1 00:00:03,080 --> 00:00:08,280 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:09,520 --> 00:00:14,360 Speaker 1: The Supreme Court justices expressed wariness during oral arguments about 3 00:00:14,440 --> 00:00:18,759 Speaker 1: opening Internet companies to lawsuits stemming from harmful user posts. 4 00:00:18,920 --> 00:00:22,800 Speaker 1: The justices were hearing a case challenging section two thirty 5 00:00:22,920 --> 00:00:26,920 Speaker 1: of the Communications Decency Act, it protects online companies from 6 00:00:26,960 --> 00:00:30,680 Speaker 1: being sued over the comments, ads, pictures, and videos on 7 00:00:30,720 --> 00:00:34,400 Speaker 1: their platforms. The case involved a twenty three year old 8 00:00:34,520 --> 00:00:37,600 Speaker 1: US citizen who was one of one hundred thirty people 9 00:00:37,760 --> 00:00:40,800 Speaker 1: killed in attacks by the Islamic State group in Paris 10 00:00:41,200 --> 00:00:44,919 Speaker 1: in November of twenty eighteen. Her family says Google, through 11 00:00:44,960 --> 00:00:49,519 Speaker 1: its algorithm driven YouTube recommendations, aided the Islamic State in 12 00:00:49,680 --> 00:00:53,559 Speaker 1: violation of the US Anti Terrorism Act, but Justice Clarence 13 00:00:53,600 --> 00:00:57,680 Speaker 1: Thomas suggested that companies can't be sued if their recommendation 14 00:00:57,800 --> 00:01:01,720 Speaker 1: algorithms are neutral about the kind of content they promote. 15 00:01:02,240 --> 00:01:05,240 Speaker 1: If it's the same algorithm, I think you have to 16 00:01:05,319 --> 00:01:09,160 Speaker 1: give us a clear example of what your point is. 17 00:01:09,200 --> 00:01:14,959 Speaker 1: Exactly the same algorithm to present cooking videos to people 18 00:01:15,000 --> 00:01:19,959 Speaker 1: who are interested in cooking and ISIS videos the people 19 00:01:19,959 --> 00:01:23,920 Speaker 1: who are interested in ISIS racing videos the people who 20 00:01:23,920 --> 00:01:26,840 Speaker 1: are interested in racing. Then I think you're going to 21 00:01:26,920 --> 00:01:30,080 Speaker 1: have to explain more clearly if it's neutral in that way, 22 00:01:30,640 --> 00:01:35,160 Speaker 1: how your claim is set Apart from that. Joining me 23 00:01:35,240 --> 00:01:37,880 Speaker 1: is Harold Crant, a professor at the Chicago Kent College 24 00:01:37,880 --> 00:01:40,480 Speaker 1: of Law. Before we talk about the Supreme Court arguments, 25 00:01:40,520 --> 00:01:44,840 Speaker 1: just explain what the case is about. This case concerns 26 00:01:44,840 --> 00:01:50,920 Speaker 1: a action under the Terrorist Statutes directed against Google, who 27 00:01:50,960 --> 00:01:56,760 Speaker 1: operates YouTube, for aiding and abetting terrorism. The argument in 28 00:01:56,800 --> 00:02:01,400 Speaker 1: this case was that YouTube, by suggesting certain videos, helps 29 00:02:01,520 --> 00:02:06,440 Speaker 1: radicalize people and helps therefore helps aids ISIS into recruiting 30 00:02:06,480 --> 00:02:11,480 Speaker 1: new members. And the legal issue that arises out of 31 00:02:11,520 --> 00:02:15,000 Speaker 1: this challenge is whether or not a cause of action 32 00:02:15,200 --> 00:02:20,840 Speaker 1: can be maintained against Google for fostering sharing of these videos, 33 00:02:20,880 --> 00:02:23,520 Speaker 1: and then, if so, whether a proper cause of action 34 00:02:23,880 --> 00:02:28,799 Speaker 1: has been pled. The first issue revolves around the Community 35 00:02:28,880 --> 00:02:33,760 Speaker 1: Decencies Act Section to thirty, immunity for Internet computer services 36 00:02:33,840 --> 00:02:39,440 Speaker 1: when they simply allow for external videos to be seen 37 00:02:39,760 --> 00:02:43,360 Speaker 1: or retrieved from their site. And to thirty was a 38 00:02:43,480 --> 00:02:47,320 Speaker 1: key instrument in trying to develop the Internet by allowing 39 00:02:47,680 --> 00:02:53,000 Speaker 1: platforms to allow others to publish videos and other works 40 00:02:53,040 --> 00:02:56,640 Speaker 1: on sites without then letting the platform be sued in 41 00:02:56,720 --> 00:03:00,640 Speaker 1: case some of those informations were in this case terrorism, 42 00:03:00,680 --> 00:03:05,880 Speaker 1: but in other cases involving defamation, or involving trademark infringement 43 00:03:06,160 --> 00:03:10,320 Speaker 1: and so forth. So by immunizing the platforms, they really 44 00:03:10,360 --> 00:03:14,520 Speaker 1: gave rise to the twitters that facebooks, the Googles of 45 00:03:14,560 --> 00:03:18,520 Speaker 1: the world, which can basically then grab all this material 46 00:03:19,000 --> 00:03:22,160 Speaker 1: or have all this material be deposit on their site 47 00:03:22,360 --> 00:03:24,959 Speaker 1: and therefore available for those of us who want to 48 00:03:25,160 --> 00:03:28,639 Speaker 1: search for things, or want to contact friends or see 49 00:03:28,760 --> 00:03:32,079 Speaker 1: as in this case videos. Did it strike you that 50 00:03:32,080 --> 00:03:36,240 Speaker 1: there were some top concerns that the justices had about 51 00:03:36,240 --> 00:03:39,640 Speaker 1: the plaintiff's lawsuit. Absolutely, this is one of these few 52 00:03:39,680 --> 00:03:43,600 Speaker 1: cases where I don't think that the justices were hiding 53 00:03:44,240 --> 00:03:47,840 Speaker 1: us of beliefs. I think that their inclination to rule 54 00:03:48,360 --> 00:03:51,720 Speaker 1: on behalf of the defendant was quite clear. But the 55 00:03:51,760 --> 00:03:55,360 Speaker 1: issue remains about which type of decision they may want 56 00:03:55,360 --> 00:03:58,200 Speaker 1: to issue. And let me break that down into two parts, 57 00:03:58,320 --> 00:04:01,280 Speaker 1: because the first part was whether or not Google can 58 00:04:01,320 --> 00:04:04,240 Speaker 1: be protected by Section two thirty or not, and the 59 00:04:04,280 --> 00:04:07,640 Speaker 1: second is whether there is a valid cause of action pled. 60 00:04:08,160 --> 00:04:10,840 Speaker 1: It's pretty clear to me that the Court is going 61 00:04:10,880 --> 00:04:14,680 Speaker 1: to say that if you just have an algorithm recommend 62 00:04:14,840 --> 00:04:18,200 Speaker 1: a video that's not aiding and embedding. So I think 63 00:04:18,240 --> 00:04:22,160 Speaker 1: that there was no inclination amongst the justices to be 64 00:04:22,240 --> 00:04:25,919 Speaker 1: sympathetic with plaintiffs in that respect, and on that issue 65 00:04:26,040 --> 00:04:28,760 Speaker 1: they said, look, I mean, you can say look at 66 00:04:28,760 --> 00:04:31,120 Speaker 1: this video, or you can say you might want to 67 00:04:31,160 --> 00:04:34,000 Speaker 1: see this video, or you can say go over there 68 00:04:34,000 --> 00:04:36,440 Speaker 1: and look at a stack of books. That's simply not 69 00:04:36,800 --> 00:04:40,640 Speaker 1: enough to state any kind of tortious behavior. So I 70 00:04:40,640 --> 00:04:44,040 Speaker 1: think on the ultimate issue of whether a tort was committed, 71 00:04:44,440 --> 00:04:46,880 Speaker 1: the court may just say, no, we don't need to 72 00:04:46,920 --> 00:04:50,880 Speaker 1: reach the more difficult and tractable issue of how large 73 00:04:50,960 --> 00:04:54,240 Speaker 1: it is community created by section two thirty. But much 74 00:04:54,240 --> 00:04:56,920 Speaker 1: of the argument was spent on what should we do 75 00:04:57,279 --> 00:05:00,680 Speaker 1: as a court about the scope of two thirty immunity 76 00:05:00,680 --> 00:05:03,640 Speaker 1: because the sort of algorithms that are used by Google 77 00:05:03,680 --> 00:05:07,479 Speaker 1: and Twitter, Facebook in terms of Facebook feeds certainly didn't 78 00:05:07,480 --> 00:05:10,359 Speaker 1: exist at the time that the community decency at Community 79 00:05:10,680 --> 00:05:12,719 Speaker 1: was put into effect. So much of the discussion than 80 00:05:12,760 --> 00:05:15,960 Speaker 1: we evolved around how do we draw a line between 81 00:05:16,520 --> 00:05:22,200 Speaker 1: when a platform says this video is available or the 82 00:05:22,279 --> 00:05:25,520 Speaker 1: platform says you might want them to see this video, 83 00:05:25,920 --> 00:05:29,680 Speaker 1: or the platform says you may like this video, is 84 00:05:29,760 --> 00:05:34,080 Speaker 1: dead enough to lose immunity, because then it's as if 85 00:05:34,160 --> 00:05:38,240 Speaker 1: the platform becomes a publisher by saying you're going to 86 00:05:38,320 --> 00:05:42,800 Speaker 1: like this video, and no one knows. Lots of hypotheticals 87 00:05:42,800 --> 00:05:45,400 Speaker 1: were raised, but it's the kind of case where at 88 00:05:45,440 --> 00:05:48,320 Speaker 1: the end of the day, as some of Justice has said, 89 00:05:48,400 --> 00:05:50,880 Speaker 1: if this is so difficult, and this may cause such 90 00:05:51,000 --> 00:05:55,360 Speaker 1: a risk to the continued development of the Internet, maybe 91 00:05:55,400 --> 00:05:58,440 Speaker 1: we should let Congress make these difficult lines and we 92 00:05:58,440 --> 00:06:01,240 Speaker 1: shouldn't try to ourselves. Did it seem to you as 93 00:06:01,279 --> 00:06:08,160 Speaker 1: if the justices just didn't even accept the plaintiff's basic argument, 94 00:06:08,440 --> 00:06:13,040 Speaker 1: Justice Alito said, I admit, I'm completely confused by whatever 95 00:06:13,279 --> 00:06:16,800 Speaker 1: argument you're making at the present time. Well, I mean, 96 00:06:16,800 --> 00:06:19,720 Speaker 1: I think that the difficulty was that the Council for 97 00:06:19,760 --> 00:06:22,960 Speaker 1: the Plane of backtracked from much that was in their 98 00:06:23,040 --> 00:06:26,080 Speaker 1: brief and try to make a much more narrow argument 99 00:06:26,120 --> 00:06:29,680 Speaker 1: that he thought was more defensible, And he basically said 100 00:06:29,720 --> 00:06:32,560 Speaker 1: that there was no duty on the platform to take 101 00:06:32,600 --> 00:06:37,160 Speaker 1: down the videos, and that the Google was not couldn't 102 00:06:37,200 --> 00:06:41,840 Speaker 1: be civilly liable simply for housing the videos, even if 103 00:06:41,839 --> 00:06:45,719 Speaker 1: they were an incitement to terrorism. What he argued instead 104 00:06:45,920 --> 00:06:50,800 Speaker 1: was a more narrow version is that by reorganizing the videos, 105 00:06:51,240 --> 00:06:56,120 Speaker 1: by prioritizing videos through this algorithm, that then that crossed 106 00:06:56,120 --> 00:07:01,520 Speaker 1: the line in terms of Google becoming a publisher and 107 00:07:01,760 --> 00:07:05,840 Speaker 1: therefore no longer subject to the immunity created by Section 108 00:07:05,920 --> 00:07:07,960 Speaker 1: two thirty. And that's why I think through a lot 109 00:07:08,000 --> 00:07:11,000 Speaker 1: of the justices off the more narrow version of the 110 00:07:11,160 --> 00:07:16,560 Speaker 1: argument that plaintiff was raising. The concern before the oral 111 00:07:16,680 --> 00:07:20,840 Speaker 1: arguments was that this would open Google and Internet platforms 112 00:07:21,000 --> 00:07:24,600 Speaker 1: up to all kinds of lawsuits. Was that addressed in 113 00:07:24,600 --> 00:07:28,720 Speaker 1: the oral arguments? Absolutely? I mean the number of briefs 114 00:07:28,760 --> 00:07:33,000 Speaker 1: were filed that raised a parade of horribles that Google 115 00:07:33,240 --> 00:07:37,160 Speaker 1: and Facebook will be subject to defamation cases, subject to 116 00:07:37,240 --> 00:07:43,480 Speaker 1: privacy cases, trademark cases, if Section too thirty immunity was 117 00:07:43,840 --> 00:07:46,640 Speaker 1: tampered with. And I think the reason is that it's 118 00:07:46,720 --> 00:07:49,560 Speaker 1: so difficult to figure out what it is where the 119 00:07:49,600 --> 00:07:54,280 Speaker 1: line is between a platform simply saying come look at 120 00:07:54,280 --> 00:07:56,880 Speaker 1: the videos here. That's what people do to sell things, 121 00:07:56,920 --> 00:08:00,480 Speaker 1: they publicize them, and when is it okay? Besides and 122 00:08:00,480 --> 00:08:03,360 Speaker 1: say you may be interested in this article or this 123 00:08:03,680 --> 00:08:07,680 Speaker 1: video as opposed to when you actually becoming caruts with 124 00:08:07,960 --> 00:08:12,600 Speaker 1: the video because you prioritize it in some ways. And 125 00:08:12,600 --> 00:08:15,880 Speaker 1: the Narrow arguments that the plaint of game was by 126 00:08:16,120 --> 00:08:20,640 Speaker 1: giving a little thumbnail that YouTube creates in other ways, 127 00:08:20,680 --> 00:08:23,520 Speaker 1: just a little brief sort of taste of what the 128 00:08:23,640 --> 00:08:27,840 Speaker 1: video is. That that really crossed the line. And then 129 00:08:28,080 --> 00:08:30,680 Speaker 1: YouTube became just as if it was creating something. It 130 00:08:30,760 --> 00:08:33,800 Speaker 1: was creating like a mini advertisement, and that little mini 131 00:08:33,840 --> 00:08:37,600 Speaker 1: advertisement was enough to give rise to liability and to 132 00:08:37,679 --> 00:08:40,959 Speaker 1: avoid immunity. And the United States is the meekest was 133 00:08:41,000 --> 00:08:44,160 Speaker 1: sympathetic to that view. The United States clearly said there's 134 00:08:44,200 --> 00:08:47,280 Speaker 1: not enough for itting and a betting liability here. But 135 00:08:47,360 --> 00:08:50,040 Speaker 1: the United States says, you know, look, once you create 136 00:08:50,080 --> 00:08:54,480 Speaker 1: any kind of semi advertising platform, be it through a 137 00:08:54,920 --> 00:08:56,959 Speaker 1: you should look at this first. To come here and 138 00:08:57,080 --> 00:09:02,359 Speaker 1: look at this new video. You're responsible for that that product, 139 00:09:02,440 --> 00:09:06,160 Speaker 1: for that kind of statement yourself, and then you're no 140 00:09:06,200 --> 00:09:11,200 Speaker 1: longer immune for at least that kind of advertising or 141 00:09:11,200 --> 00:09:17,600 Speaker 1: promotions prioritization or organization, even if you still remain immune 142 00:09:17,600 --> 00:09:21,160 Speaker 1: from liability for the video itself. Do you think that 143 00:09:21,679 --> 00:09:26,360 Speaker 1: the justices can come to a decision here without specifically 144 00:09:26,440 --> 00:09:30,280 Speaker 1: ruling on section two thirty. So the court has a 145 00:09:30,320 --> 00:09:32,440 Speaker 1: couple of different options in front of it. First of all, 146 00:09:32,520 --> 00:09:34,360 Speaker 1: coag just say, whatever is going on in this case, 147 00:09:34,600 --> 00:09:38,360 Speaker 1: there's no aiding and abetting liability here, So we reserve 148 00:09:38,400 --> 00:09:42,280 Speaker 1: the right to questions the scope of two thirty immunity 149 00:09:42,760 --> 00:09:45,800 Speaker 1: for a different day. That's one option. Another option is 150 00:09:45,840 --> 00:09:49,280 Speaker 1: they can say, this is a difficult line drawing issue 151 00:09:49,360 --> 00:09:53,000 Speaker 1: about when does a platform liability not become a publisher 152 00:09:53,040 --> 00:09:56,800 Speaker 1: through its organizational and prioritization of other work, and they 153 00:09:56,800 --> 00:09:59,599 Speaker 1: can try to find a line. A line not surprisingly 154 00:09:59,679 --> 00:10:04,640 Speaker 1: drawn by Google was that if the harm comes from 155 00:10:04,679 --> 00:10:10,120 Speaker 1: the prioritization, where the harm comes from the publicizing, then 156 00:10:10,240 --> 00:10:12,520 Speaker 1: there should be no immunity. But of course that's a 157 00:10:12,559 --> 00:10:16,120 Speaker 1: convenient test for Google because that googleman's in almost every case, 158 00:10:16,720 --> 00:10:19,600 Speaker 1: not every case, but almost every case. The other third 159 00:10:19,640 --> 00:10:22,800 Speaker 1: tech the court could just take was this is a 160 00:10:22,840 --> 00:10:26,240 Speaker 1: new issue that Congress has not fully fought through when 161 00:10:26,240 --> 00:10:30,000 Speaker 1: it passed the Communications Decency Act. It's very difficult. We 162 00:10:30,000 --> 00:10:34,199 Speaker 1: have a new age of AI and other kinds of algorithms, 163 00:10:34,320 --> 00:10:36,839 Speaker 1: and we're going to let Congress take the lead if 164 00:10:36,880 --> 00:10:39,920 Speaker 1: it wants to change the immunity for platforms such as 165 00:10:40,200 --> 00:10:44,480 Speaker 1: Twitter and Google. Did anyone mention the original authors of 166 00:10:44,559 --> 00:10:49,480 Speaker 1: section two thirty Oregon Democratic Senator Ron widen In former 167 00:10:49,600 --> 00:10:55,360 Speaker 1: California Republican Representative Chris Cox explained they're thinking behind the 168 00:10:55,440 --> 00:10:59,520 Speaker 1: legislation in a brief to the court, and they said 169 00:10:59,600 --> 00:11:05,080 Speaker 1: that algorithmic recommendations are direct descendants of the early content 170 00:11:05,240 --> 00:11:09,199 Speaker 1: curation efforts that Congress had in mind when enacting section 171 00:11:09,320 --> 00:11:12,319 Speaker 1: to thirty. Does that have any relevance at all? Was 172 00:11:12,320 --> 00:11:16,120 Speaker 1: that mentioned at all? So the names of the sponsors 173 00:11:16,120 --> 00:11:18,959 Speaker 1: of the Community Decency Act were not mentioned in to 174 00:11:19,080 --> 00:11:22,120 Speaker 1: my recall, but there was some discussion of that kind 175 00:11:22,120 --> 00:11:25,800 Speaker 1: of legislative history, that the drafters that bill were aware 176 00:11:26,080 --> 00:11:30,560 Speaker 1: of algorithmic type uses. They didn't dominate at the time, 177 00:11:31,000 --> 00:11:33,680 Speaker 1: but they were around in their infancy. And so the 178 00:11:33,800 --> 00:11:37,880 Speaker 1: question is, then, if the drafters were aware of the 179 00:11:37,960 --> 00:11:42,360 Speaker 1: potential for algorithms, were they trying to protect those as well? 180 00:11:42,600 --> 00:11:45,920 Speaker 1: About the use of language in the immunity section. And 181 00:11:45,960 --> 00:11:49,199 Speaker 1: it was interesting because you know, the community Section can 182 00:11:49,240 --> 00:11:52,240 Speaker 1: be interpreted different ways. It can be interpreted through the 183 00:11:52,320 --> 00:11:55,559 Speaker 1: lens of common law deformation actions, it can be interpreted 184 00:11:55,600 --> 00:11:58,600 Speaker 1: through the brief language that's in the immunity section as well. 185 00:11:58,640 --> 00:12:00,680 Speaker 1: And so there was some effort not only looking at 186 00:12:00,760 --> 00:12:03,880 Speaker 1: legislative history, but looking at the plain language as well 187 00:12:03,920 --> 00:12:07,360 Speaker 1: as common law and the students of this immunity section. 188 00:12:07,559 --> 00:12:08,960 Speaker 1: But I think at the end of the day, those 189 00:12:09,040 --> 00:12:11,440 Speaker 1: arguments are not going to win out. I think the 190 00:12:11,520 --> 00:12:15,080 Speaker 1: question is really that the court was stumbling on, is okay, 191 00:12:15,160 --> 00:12:18,960 Speaker 1: theoretically there are some bad algorithms out there. Everybody agreed 192 00:12:19,240 --> 00:12:22,480 Speaker 1: that if an algorithm tend to do differentiate on the 193 00:12:22,520 --> 00:12:25,960 Speaker 1: basis of race, for instance, that then the platforms would 194 00:12:25,960 --> 00:12:30,400 Speaker 1: not escape liability because then the harm would be caused 195 00:12:30,679 --> 00:12:34,560 Speaker 1: by the algorithm itself. But at what point would a 196 00:12:34,640 --> 00:12:38,080 Speaker 1: neutral algorithm? And everybody agreed that this algorithm that was 197 00:12:38,160 --> 00:12:42,160 Speaker 1: challenge was neutral in the sense that it treated people 198 00:12:42,240 --> 00:12:47,720 Speaker 1: liking pet cats and the terrorists videos the same in 199 00:12:47,840 --> 00:12:50,319 Speaker 1: terms of how the algorithm works. That at what point 200 00:12:50,320 --> 00:12:53,800 Speaker 1: would sort of a neutral algorithm be subject to suit 201 00:12:54,240 --> 00:12:57,120 Speaker 1: was the question, and how do you draw the line? 202 00:12:57,320 --> 00:13:00,560 Speaker 1: And that was daunting, I think at over our both 203 00:13:00,640 --> 00:13:05,120 Speaker 1: to the attorneys representing their parties as well as to 204 00:13:05,240 --> 00:13:07,840 Speaker 1: the justices. And so again I think The three choices 205 00:13:07,880 --> 00:13:11,840 Speaker 1: are the court may just pump and say will await Congress. 206 00:13:12,120 --> 00:13:14,640 Speaker 1: They can try to draft some kind of wine itself 207 00:13:14,679 --> 00:13:17,960 Speaker 1: which did not come clearly through a dooral argument, or 208 00:13:18,040 --> 00:13:21,000 Speaker 1: they can just avoid the whole question by saying, whatever 209 00:13:21,040 --> 00:13:23,720 Speaker 1: this is, there's no aiding and betting going on here, 210 00:13:24,080 --> 00:13:27,040 Speaker 1: simply by use of an algorithm, So we don't have 211 00:13:27,080 --> 00:13:31,000 Speaker 1: to talk about or reach the scope of immunity under 212 00:13:31,040 --> 00:13:35,480 Speaker 1: their Community Decency Act. Was it surprising? Justice Amy Coney 213 00:13:35,520 --> 00:13:40,559 Speaker 1: Barrett asked the plaintiff's attorney to confirm that the legal 214 00:13:40,600 --> 00:13:46,400 Speaker 1: theory he was advancing would not protect individual Internet users retweeting, sharing, 215 00:13:46,520 --> 00:13:50,880 Speaker 1: or liking other people's content, and he said that it 216 00:13:50,920 --> 00:13:56,720 Speaker 1: would cover people retweeting or liking. Justice Barrett asked about 217 00:13:56,720 --> 00:14:02,520 Speaker 1: whether retweeting could land someone in jeopardy for retweeting a 218 00:14:02,559 --> 00:14:06,520 Speaker 1: defamatory statement, and other justices chimed in that that's a 219 00:14:06,559 --> 00:14:11,480 Speaker 1: difficulty because in terms of if you republish a defamatory 220 00:14:11,760 --> 00:14:14,480 Speaker 1: statement in the newspaper, the newspaper can also be sued 221 00:14:14,720 --> 00:14:18,800 Speaker 1: for defamation. So the council had to wrestle with that 222 00:14:19,200 --> 00:14:23,960 Speaker 1: because there is a possibility that if the plaintiff's theory 223 00:14:24,000 --> 00:14:28,360 Speaker 1: of the case were accepted that those who retweeted thoughtlessly 224 00:14:28,840 --> 00:14:33,600 Speaker 1: might be subject to lawsuits as well, But everybody hastened 225 00:14:33,640 --> 00:14:38,440 Speaker 1: to add that's not directly at stake in this particular case. 226 00:14:38,480 --> 00:14:42,120 Speaker 1: Because this case had to do with not republishing, but 227 00:14:42,360 --> 00:14:48,600 Speaker 1: rather platform organizing or platform prioritization of videos for others 228 00:14:48,600 --> 00:14:51,960 Speaker 1: to watch. The Court didn't have to take this case 229 00:14:52,000 --> 00:14:54,240 Speaker 1: because there wasn't a split in the circuits. Why do 230 00:14:54,240 --> 00:14:57,360 Speaker 1: you think they took this case and the Twitter case? 231 00:14:58,320 --> 00:15:02,840 Speaker 1: So I've wondered why the court accepted this case, and 232 00:15:03,560 --> 00:15:06,880 Speaker 1: I haven't come up with a very convincing response in 233 00:15:06,920 --> 00:15:10,040 Speaker 1: my own mind with this caveat. There is such a 234 00:15:11,000 --> 00:15:14,800 Speaker 1: controversy brewing on the political parties about big tech and 235 00:15:14,880 --> 00:15:19,240 Speaker 1: if big tech is good or bad for the country, 236 00:15:19,520 --> 00:15:23,280 Speaker 1: and two thirty immunity was one of the major arguments 237 00:15:23,320 --> 00:15:26,480 Speaker 1: that has been booted back and forth by the political 238 00:15:26,520 --> 00:15:28,560 Speaker 1: parties as to whether or not it's a good or 239 00:15:28,640 --> 00:15:31,640 Speaker 1: bad thing, and whether or not it's letting big tech 240 00:15:31,920 --> 00:15:34,640 Speaker 1: get away with too much. So this may have been 241 00:15:34,680 --> 00:15:37,880 Speaker 1: a first effort for the court, in its own mind, 242 00:15:37,920 --> 00:15:41,600 Speaker 1: to be responsible and try to wrestle with two thirty. 243 00:15:41,800 --> 00:15:45,680 Speaker 1: In order to sort of depoliticize to some extent the 244 00:15:45,800 --> 00:15:48,240 Speaker 1: role of big tech in our country. I don't know 245 00:15:48,240 --> 00:15:51,680 Speaker 1: if theory has any kind of legs, but if so, 246 00:15:52,480 --> 00:15:54,360 Speaker 1: I think that big tech is going to look pretty 247 00:15:54,360 --> 00:15:57,200 Speaker 1: good after this case is over. I know that Justice 248 00:15:57,240 --> 00:16:01,080 Speaker 1: any Coney Barrett did talk about the case against Twitter. 249 00:16:01,240 --> 00:16:03,160 Speaker 1: So if you lose tomorrow, do we even have to 250 00:16:03,200 --> 00:16:06,360 Speaker 1: reach the section to thirty question here? How much did 251 00:16:06,600 --> 00:16:10,240 Speaker 1: the case against Twitter come up? The case against Twitter 252 00:16:10,280 --> 00:16:12,800 Speaker 1: came up a lot because the kids against Twitter it 253 00:16:12,880 --> 00:16:16,760 Speaker 1: revolves around the question of the validity of the aiding 254 00:16:16,800 --> 00:16:23,240 Speaker 1: and abetting argument, and the courts seemed to overwhelmingly oppose 255 00:16:23,360 --> 00:16:26,560 Speaker 1: the notion the Twitter or any other platforom can aid 256 00:16:26,600 --> 00:16:32,400 Speaker 1: in a bet merely by offering someone to view a 257 00:16:32,520 --> 00:16:35,640 Speaker 1: incendury in this case, an incendury video in another case 258 00:16:35,640 --> 00:16:39,200 Speaker 1: it could be some kind of defamatory tweet or something 259 00:16:39,400 --> 00:16:42,880 Speaker 1: else along those lines. That aiding and betting have to 260 00:16:42,920 --> 00:16:47,080 Speaker 1: be much more according to the court. So I'm not 261 00:16:47,160 --> 00:16:50,120 Speaker 1: sure what there's going to be for argument for two 262 00:16:50,120 --> 00:16:53,120 Speaker 1: hours tomorrow because it looks like most of that argument 263 00:16:53,360 --> 00:16:56,240 Speaker 1: already took place here. But you know, maybe the court 264 00:16:56,240 --> 00:16:59,160 Speaker 1: will have some twists and turns to cover to make 265 00:16:59,240 --> 00:17:02,240 Speaker 1: up for something that they regret not covering. From what 266 00:17:02,280 --> 00:17:04,440 Speaker 1: you're saying and from what the Justice has said, it's 267 00:17:04,600 --> 00:17:09,160 Speaker 1: it sort of seems like a very logical conclusion that 268 00:17:09,240 --> 00:17:13,040 Speaker 1: you know, just by having these algorithms, you're not aiding 269 00:17:13,040 --> 00:17:16,280 Speaker 1: in a betting terrorism. It does. On the other hand, 270 00:17:16,640 --> 00:17:21,879 Speaker 1: but for YouTube, but for Facebook, terrorists might not be 271 00:17:21,920 --> 00:17:25,440 Speaker 1: able to operate so freely and more people now see 272 00:17:26,040 --> 00:17:30,640 Speaker 1: provisis videos and ever could have before because of Internet 273 00:17:30,680 --> 00:17:36,160 Speaker 1: platforms like YouTube and Facebook. And that's that's the danger here. 274 00:17:36,400 --> 00:17:37,919 Speaker 1: I mean, it is true that in terms of you 275 00:17:38,080 --> 00:17:43,800 Speaker 1: just looked at common sense responsibility for aiding terrorism, platforms 276 00:17:43,840 --> 00:17:46,480 Speaker 1: do it, and there's no question about it. But whether 277 00:17:46,520 --> 00:17:49,560 Speaker 1: there's criminal liability or even whether there's civil liability under 278 00:17:49,600 --> 00:17:52,600 Speaker 1: the aid terrorist statues, I think that's a that's a 279 00:17:52,640 --> 00:17:55,240 Speaker 1: more difficult question. Thanks for being on the show. How 280 00:17:55,560 --> 00:17:58,960 Speaker 1: that's Professor Harold crant Other, Chicago Kent College of Law. 281 00:18:00,560 --> 00:18:05,520 Speaker 1: President Biden surpassed one hundred judicial confirmations last week, including 282 00:18:05,600 --> 00:18:08,919 Speaker 1: Katangi Brown Jackson to the Supreme Court, but most of 283 00:18:08,920 --> 00:18:11,760 Speaker 1: his circuit and district court appointments have been in Blue 284 00:18:11,800 --> 00:18:16,000 Speaker 1: states or those represented by Senate Democrats, who narrowly control 285 00:18:16,080 --> 00:18:20,160 Speaker 1: the chamber. Finding common ground with Republicans will be vital 286 00:18:20,200 --> 00:18:23,680 Speaker 1: to the Biden administration, since thirty eight of the fifty 287 00:18:23,680 --> 00:18:28,480 Speaker 1: six trial court vacancies without appending nominee are in Red states. 288 00:18:29,400 --> 00:18:33,439 Speaker 1: Joining me is Madison Alder Bloomberg Law reporter. I'd like 289 00:18:33,480 --> 00:18:37,440 Speaker 1: you first to explain the process is different for nominees 290 00:18:37,480 --> 00:18:41,160 Speaker 1: for district court as opposed to circuit court. So explain 291 00:18:41,240 --> 00:18:45,400 Speaker 1: the difference. Right, So, district court still needs support from 292 00:18:45,480 --> 00:18:48,720 Speaker 1: both of their home state senators through a process known 293 00:18:48,880 --> 00:18:53,280 Speaker 1: as the blue slips. Player senators send in its physical 294 00:18:53,520 --> 00:18:57,080 Speaker 1: flip of paper to signify that they agree with the 295 00:18:57,160 --> 00:19:01,000 Speaker 1: nominee that was abandoned for a Pellet nominees under Trump, 296 00:19:01,400 --> 00:19:05,879 Speaker 1: and Democrats have held that same policy under Biden, where 297 00:19:06,400 --> 00:19:08,879 Speaker 1: the pelt nominees don't need home state senators support, but 298 00:19:08,920 --> 00:19:12,480 Speaker 1: district nominees still do. There are fifty six trial court 299 00:19:12,600 --> 00:19:17,680 Speaker 1: vacancies that don't have a nominee, even suggested right, there are. 300 00:19:17,720 --> 00:19:21,320 Speaker 1: There are quite a few district court vacancies. Now Biden 301 00:19:21,400 --> 00:19:25,720 Speaker 1: has has prioritized circuit vacancies and Billy nominated a lot 302 00:19:25,720 --> 00:19:29,719 Speaker 1: of folks for the open beats. So now there are 303 00:19:29,920 --> 00:19:33,280 Speaker 1: are quite a few district vacancies, and the majority of 304 00:19:33,280 --> 00:19:37,520 Speaker 1: those are in states with a Republican senator because home 305 00:19:37,600 --> 00:19:41,600 Speaker 1: state support is still needed on those. It'll be interesting 306 00:19:41,640 --> 00:19:45,359 Speaker 1: to see how the White House goes about negotiations with 307 00:19:45,640 --> 00:19:47,840 Speaker 1: senators in those states and what those nominees end up 308 00:19:47,840 --> 00:19:50,639 Speaker 1: looking like. There are still a lot of vacancies in 309 00:19:51,000 --> 00:19:55,680 Speaker 1: blue states. Why aren't they sort of up to date? Well, 310 00:19:55,720 --> 00:19:58,480 Speaker 1: there's you know, there's there's still a few nominees in 311 00:19:58,680 --> 00:20:01,879 Speaker 1: our vacancies. Excuse me. In blue states, there's quite a 312 00:20:01,920 --> 00:20:06,320 Speaker 1: few nominees pending. So after the beginning of the new Congress, 313 00:20:06,400 --> 00:20:10,840 Speaker 1: the White House renominated a whole batch of nominees that 314 00:20:10,920 --> 00:20:14,080 Speaker 1: were pending in the last Congress. Any nominee who wasn't 315 00:20:14,119 --> 00:20:16,040 Speaker 1: confirmed at the end of the last Congress, just as 316 00:20:16,200 --> 00:20:19,440 Speaker 1: kind of a matter of practice, needs to be renominated 317 00:20:19,520 --> 00:20:21,879 Speaker 1: at the beginning of a new Congress. And all of 318 00:20:21,920 --> 00:20:25,800 Speaker 1: those nominees are either on the floor or had their hearings, 319 00:20:25,880 --> 00:20:28,560 Speaker 1: So the Senate still needs to get through those. They 320 00:20:28,600 --> 00:20:30,280 Speaker 1: still have work to do, and a lot of those 321 00:20:30,320 --> 00:20:32,680 Speaker 1: are nominees in Blue states as well. But there are 322 00:20:32,720 --> 00:20:36,399 Speaker 1: handful of seats they're still open. So um, you know, 323 00:20:37,520 --> 00:20:40,920 Speaker 1: there there's only a finite number of days that um, 324 00:20:41,280 --> 00:20:44,199 Speaker 1: you know, the Sunate Judiciary Committee can have hearings and 325 00:20:44,800 --> 00:20:47,880 Speaker 1: you know, then have floor votes on no nominees. So 326 00:20:48,320 --> 00:20:51,959 Speaker 1: you know, last Congress, I think the White House obviously 327 00:20:52,040 --> 00:20:55,600 Speaker 1: prioritize nominees, but they still left it if you handful 328 00:20:55,640 --> 00:20:58,359 Speaker 1: of seats in blue states, just because there's kind of 329 00:20:58,359 --> 00:21:01,119 Speaker 1: the constraints of that process and the limited number of 330 00:21:01,520 --> 00:21:05,320 Speaker 1: days on the calendar to actually get nominees through in 331 00:21:05,359 --> 00:21:09,280 Speaker 1: a red state, is it normally if there is you know, 332 00:21:09,520 --> 00:21:14,080 Speaker 1: an usual process, does the Biden administration suggest a nominee 333 00:21:14,600 --> 00:21:18,600 Speaker 1: or does the home state senator suggest a nominee? So 334 00:21:18,760 --> 00:21:21,960 Speaker 1: I spoke to Page her Wig, a senior White House 335 00:21:22,000 --> 00:21:24,440 Speaker 1: Council who who works on jeration nominations, and she said, 336 00:21:24,480 --> 00:21:28,080 Speaker 1: the administration is looking for people in these conversations that 337 00:21:28,320 --> 00:21:30,960 Speaker 1: makes sense for a Democratic president to nominate, but who 338 00:21:31,000 --> 00:21:34,520 Speaker 1: will get the necessary backing from home state senators. And 339 00:21:35,119 --> 00:21:37,680 Speaker 1: you know they believe it that there are plenty of 340 00:21:37,720 --> 00:21:40,480 Speaker 1: candidates out there who will fit that bill. Those conversations 341 00:21:40,520 --> 00:21:43,840 Speaker 1: can look anything like the White House bringing names the 342 00:21:44,240 --> 00:21:48,000 Speaker 1: home state senators bringing names. I think it really differs 343 00:21:48,160 --> 00:21:51,800 Speaker 1: from state to state, depending on you know, what the 344 00:21:51,880 --> 00:21:56,400 Speaker 1: area looks like to for those conversations. Now, Biden has 345 00:21:56,440 --> 00:22:01,320 Speaker 1: had success in finding mutually agreeable nominees in red states 346 00:22:01,440 --> 00:22:05,359 Speaker 1: of Iowa, Idaho, and Indiana. Is there a reason why 347 00:22:05,640 --> 00:22:09,840 Speaker 1: those states have been, you know, easier to find nominees for? 348 00:22:10,119 --> 00:22:13,040 Speaker 1: Is it the senators there? Well, I mean I think 349 00:22:13,080 --> 00:22:15,200 Speaker 1: it could be. It could be the senators. Um, you know, 350 00:22:15,240 --> 00:22:18,639 Speaker 1: I spoke to Senator Mike Braun who is the Republican 351 00:22:18,720 --> 00:22:20,919 Speaker 1: in Indiana, and talk to him a little bit about 352 00:22:21,040 --> 00:22:24,000 Speaker 1: how how this nomination in his state came to be 353 00:22:24,320 --> 00:22:27,160 Speaker 1: and and he said it was an easy checkoff for him, 354 00:22:27,280 --> 00:22:30,840 Speaker 1: the nomination of Matthew Brookman, who's currently a magistrate judge 355 00:22:30,880 --> 00:22:33,520 Speaker 1: to a district courd in his state. Not every nominee 356 00:22:33,560 --> 00:22:36,240 Speaker 1: is going to be as easy as the checkoff, depending 357 00:22:36,240 --> 00:22:38,960 Speaker 1: on their backgrounds. So, you know, it'll probably depend on 358 00:22:39,560 --> 00:22:43,440 Speaker 1: what nominees or what candidates arise in those conversations. It 359 00:22:43,520 --> 00:22:46,320 Speaker 1: can also depend on you know, who the lawmakers are 360 00:22:46,400 --> 00:22:50,960 Speaker 1: and in what the area looks like. So some states 361 00:22:51,040 --> 00:22:54,600 Speaker 1: might be easier than others to have these kinds of 362 00:22:54,760 --> 00:22:59,960 Speaker 1: conversations with and Republican Senator John Cornin of Texas complaint 363 00:23:00,240 --> 00:23:02,840 Speaker 1: get a Judiciary committee, meaning that the White House hadn't 364 00:23:02,840 --> 00:23:05,440 Speaker 1: reached out to him even and there are a lot 365 00:23:05,440 --> 00:23:10,119 Speaker 1: of vacancies in his state. So John Cornyn um of 366 00:23:10,240 --> 00:23:13,560 Speaker 1: Texas represents the state with six vacancies, which is the 367 00:23:13,840 --> 00:23:16,439 Speaker 1: second most vacancies of any of the states out there 368 00:23:16,440 --> 00:23:19,159 Speaker 1: that don't of these seats that don't offending nominees and 369 00:23:19,240 --> 00:23:23,879 Speaker 1: district courts. And he was not pleased with how the 370 00:23:23,880 --> 00:23:27,440 Speaker 1: White House had been communicating on this. He felt that, um, 371 00:23:27,480 --> 00:23:29,320 Speaker 1: he had communicated with the White House and the White 372 00:23:29,320 --> 00:23:32,760 Speaker 1: House hadn't gotten back to him quickly enough on their end, 373 00:23:33,000 --> 00:23:36,840 Speaker 1: And UM, you know that could that could mean you 374 00:23:36,880 --> 00:23:39,159 Speaker 1: know that if there's six seats in the state, that 375 00:23:39,280 --> 00:23:43,399 Speaker 1: that's that's not great for those conversations. I mean, it 376 00:23:43,440 --> 00:23:47,280 Speaker 1: could potentially leave six seats on the table. But I 377 00:23:47,280 --> 00:23:50,399 Speaker 1: guess we'll see how that that shakes out. Um. I 378 00:23:50,440 --> 00:23:54,480 Speaker 1: think he definitely expressed disappointment, and um, you know, Lindsey Grahams, 379 00:23:54,480 --> 00:23:57,240 Speaker 1: who is now the ranking member of the ranking Republican 380 00:23:57,280 --> 00:23:59,760 Speaker 1: on the Senate of Judiciary Committee kind of echoed his 381 00:23:59,760 --> 00:24:02,600 Speaker 1: his concerns at a recent hearing as well and said, 382 00:24:02,640 --> 00:24:04,360 Speaker 1: you know, there has to be a willingness to consult, 383 00:24:04,440 --> 00:24:07,399 Speaker 1: that it's got to be a two way straight. Of course, 384 00:24:07,880 --> 00:24:11,480 Speaker 1: all of these conversations are coming as there's a lot 385 00:24:11,480 --> 00:24:15,239 Speaker 1: of progressive pressure to eliminate the blue slip entirely at 386 00:24:15,240 --> 00:24:18,679 Speaker 1: the district court level. I think that's definitely is context 387 00:24:18,800 --> 00:24:22,880 Speaker 1: for all of these negotiations right now, is that there's 388 00:24:22,960 --> 00:24:26,760 Speaker 1: quite a lot of pressure. It's increased, I think in 389 00:24:26,760 --> 00:24:29,399 Speaker 1: this new Congress to just get get rid of the 390 00:24:29,400 --> 00:24:32,879 Speaker 1: blue slips so Biden could move nominees forward in district 391 00:24:32,920 --> 00:24:38,280 Speaker 1: courts without having to associate with Republican senators and progressive sphere. 392 00:24:38,400 --> 00:24:41,080 Speaker 1: That this will take a long time, and you know, 393 00:24:41,200 --> 00:24:45,000 Speaker 1: the nominees might end up being more of a compromised 394 00:24:45,040 --> 00:24:49,639 Speaker 1: pick between Republicans and the White House. But the chair 395 00:24:49,720 --> 00:24:54,359 Speaker 1: of the Judiciary Committee, Senator Dick Durbin, to me, it 396 00:24:54,400 --> 00:24:57,920 Speaker 1: seems like he's been reluctant to make any changes even 397 00:24:57,960 --> 00:25:02,119 Speaker 1: with you know, having more nominee. He's eddy cheering, right. 398 00:25:02,320 --> 00:25:07,560 Speaker 1: So Senator durban has has really maintained the same practices 399 00:25:07,640 --> 00:25:12,560 Speaker 1: here that Republicans had during the Trump administration, and that 400 00:25:12,600 --> 00:25:15,600 Speaker 1: means keeping the blue slip for district courts in place. 401 00:25:16,560 --> 00:25:20,080 Speaker 1: He said that, you know, he's reserved the right to 402 00:25:20,080 --> 00:25:22,879 Speaker 1: potentially move forward with the nominee in the future if 403 00:25:23,600 --> 00:25:27,800 Speaker 1: he feels a Republican senator or a senator is objecting 404 00:25:27,880 --> 00:25:31,960 Speaker 1: to a nominee outside of their merits, so because of race, 405 00:25:32,080 --> 00:25:35,520 Speaker 1: sexual orientation, gender. When I spoke to him about this, 406 00:25:36,040 --> 00:25:37,920 Speaker 1: he said, in that kind of a case, he'd know 407 00:25:38,040 --> 00:25:40,800 Speaker 1: it when when he sees it. So we really haven't 408 00:25:40,840 --> 00:25:43,320 Speaker 1: come across a situation like that yet. There was a 409 00:25:43,400 --> 00:25:47,720 Speaker 1: nominee not in the last Congress who didn't have both 410 00:25:47,720 --> 00:25:50,320 Speaker 1: of his own state senators returned blue slips on his nomination, 411 00:25:50,359 --> 00:25:54,960 Speaker 1: William Pokon in Wisconsin. His nomination he was not renominated 412 00:25:54,960 --> 00:25:57,679 Speaker 1: this Congress by the White House, so he We've already 413 00:25:57,720 --> 00:26:03,040 Speaker 1: seen one nominee who the blue slips role prevented their 414 00:26:03,080 --> 00:26:05,719 Speaker 1: nomination from moving forward and kind of it ended up 415 00:26:05,880 --> 00:26:09,439 Speaker 1: ending their nomination. So, um, you know, this Congress I 416 00:26:09,440 --> 00:26:11,680 Speaker 1: think will be even more of a test with the 417 00:26:11,880 --> 00:26:14,600 Speaker 1: number of the volume of vacancies and states of Republican 418 00:26:14,640 --> 00:26:20,040 Speaker 1: senators and a nominee in Kentucky also fell through right, 419 00:26:20,400 --> 00:26:25,000 Speaker 1: Chad Meritith nomination, Well, he wasn't really a nominee yet, 420 00:26:25,040 --> 00:26:27,240 Speaker 1: he was a candidate, or should be clear about that. 421 00:26:27,640 --> 00:26:31,840 Speaker 1: But this was a nominee that the Senator Rand Paul 422 00:26:31,880 --> 00:26:35,760 Speaker 1: didn't feel like he was consulted enough on this by 423 00:26:35,760 --> 00:26:39,159 Speaker 1: by Senator McConnell. Um, you know, an apparent kind of 424 00:26:39,520 --> 00:26:43,159 Speaker 1: agreement or nominees at the White House and McConnell had 425 00:26:43,280 --> 00:26:46,520 Speaker 1: had talked about. But Ran Paul was actually you know 426 00:26:46,520 --> 00:26:48,960 Speaker 1: what ended up preventing the nomination from moving forward because 427 00:26:48,960 --> 00:26:51,600 Speaker 1: he didn't feel like he was part of that conversation. Um. 428 00:26:51,720 --> 00:26:56,840 Speaker 1: So the nomination was scrapped, and that nomination or candidacy 429 00:26:57,200 --> 00:27:03,840 Speaker 1: angered progresses because Ted Meredith had defended abortion restrictions and 430 00:27:04,400 --> 00:27:07,520 Speaker 1: progressives were really not pleased with the ideas that the 431 00:27:07,520 --> 00:27:11,399 Speaker 1: White House was considering a nominee like that, especially, you know, 432 00:27:11,480 --> 00:27:14,840 Speaker 1: so close to the dob's decision the less and a 433 00:27:14,880 --> 00:27:18,800 Speaker 1: lot of times Committee was deadlock ten to ten on nomination. 434 00:27:18,960 --> 00:27:22,320 Speaker 1: So there was a you know, a process to go forward. 435 00:27:22,800 --> 00:27:27,480 Speaker 1: Is it easier now with the Democrats gaining that seat, Yes, 436 00:27:27,840 --> 00:27:30,640 Speaker 1: Democrats are going to have a much easier time Committee. 437 00:27:30,680 --> 00:27:36,080 Speaker 1: Democrats getting these nominees out of committee into the floors. 438 00:27:36,240 --> 00:27:38,760 Speaker 1: As you mentioned, there were there were deadlocks on nominees 439 00:27:38,840 --> 00:27:41,119 Speaker 1: lost Congress. There were actually a couple of de banning 440 00:27:41,240 --> 00:27:45,080 Speaker 1: of this Congress because the committee didn't have its new 441 00:27:45,119 --> 00:27:49,000 Speaker 1: membership yet, so those were a little unexpected. But now 442 00:27:49,000 --> 00:27:51,359 Speaker 1: that it has this you know, additional vote with the 443 00:27:51,480 --> 00:27:54,399 Speaker 1: Senator Peter Welsh, they are able to actually get some 444 00:27:54,440 --> 00:27:56,440 Speaker 1: of these nominees out of committee and have been able 445 00:27:56,440 --> 00:28:00,680 Speaker 1: to get nominees out of committee who did deadlock Congress, 446 00:28:00,760 --> 00:28:06,240 Speaker 1: so those nominations are finally moving forward. One of those 447 00:28:06,280 --> 00:28:09,880 Speaker 1: nominees is Dale Hoe, who's nominated to the Southern Districts 448 00:28:09,880 --> 00:28:13,200 Speaker 1: of New York. He's an ACLU voting rights attorney, and 449 00:28:13,560 --> 00:28:16,679 Speaker 1: his nomination had deadlocks. But now he is now on 450 00:28:16,720 --> 00:28:21,880 Speaker 1: the floor, so it's it's already paying dividends. So now 451 00:28:21,960 --> 00:28:26,200 Speaker 1: I wanted to talk about this nominee from New Hampshire 452 00:28:26,400 --> 00:28:33,000 Speaker 1: that both progressives and Republicans were pushing back on. All right, 453 00:28:33,080 --> 00:28:38,720 Speaker 1: So one of Biden's nominees to the First Circuit, Michael Delaney, 454 00:28:39,760 --> 00:28:43,360 Speaker 1: he had his confirmation hearing last week and got some 455 00:28:43,360 --> 00:28:48,760 Speaker 1: some pushback from progressive you know, sexual violence awareness groups 456 00:28:48,760 --> 00:28:55,040 Speaker 1: and Republicans for his involvement in litigation with a student 457 00:28:55,080 --> 00:28:57,800 Speaker 1: who was a victim of sexual harassment. He was the 458 00:28:57,920 --> 00:29:02,440 Speaker 1: lawyer for the school in this litigation. And um, the 459 00:29:02,520 --> 00:29:07,440 Speaker 1: critics really focused on an emotion that Sally Knew filed 460 00:29:07,600 --> 00:29:13,280 Speaker 1: during proceedings for the then teenage victim to shed her 461 00:29:13,520 --> 00:29:16,920 Speaker 1: anonymity and um, you know, come forward with her name 462 00:29:16,920 --> 00:29:20,400 Speaker 1: on the record. Yeah, And so the victim wrote to 463 00:29:20,440 --> 00:29:24,600 Speaker 1: the committee urging the centators to vote no. And um, 464 00:29:24,840 --> 00:29:30,400 Speaker 1: the National Alliance to End Sexual Violence express concerns. So 465 00:29:30,720 --> 00:29:35,040 Speaker 1: where does that nomination stand? So, you know, I spoke 466 00:29:35,160 --> 00:29:38,360 Speaker 1: to some Democrats on the committee about this before they 467 00:29:38,800 --> 00:29:44,200 Speaker 1: got out of town, and they they're reviewing his record. 468 00:29:44,720 --> 00:29:50,160 Speaker 1: H That's really the most um common answer that I 469 00:29:50,240 --> 00:29:54,360 Speaker 1: heard was that they were reviewing his his background. But 470 00:29:54,440 --> 00:29:57,440 Speaker 1: he still has support from the White House. Um, he 471 00:29:57,560 --> 00:30:00,240 Speaker 1: still has support from at least one of his home 472 00:30:00,320 --> 00:30:04,960 Speaker 1: state senators. You know. And when I supposed to Durban 473 00:30:05,000 --> 00:30:10,480 Speaker 1: about this, you know, Jared Durban mentioned that he kind 474 00:30:10,480 --> 00:30:15,360 Speaker 1: of had a difficult situation explaining this, and he pointed 475 00:30:15,400 --> 00:30:18,720 Speaker 1: to the amount of support Delimi had and and said 476 00:30:18,760 --> 00:30:22,560 Speaker 1: he hoped that his state wouldn't be decided by this 477 00:30:22,720 --> 00:30:27,360 Speaker 1: controversial issue. This is so interesting too, because the last 478 00:30:27,400 --> 00:30:31,760 Speaker 1: time there was a nomny that progressives were really opposing, 479 00:30:32,840 --> 00:30:36,840 Speaker 1: Republicans supported that, not many, like tenfold. It was the 480 00:30:36,920 --> 00:30:39,640 Speaker 1: unanimous side of committee. I think they might have even 481 00:30:39,760 --> 00:30:42,440 Speaker 1: voice voted her on the floor, So this was kind 482 00:30:42,480 --> 00:30:45,440 Speaker 1: of the first time you see Republicans and progressives on 483 00:30:45,480 --> 00:30:47,520 Speaker 1: the same side, at least that I can think of. 484 00:30:47,720 --> 00:30:51,880 Speaker 1: Thanks so much, Madison. That's Bloomberg Law reporter Madison Alder, 485 00:30:52,360 --> 00:30:54,680 Speaker 1: and that's it for this edition of The Bloomberg Law Show. 486 00:30:55,040 --> 00:30:57,320 Speaker 1: Remember you can always get the latest legal news on 487 00:30:57,400 --> 00:31:01,680 Speaker 1: our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, 488 00:31:01,880 --> 00:31:06,920 Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law, 489 00:31:07,320 --> 00:31:09,480 Speaker 1: and remember to tune in to The Bloomberg Law Show 490 00:31:09,600 --> 00:31:13,080 Speaker 1: every week night at ten pm Wall Street Time. I'm 491 00:31:13,160 --> 00:31:15,640 Speaker 1: June Grosso, and you're listening to Bloomberg