LULU GARCIA-NAVARRO, HOST:
The Senate is considering new candidates to be federal judges. They're Republican nominees sent to the Republican-controlled Senate by a Republican president. So it was surprising this week to hear Senator John Kennedy from deep red Louisiana say this to one of these nominees appearing before him this week.
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JOHN KENNEDY: I've read your blogs. I'm not impressed.
GARCIA-NAVARRO: Joining us to explain is NPR legal affairs correspondent Nina Totenberg. Hey, Nina.
NINA TOTENBERG, BYLINE: Hi.
GARCIA-NAVARRO: So Senator Kennedy wasn't impressed at comments Kentucky attorney John Bush made on blogs he maintained before his nomination. But he wasn't the only blogger sent by President Trump to the Senate this week. Right?
TOTENBERG: Right. There was also attorney Damien Schiff, who's with the Pacific Legal Foundation, who's also a blogger. And he's weighed in against everything from gay rights to rules guarding the environment and even called Supreme Court Justice Anthony Kennedy a judicial prostitute in one of his blogs.
GARCIA-NAVARRO: Is this going to disqualify them in any way, or do you expect them to make it through?
TOTENBERG: Well, you can't deny the math, the Republican math. They control the Senate.
TOTENBERG: These are nominees from a Republican president. And I don't think there are the votes to stop either of these nominees, although they certainly could be slowed down some by the Democrats when they get to the floor.
GARCIA-NAVARRO: But the Republicans wouldn't see some of these comments as disqualifying?
TOTENBERG: You know, there's so much going on in Washington that a nasty little hearing like this, that was embarrassing, isn't likely to surface to the top. I did a story on it. But, I have to say, I don't think there were three other reporters in the room. There's a lot going on here. And I only knew about this 'cause I got a tip that these guys were interesting.
GARCIA-NAVARRO: There are a lot of open positions on the federal bench right now. Can you remind us why there are so many?
TOTENBERG: There are more than 130. And the reason is - for literally years, once the Democrats lost control of the Senate, Republicans blocked filling as many of these seats as often as they could, even when the nominees were uncontroversial. So 130 of them didn't get filled. And there's no more filibuster because the Democrats got rid of that in 2013 and then lost the Senate.
TOTENBERG: And now they don't have the control of having a Democratic president. So this president, with a Republican Senate, is going to whoosh through a lot of nominees who would be anathema to most Democrats.
GARCIA-NAVARRO: All right, so with all these vacant courtrooms, why do you think the Trump administration decided to put forward these two bloggers so early in the process? Who's suggesting these candidates. Who's vetting them? And why would they include candidates with baggage in the first crop?
TOTENBERG: Well, they're being largely suggested from outside the administration - by The Heritage Foundation, the conservative Federalist Society and the White House Counsel's Office, which is staffed by very qualified and very conservative young lawyers. And that's where the vetting is done. But they've outsourced some of this to some of these other groups. You have to remember, Lulu, that this is a conservative Republican administration. And who's at the table for that? Corporate interests, conservative religious interests, anti-labor interests - you know, that's who's sitting at the table. In a Democratic administration, who's sitting at the table? Environmentalists, consumer affairs activists, civil libertarians.
GARCIA-NAVARRO: There's very different interests.
TOTENBERG: These are entirely different groups of people who sit at the table and help vet these people. But this is the Trump administration. It is largely unpopulated. And the vetting is, I suspect, a bit haphazard.
GARCIA-NAVARRO: All right, how much is this president going to shape the bench? And what will this bench look like?
TOTENBERG: Well, it depends whether he has four years or eight years. An eight-year presidency usually gets to name the majority of lower court judges. And even Obama - even being blocked - named, I would say, there are Democratic appointees that dominate or are the majority of about two thirds of the appeals courts in the country, the federal appeals courts.
This president will have a similar opportunity. And in fact, there are some Republicans who are pushing to create more federal judgeships for them to fill. And there may be a need in some places where there's a dearth of particularly federal district court judges to handle a huge number of drug, immigration, etc., kinds of cases.
GARCIA-NAVARRO: All right, that's NPR legal affairs correspondent Nina Totenberg. Thank you so much.
TOTENBERG: You're welcome.
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