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 looks 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 effect 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? >> 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 it's 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, there's a lot of work that needs to be done to address the historical underrepresentation of women and minorities who serve as judges.

during obama's eight-year ten e tenure, he put forth about 320 or so judges. 42% of them were women. 19% of them were african-american. and about 10% of them were latino. that's 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 perspective. 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 it's truly a travesty what we're seeing from this president. >> so i would add that the senate judiciary committee did a hearing a couple years ago talking about the influence, even if there's just one -- how the male judges vote and rule on those panels. it was this really impressive statistical study about the influence of just adding that one element of diversity on a panel and so as an example, how we can move the needle in terms of the outcomes you get and how they -- >> how did it affect them? >> it dramatically affected not just -- it wasn't just a study about how the female judges

ruled, but it was a study to show their influence on panels. and so i'm sure acs can dig up that stat and put it up on their website, but it was in a senate judiciary committee 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 courts 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 it's interesting to not just think about it for diversity sake or confidence sake, but also how it impacts the other existing establishment players, you know, within the courts. so that was just a study that i had never thought about how it would influence the other people on the panels. and it was something that i thought the lawyers here in this lawyer's chapter might care about, too. >> i think the only thing that i would add, as i agree with all of that, is it's important in and of itself to make sure that we are 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, 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 it's important for us to have that extra layer of conversation of who -- what kind of straight white men are we seeing? we're seeing far, right? we're seeing individuals that are comfortable sort of defending the first iterations of the klan as nice business advisory councils. the kind of people we're seeing is the extra on top of the troubling nature of the lack of diversity, the fact we have on top of that seeing individuals drawn from such extreme viewpoints and o organizations further undermines confidence, in the same way you could potentially in theory have a

nonracist all-white 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're serving. there's no reason why that calculous is any different, and, 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. >> and -- >> i'm sorry. one more point on diversity is the senate judiciary committee, i mean, many of us remember back in '91 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 wasn't this outrageous behavior, why wasn't 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 had been serving for a long time. he's up for elevation. but it just -- the dynamic there compared to '91 when they were questioning anita hill was stark. i mean, if someone did a side-by-side of those two, you'd see at least in the senate we've come a long way. but what it also reminds you of is you're still talking about, you know, a white male judge and he had his prism through which he was viewing these sexual harassment cases. >> and then to kristine's point, the other game-changing development this week was the appointments of senators cory booker and ckamala harris to th senate judiciary committee which is such an important committee, it's the committee tasked with initially vetting and vetting properly all these judicial nominees being put forward. i think it's important that we have diversity at every level of our government and really

pleased that we've now gone from one african-american having ever served on this committee in its more than 200-year history to 3 this week with the appointments of booker and harris, we'll be looking to them to play a critical role in lifting up issues of race and civil rights as we move forward. let me come back and just add a personal point to the debate, discussion we're having right now. as an african-american woman, as a mother of a 13-year-old black boy, you know, there is something troubling with what we're seeing with this administration when it comes to racial diversity and their, you know, 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

color. to minority communities, generally, about their life aspirations. >> what is the message? >> that they are not qualified. that they can't even make the cut. that they can never be worthy of serving in important roles like, you know, justice on a court or becoming a u.s. attorney. and we need -- americans deserve a government, i think, that sends a different message, that sends a message of inclusion, that sends a message that anyone can have access to opportunity in our country. in so many ways, this administration is turning the clock back. >> jen, if i can just say, we had another really explicit of example of it this week, where we had the nomination of an individual for a federal district court judgeship, howard nielsen, who made the argument that a gay judge should have had to reveal and basically recuse himself from hearing a civil rights case involving the lgbtq

community, and i think that it's important to sort of put that in context now for a trump president who feels as though he can disparage a mexican-american judge and say he's unworthy. i mean, maybe we shouldn't 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 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 it's not only sort of the signaling of what it means in terms of professional aspirations but also we're seeing the flip side of that as well where the idea that other people bringing their perspective, that is biased 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. >> do you know of any, like, early 40-something, graying, lesbian judicial nominees? you do not look amused.

okay. let's talk about some of trump's specific judicial nominees. there's been a lot of talk about how some of them are particularly colorful or worrisome or dangerous. i'm curious, who do each of you think is trump's most -- one of trump's most dangerous or bizarre judicial nominees? i'm going to go first because i -- >> dangerous and bizarre? >> -- have my choice already. brett talley is -- was a district court nominee. 36 years old. never tried a case. he did not tell the senate his wife was married to the white house chief of staff who oversees the president's judicial nominations and also writes horror novels on the side and used to be a paranormal activity investigator. this was a nominee for a district court seat. he eventually, h e withdrew his name in embarrassment because of all the reasons -- >> he still serves at the justice department. >> he does. >> vetting other -- >> other judicial nominees.

but at least there was some kind of check here where even someone who met all these credentials, or had all those qualities, i mean, this guy made it to a hearing, didn't he? did he ever have this hearing? he did. so this is -- this is the caliber of someone who made it all the way to a senate judiciary committee confirmation hearing and had to bow out in embarrassment for many of the reasons i said. so is there someone who stands out to you guys where you've just been of the mix, where you're like, this person is particularly insane or dangerous for the greater good? >> well, let's be honest, we know that there are more matthew petersons out there. >> can yee juou just tell peopl matthew peterson? >> matthew peterson is the one whose nomination went up in flames when senator whitehouse from louisiana -- >> kennedy. >> sorry, senator kennedy, made clear that this was somebody who

didn't know about the federal rules of evidence. he hadn't tried cases. he hadn't really conducted depositions. he hadn't 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 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. i think it's really important that the senate slow down, that they stop attempting to push forth several circuit court nominees in one day which is not something we've ever historically seen. and really take time to comb through and figure out who these people are. figure out whether they've been honest and fully transparent in

the questionnaires they've put forward. we've seen nominee after nominee who's failed to make disclosures. 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 roug roughly 30% african-american and never had an african-american judge confirmed to sit in this court in its more than 140-plus-year history. during obama's tenure, there were two african-american women who were put forward. a former prosecutor, and a former state supreme court judge. jennifer may parker and patricia

timmons goodson. they have now been replaced by the likes of thomas farr. thomas farr is somebody who has really dedicated h iz career to defending and promoting voter suppression in the state of north carolina. he was the judge who defended the state's monster voter suppression law that the court of appeals found to dis criminate against minority voters with almost surgical precision. he's defended the state in racial gerrymandering cases on the wrong side. he's somebody who's defended an employer who staaid that women with children didn't have a place in the workplace. we at the lawyers' committee litigated a case against thomas farr, pugh versus avis, this was a case involving a car dealership that dis criminacrim against african-americans. at every stage of thomas farr's

career, he has been someone who's been deeply opposed to civil rights, but when it comes to voting rights in particular, the level of hostility and rekar recalsitrance have been pronounced. >> do you want to mention his relationship with jesse helms? >> indeed, right. he was a lawyer for jesse helms. and represented helms at a moment where the campaign was accused of having engaged in voter intimidation against african-americans and there were some question about whether he was truthful about his ties to campaign when he first came before the senate judiciary committee. so for so many reasons, i think it's important that the senate slow down, carefully review this nominee. he is somebody who is opposed by many people in the civil rights community who care about the right to vote. he's somebody who i do not believe would be fair and

impartial if he is apaipointed ultimately to the bench. i think he's somebody who would work decidedly to overturn cases in the voting rights space. so, so thomas farr, someone who is synonymous with voter suppression, i would put forth as the most dangerous nominee out there today. >> i second kristen. i love when kristen and i agree. >> you have to pick a different one. i picked brett talley, paranormal investigator. >> you picked -- i totally agree with kristen. this is a per pefect example of chosen because it was a feature, not a bug. this is how this nominee earned the nomination. for anyone who cares about democracy, anyone who cares about voter suppression, this is the number one. there really isn't -- there's a lot of bias, there's a lot of

problematic things about many other nominees, but he stands alone, i think, in this really troubling voter suppression history, plus recentsy. not only the postcards and potentially misleading the misl committee when questioned about his involvement in the jesse holmes. >> and when you say postcards, just to clarify for people watching, jesse homes sent out 100,000 postcards to specifically to black communities, if i've got this right, saying that the election was a different day? it said false information about when the election was. and also warned they could be punished for voter fraud if you don't vote on the right day. this happened 100,000 postcards. >> and it's a knnotorious case. and i was asked directly under oath if he was involved in it. and unfortunately he wasn't questioned as extensively as peterson was, right. so there are several members who

are new members. they have not had a chance to question this nominee. this sa kmm is an example of a nominee who since his hearing said he was involved, i remember. and we now have two new members that should have a right to question thomas farr in a new hearing. so it's hard. i completely agree with kristen. it's hard to pick another. i can list a few others but have i to underscore -- >> i have one. >> i betty know wh i know who y say. >> this trifecta. >> he's a pooh pooh platter. >> he's standing shoulder to shoulder in the folks in north carolina. >> pooh pooh, is that not right.

smo sm he is also made it his personal mission in life to target the lbgt community and target children and single handedly pushing campaigns against student trying to live out their life and go to the bathroom in high school in peace. but he's also the master mind behind hobby lobby and religious exemption we are seeing in terms of this idea that religious people have a license to discriminate if you are not consistent with the world view. and of course the hobby lobby decision was particularly troublesome because in that case it was a for profit employer who the religious beliefs of this foreprofit entity, this craft store was going to override the ability of a woman to use her employer provided health insurance to access

contraception. so he in anyways, is it better or worse he has so many bad things going for him. but yet when you think of not only all of the ways in which this individual sort of stands opposed to fundamental civil rights, but also the fact that he is the brain behind a lot of the theories that have been percolating for the last 20 years. and it was interesting, because even his confirmation hearing, he believes the stuff so truly in his core, he couldn't even kind of eek out the nonanswers that most of them know to say. there were times when he literally had to say i probably wouldn't abide by precedent if i felt so deeply about it. because we know this is in fact what he, and many other individuals as well, like jeff matieres, there is a little sort of snowflake where you cut it and then like five more come out. but in some ways, a, because it is a court of appeals nominee and has ability to effect the lives of hundreds of thousands of lbgt in the states most in

need of defense from the kind of things that we have seen, like happening in mississippi, where you have the state giving blessing to anti-lbgt views, to have him being, plus being part of the voter suppression machine, i absolutely agree, farr is horrifying. and it is as whorrifying becaus of the face of this. but carl duncan is the face of many of these other faces that we have been fighting and that have been emboldened to come to the surface in the trump era. >> let's talk about the american bar association. so they have had a central role in evaluating federal judiciary nominees since 1989. they evaluated something like more than 1700 jurdiciary nominees.

democrat and republican preside presidents. it's pretty rare when they decide someone is unanimously not qual tiified to it be a jud. i'm talking about a panel of 15 people that thoroughly evaluate this nominee, they talk to the people they know, they go through the paperwork and do exhaustive work. so one year in, trump has a total of four judiciary nominees rated not qualified two of them were rated unanimously not qualified. one of them who got unanimously not qualified receipting was stephen grass who was confirmed by the senate. so what? >> he wasn't just rated not qualified like you would expect brett tally who had never tried a case in federal court. he was rated not qualified unanimously for bias. that is something -- >> yes. for bias. but i have here, just to be

clear, also rated for being gratuitously mood. >> so temperament. >> right. >> so what i'll say is i have not seen that in the 15 years of judiciary nominations. usually the rating is professional qualifications. doesn't look at your ideology or pre precedent. this was a rare rating. they go and interview people locally who know the reputation of the nominee. and normally people frankly are hesitant to say such things because the odds you are going to get confirmed anyway are high. i mean, people who are trying to decide whether to say this guy has a bad temperament might think twice if they are going to appear in front of them. >> and in grass's case they interviewed more than 180 people connected to him in some way. and a theme that the aba reported was some had unusual fear of repercussions.

>> that's right. >> even though they were anonymous in the final report, they were still terrified that grass somehow it would get back to them that it was this person saying not great things. i mean, and yet he was confirmed. what does that tell you about the system? >> so what i observed in the explanation by the chairman of trying to distinguish how this was, in his view, not a big deal, is they just attacked the aba as an institution. now they cling to it when the aba ranks well qualified. so happy to use it as a credential when it supports them. but this was first time -- also they didn't let the aba testify at grass's hearing. so the person usually does the evaluation usually is testifying at this same hearing so that senators can say, well, how many

people did you interview, and what type of information did they give? so senator grassley, as the chairman, didn't let the aba testify contemporaneously, so the republican senators disparaged aba to discount the rating. but this was a stunning moment. because it wasn't just they hadn't had trial experience for 12 years or weren't 12 years out of law school. it was a very specific troubling thing. if you care that judges should be impartial. and i know all the lawyers in the room certainly understand how fundamental that is. but what the republicans on the senate judiciary committee said this year on grass is, that's not something that they are going to take into consideration. and that was incredibly troubling. and i'm afraid what precedent that sets. i don't think if you get a well qualified that's enough, or sufficient. but the fact that they found not qualified for bias should have given all 100 senators pause to

give a lifetime appointment to the circuit court nominee. >> and i think it's important p as the representative here from lambda legal to sort of be specific about the fact that one of the biases, and in fact the key bias that was identified, was the ability to give fair and impartial justice to lbgt americans. and it shows how much work needs to be done. because only way we are going to change this dynamic is who have the same level of outrage around an individual who is identified as incapable of being fair to a transgender litigant as it is when somebody has the stupidity to say on video that they think that transgender children are part of satan's plan. satan's plan can't be like the only thing that is bad enough to gret y get you disqualified. yet we see this willingness,

again, as kristine said to pivot and move to attack on aba. but really what that is signaling against bias against lbgt litigants doesn't bother anyone that much. that is why lambda legal has doubled down on our work in this area. because many communities, although they rely on the courts, i think the lbgt walk towards greater equality has been very much informed by the opportunity to make our case in court and to have individuals like grass be put on the bench, and again, not with an oh, well shucks we didn't know. but specifically having that information laid out on the table and then to be confirmed anyway is a really stark bone chilling, revealing development. >> nice. >> i think it's important that we also remember that the american bar association is an organization that's been around forever.

and virtually every lawyer, vast numbers of lawyers belong, are members of the aba. it is not partisan. it is a fully nonpartisan organization. and the ratings that they have been producing on judges has been ratings that judges have relied on for decades. since eisenhower. go george w. bush is one exception to that. so again we have administration changing the rules of the games. changing standards. changing tradition to put forth and race forward with these dangerous nominees. it was shameful that this administration announced that it would no longer take into consideration the ratings that had historically and traditionally been provided by aba. i want to put yup the numbers te aba rated more than 1800 nominees. only 2 had been found not

qualified. and already as you noted under this straadministration we haven four nominees deemed not qualified. that list also includes charles goodwin found not qualified for his work habits. he was nominatesed for a seat in oklahoma. >> by work habits, what that report said was the guy didn't show up to work, really. >> until mid afternoon. >> until 3:00 p.m. >> every day. >> and then holy teeter who was nominated for an asset in kansas who was deemed not qualified because of her belief complete lack of trial court experience. so again this comes back to the caliber of nominee. it was almost accidental that matthew peterson got smoked out and exposed. and it is so important that the senate slow down and take the time to fully evaluate the records underlying these nominees who are being put forth. >> speaking of changes to norms, trump has shown that when a

court rules against him, which has happened on his travel ban several times, his ban on transgender troops, on daca recently. when courts rule against him, he will often lash out against the court and the judiciary system itself. here's him on the daca rule can this week. this shows that daca almost wins before being reversed by higher courts. this is the president of the united states criticizing the federal court system. have you ever heard of a past president doing something like this? >> no. >> what effect do you think that has on just regular people's understanding how courts work and this whole third branch of government? do you think people hear this and believe, wow, we can't trust our court system?

>> i think that's his hope. i think this president is trying to tear down any institution that will hold him accountable. so whether it's the press, whether it's courts, you know, whether it's a special counsel. i think that there is a lot of just trying to decrease trust in anything that will hold him accountable. and i think the courts are a big part of that. i mean, he has had loss after loss in his muslim ban, and each time he in sumted the judinsult the judge or something about hawaii. >> what did he say? >> island out there. >> when he criticized him for being latino and claiming as if he couldn't be impartial against trump and trump university when this had been a former ausa who

had fought against drug cartels and risked his life, it was stunning. but what was surprising to me is you didn't hear that much outcry from judges. like i definitely thought you might hear the chief justice say something or you might hear someone talk about how damaging that can be to our whole justice system. but instead he's done it over and over again. that was not an isolated incident. and i don't think it's going to be an isolated incident. i think he's going to start talking about the grand jury and its racial competition. he'll start talking about whatever judge is involved in any of the cases involving the russia investigation. we are going to see more of it. and it is damaging to the confidence in the system, absolutely. >> you know, i sometimes use the term constitutional crisis to refer to the moment that we are in. we have an executive branch that doesn't demonstrate respect for the independents of the

judiciary. this is a separate branch of government. and it's role is to provide a system of checks and balances. and whether it is putting forth unqualified nominees to stack the courts or not having respect for the careful and pronounced judgments made by sitting judges h you know, it's deeply troubling. and demonstrates a lack of respect for the judiciary at the end of the day. >> and if i could just in. i was a justice department lawyer until very recently when the definition of justice changed under my feet and i needed to do civil rights work from elsewhere. but i think one of the things that i also worry about is i used to be able to speak about public service in the federal government as a wonderful fulfilling thing. and i worry so deeply about the men and women who are trying to

hold on and to continue to perform public service in the face of these kinds of attacks. and, again, thinking about the young people who will no longer think or hopefully we will correct it, but at this moment would never think they are someone who could be a judge. you think about who wants to be part of a government that speaks this way about the courts. and the fact that there is no meaningful pushback, no isolating of the president at moments when he makes these kinds of statements, again, is that sort of deeply disappointing and depressing moment. and you realize that that's the kind of thing that we will have to spend a lot of time and energy as a nation healing that very, very deep wound. because these aren't institutions that seem to matter very much to this president. he is happy to impugn the courts.

and it's going to be important f process to be engaged in this moment and call out shock ing ad call out the unamerican statements and really understand the magnitude of the work we will have to do to repair the damage. >> i have to say, someone who covers judiciary nominations i've almost been more surprised by the way senate republicans have just been quiet and just gone along with whatever. i mean on any topic, we could probably talk about that. but if we talk about judges they seem to quietly move along, let through certain nominees who may be pretty objectively worry some or not qualified, usher them through for the most part. what do you make of that? it's like the whole -- it's like there is a machine in place just to get nominees through

without -- no criticism. very little criticism of some pretty transparently troubling nominees from a nonpartisan standpoint? i mean, do you feel more surprised about i that? because i do. and i don't really understand here we are a year in and you'll see mitch mcconnell saying one thing on tv, but there is no critical thought or analysis of why a certain nominee could be troubling from a nonpartisan standpoint at all, very little. >> and we are living in an era of hyper partisanship. from where i sit on the outside looking in, this is a congress that is deeply divided. i think it has been incredibly difficult to find moments where congress can move forward and find support from both sides of the aisle on critical pressing, burning issues right now.

like immigration reform. and what we do with the hundreds of thousands of daca recipients who are in this limbo, this state of limbo. so, you know, it's not just judges. but i think in so many areas right now, there is just a political stalemate that is unfortunate and dangerous. and i'm not quite sure how you change that. but it is a midterm election season that make shake things up. but we need congress to figure out how to work together on a bipartisan way. and we need a senate that will step up and do its job and carry out its constitutional responsibility to provide advice and consent on judges. and there have just been glimmers of hope as we have seen with matthew pareterson. i know the senator from ohio said he won't move forward

because of jeff sessions stance on marijuana which is reversal of a commitment that this administration made to him to respect his state stance on marijuana use. so i'm deeply pessimistic. >> so i want to go back to tally and trying to figure out the lessons learned from brett tally's nominations. >> paranormal investigator. >> so brett tally not only did he get a hearing, he got reported on a committee. he got a straight party line vote. every republican voted for him. every democrat voted against him. so he was pending on the floor for months, i think. before the withdrawal happened. and when the news first broke, the news broke as chairman grassley was urging the withdrawal. but what we found out in days subsequent is that senator shelby of alabama had withdrawn his support. so really all it takes, in my view, lesson from that, it takes one or two republican senators,

they can do it privately or publicly, they hold the keys right now to whether a nominee actually gets vetted. whether there is this independent vetting. kennedy showed the world, certainly went viral in december with his questioning of peterson. that's what independence looks like. that's what a real lawyer should do in a hearing when he suspects someone is woefully unqualified. what i would love to see is the video playing showing out and bias, not just motion in limini. so i hope we include records of bias as part of that conversation. but i do think senator kennedy got so much attention from that viral video, there is some glimmer of hope it could cause others to act more independently. and don't forget, that the ratio in the senate got tighter after the alabama election. so now it's a two vote.

only takes two republicans to sink a nominee. and there are some independent minded republican senators. so i really do think the more attention gets paid to these controversial records, i think that's what sunk tally. i think there was press report. whether paranormal activity, or lack of wife's employme la lack of that or his wife's employment. >> and it said identify all family members that could pose a conflict of interest. it could not be more plain. the text is clear. and he did not identify his wife who clearly posed conflict of interest. not that that would be disqualifying. but he didn't disclose it. he also didn't disclose all of his anonymous blogging including

defending the first kkk. and he also didn't, this is judiciary nominees how to feel out senate questionnaire, he also just didn't disclose all these anonymous posts that investigative reporters were able to figure out were his. so the reporters really stepped up too and the knowledge of all the controversies i think helped too. >> so i have sort of my glass half empty and glass half full moments. half full is i hear reports from great reporters talking about how mark norris anti-lbgt racist nominee isn't quitting day job because he's not sure if that day job is going forward and i feel good. but then i also release this is up to the passage of the tax bill only thing that senate republicans were able to get done. right. and so to the extent they hold all the levers of power and may very well hear the clock ticking

in the background, that they may have to hand the levers over soon, i do worry we will face another nominations because there is the recognition that time is running out. i'm hopeful that we'll see a different dynamic. one of the things amazing on senator harris on that committee is she can break down a witness. see jeff sessions. right. so to the extent we have the theater of this. now, again senator grassley has structured these hearings in hawaii to prevent that from happening as much as possible by stacking multiple court of appeals on here ings and having three sessions in a day and all those things. but to the extent we have strong voices, smart, committed people in the senate, and then advocates out in the felt field making sure those messages are amplified, i do think that we'll hopefully see some of the worst of the worst being pulled back. for example, two of the nominees that we identified for having,

again, terrible anti-lbgt records in addition to other things, damien schiff and schwartz, their names did not appear on the list. as we know with health care, this is zombie apocalypse administration, nothing is truly done, but to the extent you start to see some of the nominees not renominated or moved to the back of the cue or pushed in a meaningful way. that may well be assign there is a recognition that losing on this is not worth the political cost. >> so with doug jones winning, as you mentioned ratio is now 51-49. extremely thin margin there chb. which republicans are you looking at now, if not one in particular as your key h the key republicans who may be on judiciary nominations more reasonable? >> well, senator kennedy is only republican who has voted against a trump judiciary nominee.

>> not even susan collins? >> not susan collins yet. so something we haven't talked about yet, but he is someone who had been with this president through transition and basically worked on every single legal controversy of this president. and he was confirmed over the opposition of senator kennedy. so that's the first. but i'll also know that senator mccain voted against an executive nominee of trump's because of his views on torture. brad bury. and nielsen the chair mentioned earlier worked with brad bury to excuse torture in the bush administration. so that's one we'll be watching to see if senator mccain feels the same way for this judiciary nominee who was involved in the bush administration torture memos as he did for stephen brad bury nominated to the department of transportation. those are two already shown

signs. susan collins in the bush administration voted against bill prior. and so that was a -- he was a very controversial bush administration judge who was also on the trump short list for the supreme court. so that's another person who was willing back in the last republican administration to say this person should not be confirmed. thoughts? >> well, and one of the things i'll also say is that it will be interesting in this next year to see a willingness to distance one self from the president. right. because i think in many ways there are different ways in which republicans can exert their influence. and obviously the most public and most in your face rebuke of the president is when someone is actually forced to a vote. right. but i also think that there are other ways in which we will see republicans hopefully exercising leadership to the extent they are not ready to engage in bold courageous steps and any republicans watching tonight i encourage you to find that reserve of courage. but if it means having those

conversations with grassley, having those conversations with the leader to say, please, don't possibly ever make me vote on someone this nuts. tan that is how some of these nominees wind up sort of falling away. that is important as well. but i do think while every nominee that we are able to defeat on the basis of lack of qualification and lack of ability to provide fair and impartial justice is important, it's going to be extremely important again, as we talk about the health of this nation, to actually have some of those bold acts of courage and those very clear statements that there is a level of integrity that needs to be present in nominees for these lifetime appointments. so i do hope that we will start to see those more public affirmations of what it is that judiciary nominees should represent rather than just behind the scenes, how some of

these others have been withdrawn. >> you know, and i want to make sure that we talk about the important role the public plays in this process. i think i really appreciate that we are talking about this issue today, because it's been very much a sleeper issue, i think, in year one of this administration. i don't think that there has been enough attention and focus on the crisis under way when it comes to these nominees. but i think it's important that people really pay attention to who are the lawyers in their respective states who are being put forth for these nominations, that they bring pressure to bare on their senator and speak up and think there is a nominee unqualified. i don't think we should sit back and as if this is a game of chess and hope and pray the senator wakes up on the right side of the bed. the public plays ha important part by being on record to

opposition to these radical outside the mainstream nominees is really critical right now. >> last question and then we'll go to q&a. if each of you could spend ten minutes alone with don mcgahn who is trump's white house counsel who oversees judiciary nominees and you could make one request about a change, a real change he could make in the way that they are doing judiciary nominations, given republican white house, put forward conservatives. but if you had some chance of shaping what's going on, what would your one request be to don mcgahn? >> i think mine would be very easy. i would say come on, are you kidding me? you can't find one african-american conservative? you can't find one condoleezza rice? one colin powell? you can't find one?

>> they found one. >> they did find one magistrate out of alabama. so i guess two. come on, give me two, give me three. i think that what we have seen with respect to race and the utter lack of racial and virtual lack of gender diversity is abhorrent. and i think i would want to have a heart to heart and say come on, you have to do better. >> i would want to be behind kristen what she said. but i also think that i would encourage him to actually consult with home state senators. because one thing we haven't talked about is that one other erosion of the kind of breaks that the senate can apply involves the prenomination consultation with home state senators. it sounds super wanky, but lawyers in this room understand how important it is that the

home state senators have a say. merit selection committees in many states, in wisconsin, there has been one in effect for decades. and i don't think this white house counsel has any concept of why that's a good idea, why the home state senators should have any say at all, why there should be a merit selection process that weeds out the chronys and corruption and people that have extreme records of bias. and also make sure that those local commissions put a premium on diversity. and diversity based on that district or that circuit. so, for example, in the 8th circuit we have terrible diversity, for example in that circuit. and i know many in this room has been trying to work on that because there is such a lack of diversity in that circuit, but lack of diversity in other circuits too. that could be solved if there was more local consultation with the local home state senators where the seat is where the judge is nominated. >> building on kristine's point

h wanted to fantasize about the conversation, because i would start out, john, i know you are busy, but really, we can help you out here. right. please don't take every name that you get from mike pence or the federal society, it's not worth it. right. it's not worth it to you to take on the burden of these sort of voices in the wilderness who are fighting in the lbgt space as though it is still 1950 or 1870. and you can fill in i think on race and on gender and all of these other things. i would almost say make my job harder, right. you are putting up these whackos that are so out of sync where we are in a nation. why are you doing this to yourself? tan why are you doing this to the country? right. i think kristine is absolutely right. it is offensive to suggest that

there aren't good, solid conservative men and women in any of these states. i clerkd for republican judge. we don't agree on a lot of things. but there is an actual core group of values that individuals can be liberal or conservative and still hold in terms of the rule of law. fundamental rights. the idea of actually making sure that there is access to courts. so i would just say, you know, don, if you need help, if you are bus circumstany, the herita foundation isn't best outsourcing, now it may not be his problem because he may be looking for a job soon. but there is a better pool of people to choose from that are still consistent with your values. and again we all recognize elections have consequences so no one is expecting this administration to nominate the next through owe good marshall as much as we may long for that.

but the extent to which the selections are so spite full and vindictive and in your space really is contributing to den gauges of an institution that we all really need to be a healthy one. >> all right. let's do q&a. anybody have a question? i think you maybe wrote them down. >> you can also keep writing them down, i'm told. >> okay. first question. so what do we do? >> you call 202-224-3121 ran expreand express your outrage to your senator about some of these unqualified bottom of the barrel radical outside the mainstream nominees who are being put forth from your state. i think everybody should be paying attention to the vacancies that exist in your state.

there are jus there a there are judiciary emergencies, so it's important to voice your objection and tell your senator to slow down, they'll be here for life, only way to remove them is through impeachment, which happens, so speaking up in the process i thisnk is an important role for the public to play. >> i agree with that. if you are in d.c. show up at the judiciary committee. these are public meetings. >> barrel of laughs. >> depends which day. peterson was one to be in. so open to the public. but i think 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. everyone has two senators. and if you live in d.c. then your trask ask is to go to the

markups. because senate is supposed to act as independent check. but sometimes we do have an enthusiasm gap getting members to understand this is an important issue to is half the battle. senators do need to hear that the independents of the courts is important. and they usually only hear it from lawyers. so also talk to your nonlawyer friends. because it matters to them too. it's impacting their lives every day just as it is lawyers lives. >> i grew he with all of that. and, again, so many different ways in which individuals can exercise their voice. it can be calling your senator. it can be writing letters to the editor, engaging your local press, demanding coverage what is happening. because again to the extent kristen talked about the fact this has been sleeper issue, extremely important over the last few months to have this become part of the public conversation exactly what trump is doing to this country and the toxicity he is injecting into our bloodstream in a way we will not recover from in four or

eight years when the trump administration is toefr. these will be individuals on the bench shaping constitutional law. thinking about our rights and our access to justice for 30 and 40 years. our children and grand children are looking to us at this moment to stand up and defend them. and so there is no tool that should be sort of left unused at this moment. >> do you see the blue slip process holding for district court nominees, if not circuit court nominees, for states with democratic senators how do you see it influencing the type of individuals nominated and confirmed? >> i think the blue slip is single most porn thing that effects the quality of nominees. so blue slip, i suspect you know what it is. >> tell c-span what it is. blue piece of paper is sent to the kpoe home state senators. when she is nominated they send it to the two home state

senators they decide and either sign off i approve or disapprove. and whether they approve or not determines whether sharon would move forward. that has been the process for about a century. the now there have been exceptions. but the purpose of the blue splip, mea slip, advice and consent. it's supposed to protect the home state senators to give advice and have it heard. so sometimes it has been abused. i am in the here to say that the blue slip solves all problems. i think the eastern district of north carolina is an example of republicans using the blue slip to keep that seat open for more than a decade. but having that say, having that role hasten shu ensured both br

of government, both legislative and executive, some say third branch impartial branch. so if that is owe roded further, you'll see less check on the executives. so increase in executive power, diminution of senate power. why would grassley want that to happen, i think it's a function of short-term thinking. i think any senator on either side of the aisle should understand eroding the blue slip power reduces their own power and reduce the power with the next president and the president after that. so i think the problem is short-term thinking and racing to get what they can. but i think that long-term is really going to reduce the check on the executive. >> and whenever we see a 11th hour effort to change the rules of the game, we should all be weary and deeply skeptical about what's afoot.

the blue slip tradition has been a long standi a long standing practice in the senate. it encourages bipartisan and encourages senators to work together. it's been a check on radical and qualified nominees in many instances in the past. i think it's dangerous that we are now seeing a senate that's willing to so quickly walk away from the aba rating process. to walk away from the blue slip tradition. and it's something i think that should make all of us really scared about what's going on. what's truly afoot. >> do you think grassley is doing long-term damage to the committee at least in november when he skipped the blue slip for a circuit court nominee? is that. >> yes. >> is that a blip or do you think this is serious no no that could really damage the way this goes forward? >> i think in the next couple of weeks we'll realize whether it's a pattern or blip.

but not only that, i think there is a real risk, if they are not taking the questioning seriously. so talked about thomas farr misleading the committee. if he doesn't get another hearing, if that's not taken seriously that under oath a nominee is not answering questions accurately, that also under mines the whole process. why are people going through this questioning if they don't have to answer honestly? why do they feel out the senate questionnaire if it tells you to disclose potential conflicts of interest and you get away with it if you don't? so there is also these -- this vetting process that's being undermined as well as all the blue slip concerns that it is just going to diminish the power of this committee and the whole senate. >> and it also says something about what this person's capacity would be like in a courtroom where witnesses take an oath and you expect them to be truthful. p- a and you expect judges and juries

to weigh the truthfulness. where you have a judge showing lack of truth, i think there is reason to have little confidence that person could carry out their abilities as a judge in a federal courtroom. >> do you see or expect the ideological tilt of trump's nominees going to specialized court like the federal circuit where judges have traditionally been nominated on specialized expertise? >> i think we've already seen trump trying to create a pipeline by nominating two individuals, schwartz and schiff only because they are in a specialized court did not have to go through the aba qualification rating. i think that it would have been interesting to see what that rating would have been, particularly in light of the fact one of them hadn't practiced law long enough to satisfy the bare minimum of

qualification for the aba. but i think to the extent we have seen the court of federal claims as being a place where a number of these extremely ideological nominees have been put forth should have us all believe that there is no sort of court that is going to be necessarily immune from the kind of ideological pushes that we have seen to date. >> but the stakes are high when it comes to federal district and circuit courts. so i think that's likely where we'll see this strategy really playing out and see a real concerted focus to put forth the radical main striem nominees. about 99.9% of cases that move through the federal court system are cases that are in the district court and the circuit courts. so i continue to think that will be the real place of focus. >> and i think that's absolutely right. because we have seen certainly chuck grassley and mitch mcconnell really placing

emphasis on the court of appeals, recognizing how important they are. so we may i think consider to see nominations that are put forth, but whether or not they are sort of just kind of made as sort of red meat thrown to a particular part of their base and they don't actually move through the system very quickly, i think that we can continue to see that kind of a trend. >> all right. any more questions? >> i see a woman with a card. all right. also my wife just texted and asked how is it going? it's going. all right. take a judge with clear record of past bias. any chance of recusal in a case on that subject comes up? interesting. >> i will you halove that quest. i really love that question. there are several that have clear bias in their record. but let's just take one we haven't talked about yet. bush was one of the two people

that, i forget his name, was it john bush, one of the people that named the bloggers. this guy blogged on so many different issues that i think a recusal motion would certainly be in order for several of them. but don't forget recusal motions are often ruled on at least first by the judge himself. so hi can imagine a lot of recusal motions in the future for a lot of these nominees should they get confirmed. but it will be interesting if blog postings will be ways of recusal. because many of trump's nominees were bloggers. we had will et of texas and bush and tally was also a blogger. so i'm curious to see the first recusal either anonymous blog later attributed to the person or a judge. >> yeah, it's an interesting

question. you know, i feel like we haven't seen that much. but i think it speaks to the fact. >> has that ever happened? >> i'm sure it has, but not on a mass scale. but this being such an unprecedented era where we are seeing radical truly bias individuals getting these lifetime appointments, we may very well see lawyers that are saying my job is to provide the most zealous representation on behalf of my client and make sure my client is treated fairly. and if they have been assigned to a judge whereby as is clear and a parent from day one, we might indeed see more recusal motions. it's an interesting, i think, question. >> and i think it's important to swing back to when we were talking about sort of the chilling nature of what has happened, right. because the idea of being able to offer an anonymous assessment

of stephen grass and put on the record in a way that at least pretends to give you some shelter that you have concerns about this individual's bias, a recusal motion is the antithesis of that, you are in front of the judge on behalf of a client making acquisition that this person cannot provide a fair hearing for your client. the risks and the stakes are so high that i think that there have been many conversations that i've had with colleagues about whether or not it is worth it to do that or not. and really in many ways demonstrates in so many ways how much all of this, how the entire system depends so much on good faith. right. people operating in good faith. and when you see individuals comfortable lying and misleading and failing to disclose nomination process itself, what does that tell you about the good faith presumptions that have animated the system to dated and whether or not those will continue to hold.

so it will be interesting and i do think we may very well see some of those motions. but to anyone who is taking comfort in the fact that these nominees can be confirmed and don't worry, if they really are bias, recusal motions we'll make sure people get fair hearings should disabuse themselves of that sole comfort. >> what about if you are gra tu usually rude? >> nothing. >> the problem is that probably will get worth with the lifetime appointment, not better. >> true. is it a crime when they falsely answer their judiciary questionnaires? >> aren't they under penalty of perjury. >> they are under oath. there probably is that cautionary language on there. but rare that anyone has actually stepped up to enforce. >> and then the last question is. . how valuable is diversity in the

form of having attended a public university and or having worked in the nonprofit sector, how does that kind of diversity compare to race gender and lbgt? >> that's a really interesting question. when you first started reading i thought it was going to the bias on supreme court justices how they went to two different schools. but is it a question about judges with different educational backgrounds? >> yes. when you talk about race, gender or sexual orientation and gender identity, i sometimes wonder why aren't we talking about the fact that almost all high level judges have degrees from the same, very few, and private universities, and why almost all of them spend so much of their careers in for private for profit law firms as opposed to many of these wonderful nonprofit organizations, and aren't those the kind of

perspectives that are very, very valuable? >> go ahead. i mean diversity of perspective i think is really a key issue that i know a tlot of people wee fighting for in the diversity bucket in the last administration. making sure there were some public interest lawyers. that there were plaintiffs lawyers. that there were people that just didn't go to harvard and yale. i echo your concern. i think also there is a class issue that i think you are touching on there too. that people have different perspectives. but i think what we are really saying is diversity on all these levels matters to both public confidence and the ability of a judge, you know, to see things impartially and make sure judges aren't stacked in one way against you. so i think it's a really important point but i don't think many people have been talking about in terms of public versus private education. but i think you are onto

something that often only comes up in the supreme court context where everyone seems to have gone to two schools. >> yeah. and i'll just say that this is it almost a topic for another day, a separate panel discussion. this question of whether there is a kind of singular elitist path that one needs to follow in order to secure a position like a judgment ship. it's interesting. but most certainly during an obama years we saw mix of people with very professional backgrounds who became judges. public defender and the federal prosecutor would be one example. and here i would harken back to decades ago, just to underscore how right now at this moment we are really turning the clock back in terms of progress. you know, through good marshall was civil rights who became a federal june. i couldn't imagine now that we

see this president elevate someone who has committed their professional careers to protecting the public interests. you know, appointing a civil rights lawyer to a federal court is not something we would see from this president. >> why? >> well, they might consider themselves civil rights lawyers. what's interesting about it is the mission, you know, evidence, and when you talked about kyle duncan, for example, right h you know, clearly on a mission, not for civil and human rights, for all of us, but on a legal mission on an ideological mission. >> and with that, i think we are done. thanks for listening to judiciary nominations at wtf. and thanks to our panelists. >> and i want to take a quick moment for being here. you have been absolutely incredible. and for everyone listening, they have all given us a lot to think about and a lot of different opportunities for us to be

talking to our friends, family, coworkers, senators. and one thing i wanted to let you know they do have a love our constitution initiative so some of us will be spending time with our constitution with article ii, section 2, and whole power point where you can go through and walk many of your friends and family and senators through this very process. you can talk about with them that might give you anxiety opportunities that people can speak out how important the courts are and how important judges are and how important we still have a process that respects all of that in our values. so thank you all so much for being here this evening. and thank you again to all of our panelists. >> that was really great.

>> thank you. [ applause ] >> tonight american history is live look at vietnam war at the time offensive and battle of way with remarks from author mark baldwin author of way 1968 turning point of american war. we'll also hear from stars and strikes photographs who make up a new exhibit. american history tv live beginning at 7 eastern on c-span3. next week marks the 50th anniversary of the start of the vietnam war. and tonight during american history prime time oral histories from west point graduates who served in the vietnam war. starts tonight at 8:30 eastern here on c-span3. >> the president of the united states.