 Hello, everyone. Welcome to spring. Oh, not yet, I guess. I'm Carol Hinkle, President of Tripoli. We're very excited to offer you again eight wonderful lectures going forward. And I want to take this opportunity to thank every single one of you for supporting us. It really means a lot to the board. And also a big thank you to the board who's worked tirelessly to get these zoom webinar lectures available for us for the spring. So, and then there's Beth Wood, who's the program chair who's amazing. Beth, would you now like to introduce today's speaker please. Hello everyone, and welcome to our first talk of 2021. I'm very pleased to welcome back Dr Lisa Holmes. Lisa is an associate professor of political science at the University of Vermont. Some of her special interests include judicial politics and constitutional law. She also in addition to her teaching has been publishing lively. Lisa is a past recipient of UVM's award for excellence in teaching. And she has earned rave reviews for her past lectures here at Tripoli as well. So please join me in giving a warm welcome back to Dr Lisa Holmes. Thank you very much, Beth. While I am in the process of sharing my screen. Hopefully you can all see my PowerPoint presentation here. Let me also just following Carol's lead. Thank everyone involved in organizing these events, especially Beth, who was kind enough to invite me back again and beyond, who helps on the tech, the technological side. I really enjoy coming in and doing these talks to I think you're a fantastic organization. So thank you for having me again. Just one quick announcement, I will be very happy to answer any questions, but I'll answer them at the end so please go ahead and write whatever questions you might have throughout the talk. And I will get to as many as I can so I'll plan on talking for about 40 minutes, and then we'll spend the rest of the time with whatever questions you may have. So the title of my talk is what can't be undone the Trump judiciary and the Biden presidency. And I got I grabbed the title of my talk from a comment that now Senate Minority Leader, Mitch McConnell made back in 2019. He was at an event in Kentucky I believe it was some sort of Chamber of Commerce event or something like that. And as you can see from the snippets that I've pulled from this Washington Post article at the time. He was asked in 2019. So what would you do if a Supreme Court justice died in during the 2020 presidential election year, especially of course, coming on the heels of of what happened in 2016, when Mitch McConnell and Republicans in the Senate held up Obama's opportunity to replace Justice Antonin Scalia with Merrick Garland so in 2019, you know, majority leader McConnell was asked with, what would you do if if there was a vacancy on the Supreme Court in 2020. And McConnell said, Oh, we'd fill it which of course, you know, moving forward a year or so they in fact of course did that when Ruth Bader Ginsburg died just a few months ago of course I will get to that as I walk through here. The real quote that I want to focus on here is is the is down here at the bottom, where McConnell said, What can't be undone in Washington DC, our lifetime appointments to and I also really appreciate or notice his choice of language here to young men and appointed to the bench who then of course McConnell goes on to say who believe in the point notion that the job of the judges to follow the law. I'll talk a little bit about Trump's judges and their ideology in a little bit. I'm not going to get into judicial philosophy really what I'm interested in from this quote is is McConnell running right to the point of judges can't be undone. Well, many other aspects of a president's legacy, especially these days because presidents as many of you probably know, operate a lot more these days through, through things like executive orders, presidential power as opposed to pushing through Congress. So those kinds of legacies are much easier to undo lifetime appointed judges are there for as long as the judge wants to be there. So of course McConnell, what McConnell is highlighting are the stakes here of how important the judiciary is to a president's legacy and it's a particularly important legacy, because it can't be undone through kind of easy normal political means. So here's what I'm going to do today. I'm going to talk about President Trump's judicial legacy I'll talk about the opportunities in the results. The result of that opportunity. I'll talk about a little bit about the opening weeks and potential potential future of the Biden presidency. I'll also focus there on opportunities and I'll talk about Biden's approach here. So far at least I'll conclude with a couple of quick comments on what to watch for this year. And then as already mentioned, we'll get to any questions that you might have. Once I get through all of this. So, starting with Trump's judicial legacy. Well the three most obvious pieces of Trump's judicial legacy are his three appointees to the US Supreme Court, Neil Gorsuch, Brett Kavanaugh and most recently Amy Coney This of course puts Trump in a different, better preferred position compared to other recent presidents let's just touch on this for a moment right President Trump got to appoint three people to the US Supreme Court Barack Obama over eight years only appointed to George W. H. W. Bush over eight years only appointed to H. W. Bush over four years only appointed to Clinton as well only appointed to across eight years so so already just when in looking at the Supreme Court you see a substantial legacy here. And I think it's also worth noting that two of these three appointees were that that Trump was able to fill really Trump got to fill them because of the actions of Mitch McConnell right Mitch McConnell's Republican controlled Senate in the last year of Obama's administration, holding up the Scalia vacancy so that Trump could fill it with Gorsuch. And similarly, McConnell's Republican controlled Senate this past fall as I'm sure you all know and we're paying attention to of pushing very quickly through Amy Gorsuch's various appointment to replace Ruth Bader Ginsburg. I'll have a little bit more to say about about where Kavanaugh seat came from as I walk through this, but this is just the starting point. I think another thing to keep in mind in terms of Trump's legacy is looking even a little bit more broadly at the opportunities that he had. So you can see for yourselves what I have up here but just to kind of tick off some basic statistics for you. When President Trump was inaugurated, he inherited over 100 vacancies to the federal judiciary. In this context, there are only just under 900 seats on the federal courts. So Trump came into office with a substantial opportunity handed to him. Now, every president comes in with vacancies on the judiciary, but but I'll show you some comparative data in just a moment to show that in recent, in recent presidencies, Trump had a lot more opportunity right out of the gate than others. There were some terminology and to parse this out even a little bit more more closely that out of the hundred vacancies. Well, one was on the Supreme Court. I've already touched on that that's highly unusual of course for a president to come in with a vacancy on the Supreme Court, and it is unprecedented for a president to come into into office with a vacancy that has been outstanding for as long as it has been, right, Scalia seat had been open since February of the previous year, when Trump was inaugurated in January of 2017. But in addition, Trump inherited 17 seats on those intermediate courts of appeals. Those are the very important appellate courts between the trial courts at the bottom of the federal judicial hierarchy and the Supreme Court at the top. And as some of you might already be aware of most the vast majority of federal cases, never make it to the Supreme Court. So those courts of appeals are very, very important. They resolve many questions of law, and the courts of appeals are also important, because that's kind of the breeding ground for future Supreme Court justices, not all of them but most members of the current Supreme Court were elevated to the Supreme Court from the courts of appeals. So those are particularly important seats. And then what are called district courts are the federal trial courts. Those are also also important. They are lifetime tenured seats. They are far more of them and in terms of sort of shaping the direction of precedent and legal policy, the district courts are less consequential than the courts of appeals but they're still they're still consequential. And another thing that I think is worth mentioning here, of course, is what's colloquially referred to as the nuclear option. And that is the political maneuver that the Senate has engaged in twice in recent years to lessen all but eliminate the power of the filibuster over judicial appointments. Since 2013, the filibuster has not really been in play for a point for appointments to the lower courts those courts of appeals, or the district courts. In the Obama administration, when then when then the Senate was controlled by Democrats, headed by Harry Reid invoked filibuster reform to stop all of the obstruction that was happening through regular Republican use of the filibuster to allow Obama's opportunity to appoint judges to the lower courts. Then of course what happened within weeks of 2017 starting was that Mitch McConnell expanded the nuclear option so that the filibuster would no longer be a hindrance to appointing judges. So what this means long story short is that now we live in a world where the minority party in the Senate cannot on their own stop the confirmation of any federal judge to any level of the judiciary. So and that's another important opportunity that Trump partially inherited and then McConnell bumped up to the next level. So what you had in 2017 was Trump coming into office with over 100 vacancies, including one to the Supreme Court and multiple to the other courts of appeals unified government with Republicans controlling the Senate, and no real opportunity for Democrats in the Senate on their own to obstruct delay or prevent any appointees to any level of the judiciary. Let me just do some comparative data. Here are my comparative data, just to show you by comparison with some with the other two most recent presidents. President Trump inherited over 100 vacancies. Obama only inherited about 50 vacancies. Again, most are going to be to the district courts that's what we would expect, but fewer to both the district courts and the courts of appeals. George W. Bush on the other hand inherited about 80 vacancies. Excuse me, 26 to the courts of appeals and 54 to the district courts. And again, keep in mind that McConnell has a key role here. Not only did McConnell clear the path for Trump to try to capitalize on this opportunity by retaining and even expanding the nuclear system, getting rid of the filibuster in fall, but McConnell's behavior in the tail end in the last years of the Obama presidency is what set up Trump's opportunity in the first place. You all know about Scalia seat already right everybody remembers that that was a big ticket item example. But what you might not remember so well or not have even heard about at the time is that the other thing that McConnell was at that same period of time that he was preventing Obama from replacing Scalia, McConnell was also putting the brakes almost completely on confirming any federal judges in the last two years of the Obama presidency. So only I'll show you some some even more complimentary comparative data in a moment, but President Obama only was able to appoint 19 judges in total, and only one to the courts of appeals in his last year of office. I think I phrased this awkwardly. Obama did get to appoint more than 19 judges in his last two years in office. These data are for his very last year in 2016. And, and again I'll show you a counterpoint to this in a moment. The last judge confirmed during the Obama administration was confirmed in early July of 2016. Remember that because I'll show you a counterpoint as to what McConnell was doing in the waning weeks and months of the Trump administration. Okay, so that's the opportunity right compared to other recent presidents Trump's opportunity was far more consequential was far bigger, far more vacancies, the filibuster's not in the way and his party controls the Senate, and he's got in charge of the Senate, a majority leader who clearly cares about this, perhaps more than McConnell cares about just about anything else. And by compares about this of course what I mean is cares about the judges and appointing judges remember McConnell is the one who said that's the legacy that cannot be undone. This is a setup. Let's talk about the results. How did President Trump capitalize on that opportunity. Well what I'm showing you here is a graphic that I just pulled from some Pew Center research from an article by the Pew Research Center, showing how many judges Trump appointed, compared to other recent presidents. He appointed well over 200 judges total 54 to the courts of appeals, almost 175 to the district courts and of course those three Supreme Court justices that I've already covered. That puts him behind Obama and W Bush, but of course keep in mind that the Obama presidency and the W Bush presidency were twice as long as the Trump presidency. So when a much shorter period of time, Trump accomplished a heck of a lot with respect to appointing judges. You know the one other thing I'll mention from this graphic that you might be interested in is Jimmy Carter. Jimmy Carter was also a one term president. Jimmy Carter appointed even more judges than Trump did, and certainly more than the other one term president in this mix hw bush did. There's two things about that though. Well, actually three things one is that Carter as well benefited from having a democratic unified government a democratic control Senate at the time, but secondly, things were different than none of this was viewed as consequential, especially appointing lower court judges, you know this increased politicization and discord and fighting and rank or over appointing especially appeals court judges and district court judges has only increased since the Carter administration. So you know Carter accomplished a lot, but it was at a very different time. Last thing Carter also for for a one term president had an unusual opportunity to have an impact on the federal judiciary in that Congress created well over 100 new judges, new judicial seats during the Carter administration. That hasn't happened in years and years and years so one. So just to kind of explain one of the reasons why Carter had such an impact on the on the composition of the judiciary is yes it was a different time back then, but also because Congress literally handed him well over 100 vacancies that they created to accommodate things like workload changes and, and that sort of thing. In one way though Carter was unlucky as president and that of course he did not get to appoint anybody to the Supreme Court. So, so Carter had a big impact on the lower courts, but none on the composition of the Supreme Court. So again, compared to previous one term presidents and two term presidents, Trump's success rate and just getting people on the bench is is is frankly impressive and is is going to be a standing lasting legacy of his administration. I also want to spend just a couple of minutes talking about diversity here. And also what I'm showing you at least initially are some graphics from that same Pew Research Center report on the diversity of Trump's judges president the judges appointed by President Trump. And as you kind of parse through this let's look over here on the left hand side first. This is the graphic that shows gender diversity. The, the percentage here on the right hand side of what percentage of judicial appointees did each president select who were women. Right. One thing that is probably not a big surprise is that recent Democratic presidents have been more interested in appointing diverse judges than Republican presidents if if you want me to hear me talk more about that ask me a question about it I'll be happy to talk a little bit more but that's, that's probably not a big surprise to any of you. But what you'll also notice if you look at these data carefully is that within each presidential cohort, the Democrats in blue and the Republicans in red, you see diversity increasing within each cohort over time. So Carter was the first president, really in our whole history, who was really interested in prioritizing diversity, but you got to start you know you got to start small you start from having a relatively small pool of women, a relatively small pool of people of color. You got the ball rolling. Bill Clinton, up to the ante on that, and Barack Obama appointed a more diverse, diverse judiciary than any president in American history. But within the Republican cohort, you also see gains over time from Reagan to HW Bush, less of a gain to W Bush and even also a small gain to President Trump. These graphics shows similar information with respect to racial and ethnic diversity and you see the same kind of norms right increasing diversity in general, but within each cohort Democratic presidents Republican presidents, you tend to see increasing diversity. So on its face, these graphics may look as though Trump was at least holding the line on diversity. He's not improving diversity relative certainly not relative to Obama, but we probably wouldn't expect him to, but he also hasn't really increased diversity, compared to his most immediate Republican predecessor, George, George W Bush. But I want to also show you a different graphic from a different source that shows that if you think about this another way. President Trump did not hold the line on diversity, he lost ground on diversity. Let's move there. This is a graphic from a recent article co authored by my friend and former co co author Rory Spilsow Berg and her regular author, co author Eric Walton Berg. And what this graphic shows is the net effect on judicial diversity by a particular president and you can see they explain it better than I could how they collected these data and how they put this this graphic together. What they did was they compared every departing judge, in terms of their racial, ethnic and gender diversity to the incoming judge who replaced them. And I think they're what you see quite dramatically is that President Trump is the first president in over 40 years to lose ground on diversity. Americans and President and Democrats both sense Carter have improved the net diversity on the federal judiciary, President Trump ended that trend in a pretty in a pretty dramatic way. I think this matters for lots of reasons it matters for kind of normative reasons of representation. People like Rory and Eric Walton Berg are interested in whether this might hurt the legitimacy of the diversity, especially, excuse me the legitimacy of the judiciary, especially among more marginalized populations who do not see themselves represented quite so in this very important branch of government. I also have one other reason why I think this is particularly important, which is that whenever we get another Republican president, obviously I have no idea when that may happen for years eight years 12 years, whatever. The pool of candidates to elevate to a higher level of the of the judiciary of the judiciary comes from the existing district and even Court of Appeals judges right. So what I'm trying to express here is that let's say in eight years if we get another Republican president, you would expect that Republican president to look perhaps first and foremost to the Trump judges, and the W Bush judges on the district courts to elevate to the Court of Appeals and on the courts of appeals perhaps to elevate to the Supreme Court. If it is another eight years before we get another Republican president, the W Bush appointees might be a little on the older side. Again remember that quote that McConnell mentioned with lifetime appointments there is an advantage in appointing younger judges, of course, but the Trump cohort might be exactly the place where a subsequent Republican president might look for people to appoint to higher levels of the judiciary. And if those judges are less diverse than previous cohorts, we might expect the legacy the kind of the racial, ethnic and gender diversity legacy of the Trump cohort to extend even into whenever we get a next a new Republican president. Okay. Another thing though I promised a little while ago that I wanted to talk about ideology. Now this is something that takes a little time to work out right some of Trump's judges have only very recently been appointed again I'll give you a bit of data on that in a moment. Some have been there for three and a half years though, but it takes a while for data to be available for judges to get placed on the bench and to start making decisions that then political scientists can analyze to kind of see how do Trump's judges match up with other cohorts in terms of the ideology of their decision making. Fortunately for me, I have a couple of regular co authors in the form of Ken Manning and Bob Karp, who have been working on this for years and years and years. So what I'm showing you right here is a figure from a working paper that my two co authors were kind enough to allow me to participate in in a small way because they're the ones who are experts on on analyzing the ideology of lower court decision making. And let me explain a little bit further. What they're showing here are the percent liberal decisions by and here this graphic only shows district court judges in particular. So this graphic does not include decision making whether it's liberal or conservative by court of appeals judges, or by Supreme Court justices. It takes a while for data to become available and for there to be enough decisions made by the Trump cohort to make it to make any kind of statistical comparison meaningful. So we start with the district court judges here. What you can see is that overall, compared to any other administration going back to the Kennedy administration, Trump's judges are more conservative, at least so far. Ken Manning and Bob Karp and I to my contributions were much less significant than theirs, though, also parse this out in terms of issue area. So we divided it out based on how district court judges decided criminal justice cases, civil rights and liberties cases of course that's things like the First Amendment, gun rights, privacy issues, abortion cases would fall here, and then economic and labor relation cases. So let's look at the Trump cohort down here. Again, I think these data are meaningful, but this is still something that we would want to pay attention to moving forward as more judges as more of the Trump judges have more decisions behind them that we can analyze more fully. But a couple of main takeaways here. What you'll see is that in criminal justice in particular, the Trump cohort, compared to predecessors, is actually not that conservative. It's actually a little more liberal than even the cohort of judges appointed by Democratic, Democratic presidents. And this is something that Bob and Ken and I talked about a little bit in the fall. Why is that? Well, we only have some speculation here. One point of speculation is that President Trump himself was maybe not all that motivated by criminal law compared to the more kind of red meat culture war issues of civil liberties and rights or, you know, maybe things that parts of his base business entities were more interested in like economic and labor relations cases. Another hypothesis we have here is that the team that Trump put in place that had to help to basically take over the vetting and choosing of Trump's potential nominees. Those were people like Leonard Leo, who is long affiliated with the Federalist Society, and Don McGahn, and Trump's, at one time, Trump's White House legal counsel. Those people, you know, are maybe coming at this, Ken and Bob and I were wondering with maybe more of a libertarian strain to them. You know, not as interested in making sure that judges would be particularly conservative in criminal justice cases. But excuse me, but whatever the reason, it's kind of notable that in these early, in this early analysis, Trump's judges were actually not any more conservative at all and even more liberal in some ways than in criminal justice cases. But let's go over here to the red meat stuff, the civil liberties and civil rights cases. So far at least the Trump cohort is decidedly more conservative than any judicial cohort appointed since President Kennedy. Similarly, in the economic and labor relations cases, more conservative than any of the rest. So in terms of Trump's legacy, he's got a big legacy in terms of how many he's appointed. And it seems as though at least the early analysis is a big legacy in terms of appointing particularly conservative judges, particularly in the civil liberties and economic arenas. Okay, let's go ahead and move our attention to Biden here. I'm also going to talk a little bit about Biden's presidency and the judiciary, focusing on opportunities that Biden may have, and the early approach that he appears to be taking. Well, President Biden came into office with 49 vacancies sitting on the federal judiciary as I mentioned a little while ago there are always vacancies right, but Biden had far fewer than Trump had. He had over 100 Biden has less than half, not on the Supreme Court. That's not unusual. It's rare for a president to be inaugurated with a vacancy on the Supreme Court. But I think it's also notable that Biden only inherited two vacancies on those particularly important courts of appeals. And, and actually these numbers are not adding up here. And I apologize for that I'll have to think about that a little bit what what I've done incorrectly here. I have more more vacancies on the district courts, but not as many on the courts of appeals and I'll see I think I have a piece of paper here that I can refer to. So I'll come back to this and try to correct this for you as I move forward. But I mentioned McConnell's behavior, being relevant to Biden, Biden's presidency as well. Keep in mind that Mitch McConnell was the Senate majority leader, you know, and just just until a handful of weeks ago. His actions, along with Senator Lindsey Graham who at the time chaired the Senate Judiciary Committee are at least partially responsible for providing Biden with far less of an opportunity to impact the vacancy that impact the judiciary right out of the gate, that Trump had. For example, in in Trump's last year in office, McConnell, with the help of Lindsey Graham who was chairing the relevant committee in the Senate, confirmed nearly 50 judges, one to the Supreme Court that's Amy Coney Barrett, five to the appeals, and 43 to the district courts. Remember, I gave you data a little earlier that showed that Obama in his last year of office confer, got to see far fewer judges confirmed to all levels of the judiciary than this. And remember, I also told you that McConnell saw to it that no Obama nominees were confirmed after July of the elect of the presidential election year. The last Trump judge was confirmed on December 20, 2020. It is almost, not completely, but almost unprecedented in American history for a lame duck president who lost to the election to have judges keep being confirmed during the transition phase. Another thing to keep in mind is that if they had their way, McConnell and Graham might have had might have might have provided Trump with even more last minute appointees and Biden with even less potential opportunity moving forward. One thing that McConnell and Graham and other leading Republicans in Congress were doing in the closing year of the Trump presidency was strongly and publicly encouraging older judges appointed by Republican presidents to leave the bench. One thing that's worth mentioning here is this important aspect of something called senatorial courtesy. Senatorial courtesy I'm not going to get way in the weeds on this because I don't think it's necessary, but senatorial courtesy is kind of a semi retirement option that federal judges have, particularly for judges on the lower judiciary. I don't work the same way for Supreme Court justices so let's forget about the Supreme Court for a moment. If a judge takes senior status that judge gets to keep being a judge who hears cases, but that judges the terminology that's used here is that that active seat becomes available for the president to fill. So there is a strategy that can be employed here. If I was an older conservative judge on the district courts or the courts of appeals in say may of 2020, and I was contemplating taking senior status. I might as well go ahead and take senior status, because then President Trump could appoint my replacement, but I'd still get to be a judge working as a senior status judge. I also think that this is important to keep in mind how overt and even public. All of this was McConnell and Graham and others, encouraging federal judges to leave so that Trump could appoint their replacement, as opposed to kind of rolling the dice and waiting for what happened in the wake of the 2020 election. The last thing that's worth mentioning so so all of this is to help explain why Biden's opportunity is lesser than that of than that of Trump when he first came into office and I have the piece of paper, fortunately right that I pulled these numbers this 49 vacancies is wrong that's what is wrong here when President Biden came into office or at least in early January of this year. There were two vacancies on the courts of appeals and 43 on the district courts for a total of 45 not 49. Okay, obviously I think what I did was I confused the number confirmed with the number of vacancies here. Okay. But one of the things that's worth considering in terms of what kind of opportunities is Biden going to have so Biden has a little bit of an opportunity right away about 45 vacancies, but keep in mind, other judges might choose to leave the bench, either because they take senior status, or they get another job opportunity. One of those people for example is Merrick Garland himself, right, who is going to be who is Biden's attorney general, thus vacating his seat on the court of appeals. And of course, sometimes unfortunately judges die right so vacancies will continue to be created that Biden will be able to fill. But one thing that's worth keeping in mind here is the question of whether more liberal judges were trying to outlast President Trump, we're also engaging in strategy strategy in the form of waiting. We do if you are a liberal judge in May of 2020, you might have thought it best to wait out the Trump presidency, hope that Biden won the election, and then, you know file your retirement papers or your senior status papers then. Again, it's too early to try to parse this out right now. I see on my own Twitter feed sometimes you know lawyers and even journalists, making a big to do of this judge has already filed their retirement papers giving Biden the vacancy or that judge. That can be tricky because sometimes judges will file that paperwork months ahead of time, maybe even before the election, but the vacancy only becomes open, you know, let's say in January or February. That's not necessarily the same thing as a judge outlast trying to outlast Trump. That was perhaps a judge just deciding, I'm done it's time for me to retire. I'll file my papers effective six months from now and I don't really care who the President is. So again, I think it's way too early to parse this out, but myself and a whole lot of people who study things that I study are going to be paying attention to departure behavior of judges on the judiciary moving forward. Okay, other opportunities while we've already talked about active judges versus senior judges. I've already mentioned the question of whether active judges appointed by previous Democratic presidents might start filing their paperwork quickly, taking senior status or maybe even retiring in full handing their vacancy to Biden, but there's another person that we're all kind of paying attention to here. And it's this fellow, Justice Stephen Breyer, who is now in the wake of Ruth Bader Ginsburg's death. Breyer is both the oldest justice on the contemporary Supreme Court, and also the longest serving Democratic appointee currently on the US Supreme Court. So what about Stephen Breyer is going to be a question that I expect we will hear a lot about, especially in a few months. So let me just kind of show you in terms of the current Supreme Court. Now, their formal portrait has not yet been updated to have Barrett replace Ginsburg, but what I've provided here are just the ages of the current Supreme Court justices. Again, Breyer is by a full decade, the oldest member of the Supreme Court behind him is Clarence Thomas. But of course Clarence Thomas is, is perhaps with the exception of Alito the most conservative justice on the Supreme Court, probably unlikely to want to leave during a Biden presidency. But we're all going to be paying attention to Breyer moving forward, because he's both the oldest and the one from the liberal block that's probably more likely to leave. In particular, pay attention to this as the Supreme Court's term this year ends in June and July, because usually absent extraordinary circumstances when justices announced that they're going to leave the bench. They usually like to do so either just before or during the summer recess. So if we have not we being the American people have not heard from Breyer by June or July of this year. I fully expect to see lots of panicky think pieces, you know, written by liberals and bureaucrats of you know what is Breyer doing now is the time that he needs to leave the bench to allow Biden to appoint his replacement. Other things that are worth mentioning I have an eye on time so I'm going to wrap this up in just a few more minutes, but a couple of other really quick things about the opportunities available to Biden in terms of beginning to make a mark on the judiciary. There are strong signals that the Biden team is ready. Right. Articles touching on he's got his team in place. They are vetting potential nominees right now. They intend to act quickly when vacancies arise. If they successfully do this, and I think they will. This is important, because in recent years, Republican presidents have been much quicker at getting their judicial appointment teams up and running, because they care more about it. This was not a priority for the Clinton administration. It was not even so much of a priority for the Obama administration, at least the public signals that Biden is giving signal that he understands that appointing judges expeditiously whenever the opportunities have become available need to be a priority. And lastly, as I've already touched on, we don't know yet but there could be opportunities in the form of new judges. Maybe most notably Supreme Court Justice Breyer, but also through the senior status office to lower option to lower court judges. I've already mentioned this is just one example of a recent article kind of showing that Biden is ready to move quickly on this. I think another thing that's worth mentioning and here I'll go down to the third bullet point is that Biden is also particularly well set up as president to understand how to navigate this because Biden in his previous iteration as a senator served for many years as chair of the Senate Judiciary Committee. So Biden understands judicial appointment politics and how to approach that kind of thing. Last couple of things quickly here, the nuclear option is still in play on their own Republicans cannot stop any Biden appointees to any level of the judiciary. Similarly, Biden also enjoys but barely unified government because of the Georgia elections just earlier in January, Democrats control the Senate, but just barely. And the last thing that's worth mentioning here is that we also have a new chair for the Senate Judiciary Committee in the form of Dick Durbin. That's particularly important because based on seniority. That person should have been Diane Feinstein, but for a host of reasons, most notably or I think most pressingly her actions as the ranking member of the judiciary committee during Amy Coney Barrett's confirmation hearing this past fall. There was a lot of pressure put on Democrats put on Feinstein to step aside and let somebody else take that role. You might remember for example that at the end of Amy Coney Barrett's confirmation hearing, which were of course incredibly controversial so much so that Democrats did not even show up on the committee to vote on her appointment to move her her nomination to the full Senate. That's how contentious all of that was of course Feinstein ended the hearings by congratulating Lindsey Graham on what a great job he did holding the hearings and giving Lindsey Graham a hug. That is not what Democrats want to see out of their new chair of the Senate Judiciary Committee. So I think it's also going to be really important to watch Dick Durbin here and how he handles his pivotal role as the chair of the relevant committee on all of this. Okay, last thing about approach I think I've talked about most of this I do want to make one comment about Biden's bipartisan commission on the Supreme Court and judicial reform. Another thing that of course has gotten a lot of attention in recent weeks and months is whether if Democrats won the presidency and the Senate and retain the House, they would be interested in doing something dramatic, like adding seats to the Supreme Court or passing one of those big splashy judgeship acts that creates lots of new positions on the lower judiciary. My guess is that that's not going to happen. Right, the majority in the Senate is far too slim. People like Senator Kirsten Sinema, and especially Senator Joe Manchin has already said, you know, I'm not interested in stuff like that that's far too dramatic. It would require getting rid of the filibuster even more fully than the nuclear option has because creating judgeships is is sort of an act of Congress for which the filibuster is still in play, Republicans could prevent it to do something like that you need to get rid of the filibuster. Joe Manchin's not going to do that so I don't see anything dramatic like that happening, but Biden has established a bipartisan commission on Supreme Court and judicial reform. I'm not really going to say anything else about it right now, other than that will be another thing in the coming months to pay attention to, in terms of what that commission comes forward with for things like not just perhaps new judgeships, but maybe other ways of reforming the judiciary to try to lessen the partisan tensions and all of this. Lastly of course McConnell and Senate Republicans still have a role here. They can't filibuster judicial appointees, but they do have a role in judicial reform, and you know, it'll be interesting moving forward to see if Senate Republicans. Yeah, they can't stop appointees if all of the Democrats are in lockstep and want to vote to confirm and Harris can break all of those ties, but they can throw up a whole lot of other procedural roadblocks. It's interesting to see, you know, is it continue a war, or do McConnell and the Republicans kind of pull back a little bit and let the Democrats let Biden appoint some judges will have to see. And of course the Democrats majority in the Senate is most precarious. Anything could happen not only in 2022, but even between now and then right there is no margin for error in terms of Democrats control of the Senate. I want to watch for this year this is my last slide I promise on the Supreme Court's term for this year, while they're still hearing cases remotely that's kind of interesting. Probably the most high profile case on their agenda right now is the Affordable Care Act case, but they also have some heavy hitter cases on things like presidential power voting rights that kind of thing. I will want to pay attention to Barrett's first year on the court, continued attention to Gorsuch. As some of you might remember, Gorsuch was one of the pivotal votes, resulting in a liberal decision over title seven, which is a big piece of employment law and LGBTQ rights. Kavanaugh, and of course, John Roberts, right, John Roberts on many high profile cases the docket case last year that same title seven case dealing with LGBTQ rights, and an important gun rights case out of New York City last last winter. Robert's joined the liberal wing on all of those cases that'll be interesting to see. I've already touched on Biden's commission and McConnell's reaction and departures and continued attention to the influence of Trump's judges on the lower courts and of course on the Supreme Court as well. So the Trump cohort in addition to being less diverse was also pretty young. They're going to be there for a long time. So we're going to get to see how that plays out in terms of Trump's longer lasting legacy on the federal judiciary. And with that, I will stop my presentation I think what I'll do in my screen, so I can see all of this a little bit more. So let me go ahead. I gather Beth or Bjorn, please let me know otherwise, but my job here now is to go through some of these questions. So I will, I will reiterate the question very briefly, and then I'll do my best to answer it and I'll try to answer as many as I can in our waning minutes. Okay, the first question I see is, is there evidence that women are having an impact on the Supreme Court, the numbers or types of questions they ask the decisions they make. One thing about that that's important to keep in mind is that, kind of like I said about the Trump cohort you need a certain amount of data to be able to make meaningful conclusions about voting behavior of judges. And the unfortunate reality is that there just have not been that many women on the US Supreme Court, and in the period between O'Connor, the first woman on the Supreme Court appointed by Ronald Reagan, and Amy Coney Barrett appointed by Trump just this past fall. And all of the women appointed were appointed by Democrats. methodologically that's another, that's another confusing factor, because any analysis I might do of the female cohort on the Supreme Court is so dominated by Democrats that that kind of just muddles the statistical water, so to speak. What I can tell you is that there's a lot of research on gender and decision making on the lower courts, and it's kind of a mixed bag. What it's sort of what it shows generally is that women do have an impact, but it's perhaps a more subtle impact than you might think. And that that impact requires a certain critical capacity of women. You know one woman on a court of even three judges or certainly nine judges on the Supreme Court is maybe not going to have that much of an impact. But you get two out of three judges on a court of appeals panel, or three or four out of nine justices on the Supreme Court who are women. Well then then you might see a more dramatic effect. The last thing I'll say here is that, even though I do a lot of research in that statistical and the area of research that I'm in is very statistical. Sometimes the best you can do is anecdotal evidence. And here I will use one example from Ruth Bader Ginsburg that maybe move the needle maybe didn't but I think it's an important example. In that case, a number of years ago, dealing with a middle schools decision to kind of strip search a girl to see if she was carrying prescription ibuprofen on her. And Ginsburg spoke publicly about how I won't be able to replicate the genius eloquent way that she put it of course, but of something about how in the immediate aftermath of the oral argument in that case. And Ginsburg was disappointed that her male colleagues did seemingly did not understand the privacy implications of being a 12 or 13 year old girl who is getting strip searched by school administrators for ibuprofen. And she made she made that comment from time to time publicly about how perhaps some of my colleagues don't understand what it's like to be a 12 year old girl. And I would use that also as an example to get at that question, even though it's just an anecdote and not based on kind of carefully collected data that can give you a bigger fuller picture. Um, okay, I also see, let's see, are there guardrails that could be established to prevent minority input in appointing future judges. Yes, there are. First of all, again, the filibusters kind of out of play here. So Republicans at the end of the day, you know, so long as the Dems all stay in line, Republicans cannot prevent appointments to the Supreme Court. But there are lots of procedural tools they can use to take to slow things down. That's why Dick Durbin is important here, because he as the chair of the relevant committee has a lot of power in deciding things like do I let one senator hold up a whole appointment. So yes, there are tools that Republicans can use to slow things down. But as the Republicans showed us this past fall, a really determined leadership in the Senate can just change all of those rules or ignore all of those rules to get what they want. Okay, I see a bunch more questions over here. So let me go go over here. Since Biden may have only two years of Democratic majority. Would it make sense for him to act quickly to fill judicial vacancies. Absolutely. And not just because of the two years, although I think the person who asked that question is exactly right. I would actually and I don't want to be morbid here. But keep in mind that it could be two years but it could be two months it could be two weeks right. Somebody gets sick and can't show up to the Senate, or you know again here's the morbid part somebody in the Senate dies, like then all bets could be off. And then Biden wants to act quickly, because his hope is at least that more vacancies will keep coming right, Brian will leave this summer. Supreme Court appointments tend to suck up all the oxygen in the room, right, you know, other sitting judges will leave this summer. They want to get an early start also to clear the path for future vacancies to since Biden may have Democratic. Would it be wise to get that's the question I just did. Oh yeah, Ruth Bader Ginsburg received some criticism for not stepping down from the court when Obama was still in office. She believed that Hillary Clinton would succeed. Yep, I heard her say that too. But if RBG had left the court in the latter part of Obama's term, couldn't the Republican led Senate have delayed action on a replacement for her as well. Yeah they could have. And that was one thing here I will point to Ted Cruz. He's still on the Senate Judiciary Committee and of course is a member as a kind of a, he's not in the leadership but is a very visible member of the Republican cohort in the Senate. At one point when the 2016 election was still in the works it hadn't actually happened yet. Ted Cruz floated the idea of if Hillary's elected will just hold Scalia's vacancy open for four years. I would have done that but yes, I think that question is is kind of right on on the mark. The question went on to ask and thus giving Trump to immediate vacancies to fill upon assuming office, perhaps, you know, I think there's a lot of could of what should up with Ginsburg. Why did Ginsburg not leave the court when the leaving was good as that question or all you know already prefaced. She thought Hillary Clinton was going to win has did most everybody right, but she also said at the time, there's no way that President Obama would be able to appoint somebody like me. And what she meant by that was somebody with her activist background that the politics had changed so much that she was also convinced that if she had left the court, she would have been replaced by a much, kind of a much more version of herself. So yeah, I think in retrospect, you can point to Ginsburg deciding not to leave as a mistake, but you can't perfectly predict the future as that very thoughtful question lays out. Ah, how do you define a liberal decision. Excellent question I'll do this really quickly. So people scientists have decided it is not without controversy, but what we have decided to coalesce behind is an objective criteria where certain votes are categorized as liberal or conservative. There are no gradations in between. It's either liberal or conservative based on standards that we've agreed upon ahead of time. So for example, in cases that deal with the rights of the criminally accused of vote in favor of the of the criminally accused is defined as liberal a vote in favor of the government in a criminal case is defined as conservative. As I've mentioned this is not without controversy, and it is a very blunt measure. Again, there are no gradations between them. You know how we think of gradations working out is that if you look at each judges accumulated voting record, you see some handing down far more conservative decisions, a more mix of decisions or more liberal decisions but that's how we do it. That's a good question. The circuits of the two current vacancies that's a good question I don't know off the top of my head I was thinking about that this morning, where they come from how long of those vacancies been active. I didn't, I didn't have a chance to look that up that's a good question. I decide to retire based on who is president and who will decide on their replacement. In terms of what I call the judicial vacancy literature, the, the scholarly work on questions of when do judges, Supreme Court or otherwise depart the bench. That's the million dollar question. And again, the answer is sort of a mixed bag, and it's a mixed bag because sometimes judges do not have the opportunity to act as strategically as they would have liked. Let me give you an example that we just talked about. She became vacant during the Trump administration, but that was not through any immediate active choice of hers right what she was trying to do pretty clearly was outlast the Trump administration. She was not able to do so. Scalia was not able to outlast the Obama administration. A number of years ago, or good Marshall was not able to outlast the Reagan and HW Bush administrations. So the statistical findings here are always a little muddled because we think that judges, some at least do at least think about who the president is. Some think about who the president is a lot, but sometimes even those who care about who the president is do not have full opportunity to kind of outlast outwait a president they may not like. I only have a few minutes left and I know that we need to end on time so let me try to tick off a few more questions really quickly. Confirming right wing judges was a big part of the Republican playbook it absolutely was a major project I'm working on right now touches on why it is that judges are so much more important to Republicans and to the Republican base than Democrats I think that's absolutely true. Ooh, if Trump is convicted in the impeachment can his judicial appointments be voided. Well, we have no case studies no precedent no history of a an impeached and convicted president to work off of, but I can still say with assurance that the answer that question is no. These judges would still have lifetime appointments to the judiciary. Do senior status judges here and decide cases, thus making the bench in that circuit larger for lower court cases. Yes, they do so yeah I think the person who asked that question has figured out the kind of the trick here is that if I'm on a court of appeals, and I take senior status, I get to keep hearing cases. My replacement is added to the bench. And then until I retire or die, the two of us get to keep hearing cases together, thus expanding at least temporarily, the number of judges ships on that circuit. And I see that Carol is back so I'm going to presume that we are out of time for questions. I couldn't get to the rest of yours. These are phenomenal questions. Lisa, thanks so much. We love having you and we hope you'll come back really soon. Thank you. Thank you. Thank you very much. Thanks for inviting me invite me back anytime. We'd love it. Bye bye. Bye bye.