Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: The Supreme Court justices expressed wariness during oral arguments about
Speaker 1: opening Internet companies to lawsuits stemming from harmful user posts.
Speaker 1: The justices were hearing a case challenging section two thirty
Speaker 1: of the Communications Decency Act, it protects online companies from
Speaker 1: being sued over the comments, ads, pictures, and videos on
Speaker 1: their platforms. The case involved a twenty three year old
Speaker 1: US citizen who was one of one hundred thirty people
Speaker 1: killed in attacks by the Islamic State group in Paris
Speaker 1: in November of twenty eighteen. Her family says Google, through
Speaker 1: its algorithm driven YouTube recommendations, aided the Islamic State in
Speaker 1: violation of the US Anti Terrorism Act, but Justice Clarence
Speaker 1: Thomas suggested that companies can't be sued if their recommendation
Speaker 1: algorithms are neutral about the kind of content they promote.
Speaker 1: If it's the same algorithm, I think you have to
Speaker 1: give us a clear example of what your point is.
Speaker 1: Exactly the same algorithm to present cooking videos to people
Speaker 1: who are interested in cooking and ISIS videos the people
Speaker 1: who are interested in ISIS racing videos the people who
Speaker 1: are interested in racing. Then I think you're going to
Speaker 1: have to explain more clearly if it's neutral in that way,
Speaker 1: how your claim is set Apart from that. Joining me
Speaker 1: is Harold Crant, a professor at the Chicago Kent College
Speaker 1: of Law. Before we talk about the Supreme Court arguments,
Speaker 1: just explain what the case is about. This case concerns
Speaker 1: a action under the Terrorist Statutes directed against Google, who
Speaker 1: operates YouTube, for aiding and abetting terrorism. The argument in
Speaker 1: this case was that YouTube, by suggesting certain videos, helps
Speaker 1: radicalize people and helps therefore helps aids ISIS into recruiting
Speaker 1: new members. And the legal issue that arises out of
Speaker 1: this challenge is whether or not a cause of action
Speaker 1: can be maintained against Google for fostering sharing of these videos,
Speaker 1: and then, if so, whether a proper cause of action
Speaker 1: has been pled. The first issue revolves around the Community
Speaker 1: Decencies Act Section to thirty, immunity for Internet computer services
Speaker 1: when they simply allow for external videos to be seen
Speaker 1: or retrieved from their site. And to thirty was a
Speaker 1: key instrument in trying to develop the Internet by allowing
Speaker 1: platforms to allow others to publish videos and other works
Speaker 1: on sites without then letting the platform be sued in
Speaker 1: case some of those informations were in this case terrorism,
Speaker 1: but in other cases involving defamation, or involving trademark infringement
Speaker 1: and so forth. So by immunizing the platforms, they really
Speaker 1: gave rise to the twitters that facebooks, the Googles of
Speaker 1: the world, which can basically then grab all this material
Speaker 1: or have all this material be deposit on their site
Speaker 1: and therefore available for those of us who want to
Speaker 1: search for things, or want to contact friends or see
Speaker 1: as in this case videos. Did it strike you that
Speaker 1: there were some top concerns that the justices had about
Speaker 1: the plaintiff's lawsuit. Absolutely, this is one of these few
Speaker 1: cases where I don't think that the justices were hiding
Speaker 1: us of beliefs. I think that their inclination to rule
Speaker 1: on behalf of the defendant was quite clear. But the
Speaker 1: issue remains about which type of decision they may want
Speaker 1: to issue. And let me break that down into two parts,
Speaker 1: because the first part was whether or not Google can
Speaker 1: be protected by Section two thirty or not, and the
Speaker 1: second is whether there is a valid cause of action pled.
Speaker 1: It's pretty clear to me that the Court is going
Speaker 1: to say that if you just have an algorithm recommend
Speaker 1: a video that's not aiding and embedding. So I think
Speaker 1: that there was no inclination amongst the justices to be
Speaker 1: sympathetic with plaintiffs in that respect, and on that issue
Speaker 1: they said, look, I mean, you can say look at
Speaker 1: this video, or you can say you might want to
Speaker 1: see this video, or you can say go over there
Speaker 1: and look at a stack of books. That's simply not
Speaker 1: enough to state any kind of tortious behavior. So I
Speaker 1: think on the ultimate issue of whether a tort was committed,
Speaker 1: the court may just say, no, we don't need to
Speaker 1: reach the more difficult and tractable issue of how large
Speaker 1: it is community created by section two thirty. But much
Speaker 1: of the argument was spent on what should we do
Speaker 1: as a court about the scope of two thirty immunity
Speaker 1: because the sort of algorithms that are used by Google
Speaker 1: and Twitter, Facebook in terms of Facebook feeds certainly didn't
Speaker 1: exist at the time that the community decency at Community
Speaker 1: was put into effect. So much of the discussion than
Speaker 1: we evolved around how do we draw a line between
Speaker 1: when a platform says this video is available or the
Speaker 1: platform says you might want them to see this video,
Speaker 1: or the platform says you may like this video, is
Speaker 1: dead enough to lose immunity, because then it's as if
Speaker 1: the platform becomes a publisher by saying you're going to
Speaker 1: like this video, and no one knows. Lots of hypotheticals
Speaker 1: were raised, but it's the kind of case where at
Speaker 1: the end of the day, as some of Justice has said,
Speaker 1: if this is so difficult, and this may cause such
Speaker 1: a risk to the continued development of the Internet, maybe
Speaker 1: we should let Congress make these difficult lines and we
Speaker 1: shouldn't try to ourselves. Did it seem to you as
Speaker 1: if the justices just didn't even accept the plaintiff's basic argument,
Speaker 1: Justice Alito said, I admit, I'm completely confused by whatever
Speaker 1: argument you're making at the present time. Well, I mean,
Speaker 1: I think that the difficulty was that the Council for
Speaker 1: the Plane of backtracked from much that was in their
Speaker 1: brief and try to make a much more narrow argument
Speaker 1: that he thought was more defensible, And he basically said
Speaker 1: that there was no duty on the platform to take
Speaker 1: down the videos, and that the Google was not couldn't
Speaker 1: be civilly liable simply for housing the videos, even if
Speaker 1: they were an incitement to terrorism. What he argued instead
Speaker 1: was a more narrow version is that by reorganizing the videos,
Speaker 1: by prioritizing videos through this algorithm, that then that crossed
Speaker 1: the line in terms of Google becoming a publisher and
Speaker 1: therefore no longer subject to the immunity created by Section
Speaker 1: two thirty. And that's why I think through a lot
Speaker 1: of the justices off the more narrow version of the
Speaker 1: argument that plaintiff was raising. The concern before the oral
Speaker 1: arguments was that this would open Google and Internet platforms
Speaker 1: up to all kinds of lawsuits. Was that addressed in
Speaker 1: the oral arguments? Absolutely? I mean the number of briefs
Speaker 1: were filed that raised a parade of horribles that Google
Speaker 1: and Facebook will be subject to defamation cases, subject to
Speaker 1: privacy cases, trademark cases, if Section too thirty immunity was
Speaker 1: tampered with. And I think the reason is that it's
Speaker 1: so difficult to figure out what it is where the
Speaker 1: line is between a platform simply saying come look at
Speaker 1: the videos here. That's what people do to sell things,
Speaker 1: they publicize them, and when is it okay? Besides and
Speaker 1: say you may be interested in this article or this
Speaker 1: video as opposed to when you actually becoming caruts with
Speaker 1: the video because you prioritize it in some ways. And
Speaker 1: the Narrow arguments that the plaint of game was by
Speaker 1: giving a little thumbnail that YouTube creates in other ways,
Speaker 1: just a little brief sort of taste of what the
Speaker 1: video is. That that really crossed the line. And then
Speaker 1: YouTube became just as if it was creating something. It
Speaker 1: was creating like a mini advertisement, and that little mini
Speaker 1: advertisement was enough to give rise to liability and to
Speaker 1: avoid immunity. And the United States is the meekest was
Speaker 1: sympathetic to that view. The United States clearly said there's
Speaker 1: not enough for itting and a betting liability here. But
Speaker 1: the United States says, you know, look, once you create
Speaker 1: any kind of semi advertising platform, be it through a
Speaker 1: you should look at this first. To come here and
Speaker 1: look at this new video. You're responsible for that that product,
Speaker 1: for that kind of statement yourself, and then you're no
Speaker 1: longer immune for at least that kind of advertising or
Speaker 1: promotions prioritization or organization, even if you still remain immune
Speaker 1: from liability for the video itself. Do you think that
Speaker 1: the justices can come to a decision here without specifically
Speaker 1: ruling on section two thirty. So the court has a
Speaker 1: couple of different options in front of it. First of all,
Speaker 1: coag just say, whatever is going on in this case,
Speaker 1: there's no aiding and abetting liability here, So we reserve
Speaker 1: the right to questions the scope of two thirty immunity
Speaker 1: for a different day. That's one option. Another option is
Speaker 1: they can say, this is a difficult line drawing issue
Speaker 1: about when does a platform liability not become a publisher
Speaker 1: through its organizational and prioritization of other work, and they
Speaker 1: can try to find a line. A line not surprisingly
Speaker 1: drawn by Google was that if the harm comes from
Speaker 1: the prioritization, where the harm comes from the publicizing, then
Speaker 1: there should be no immunity. But of course that's a
Speaker 1: convenient test for Google because that googleman's in almost every case,
Speaker 1: not every case, but almost every case. The other third
Speaker 1: tech the court could just take was this is a
Speaker 1: new issue that Congress has not fully fought through when
Speaker 1: it passed the Communications Decency Act. It's very difficult. We
Speaker 1: have a new age of AI and other kinds of algorithms,
Speaker 1: and we're going to let Congress take the lead if
Speaker 1: it wants to change the immunity for platforms such as
Speaker 1: Twitter and Google. Did anyone mention the original authors of
Speaker 1: section two thirty Oregon Democratic Senator Ron widen In former
Speaker 1: California Republican Representative Chris Cox explained they're thinking behind the
Speaker 1: legislation in a brief to the court, and they said
Speaker 1: that algorithmic recommendations are direct descendants of the early content
Speaker 1: curation efforts that Congress had in mind when enacting section
Speaker 1: to thirty. Does that have any relevance at all? Was
Speaker 1: that mentioned at all? So the names of the sponsors
Speaker 1: of the Community Decency Act were not mentioned in to
Speaker 1: my recall, but there was some discussion of that kind
Speaker 1: of legislative history, that the drafters that bill were aware
Speaker 1: of algorithmic type uses. They didn't dominate at the time,
Speaker 1: but they were around in their infancy. And so the
Speaker 1: question is, then, if the drafters were aware of the
Speaker 1: potential for algorithms, were they trying to protect those as well?
Speaker 1: About the use of language in the immunity section. And
Speaker 1: it was interesting because you know, the community Section can
Speaker 1: be interpreted different ways. It can be interpreted through the
Speaker 1: lens of common law deformation actions, it can be interpreted
Speaker 1: through the brief language that's in the immunity section as well.
Speaker 1: And so there was some effort not only looking at
Speaker 1: legislative history, but looking at the plain language as well
Speaker 1: as common law and the students of this immunity section.
Speaker 1: But I think at the end of the day, those
Speaker 1: arguments are not going to win out. I think the
Speaker 1: question is really that the court was stumbling on, is okay,
Speaker 1: theoretically there are some bad algorithms out there. Everybody agreed
Speaker 1: that if an algorithm tend to do differentiate on the
Speaker 1: basis of race, for instance, that then the platforms would
Speaker 1: not escape liability because then the harm would be caused
Speaker 1: by the algorithm itself. But at what point would a
Speaker 1: neutral algorithm? And everybody agreed that this algorithm that was
Speaker 1: challenge was neutral in the sense that it treated people
Speaker 1: liking pet cats and the terrorists videos the same in
Speaker 1: terms of how the algorithm works. That at what point
Speaker 1: would sort of a neutral algorithm be subject to suit
Speaker 1: was the question, and how do you draw the line?
Speaker 1: And that was daunting, I think at over our both
Speaker 1: to the attorneys representing their parties as well as to
Speaker 1: the justices. And so again I think The three choices
Speaker 1: are the court may just pump and say will await Congress.
Speaker 1: They can try to draft some kind of wine itself
Speaker 1: which did not come clearly through a dooral argument, or
Speaker 1: they can just avoid the whole question by saying, whatever
Speaker 1: this is, there's no aiding and betting going on here,
Speaker 1: simply by use of an algorithm, So we don't have
Speaker 1: to talk about or reach the scope of immunity under
Speaker 1: their Community Decency Act. Was it surprising? Justice Amy Coney
Speaker 1: Barrett asked the plaintiff's attorney to confirm that the legal
Speaker 1: theory he was advancing would not protect individual Internet users retweeting, sharing,
Speaker 1: or liking other people's content, and he said that it
Speaker 1: would cover people retweeting or liking. Justice Barrett asked about
Speaker 1: whether retweeting could land someone in jeopardy for retweeting a
Speaker 1: defamatory statement, and other justices chimed in that that's a
Speaker 1: difficulty because in terms of if you republish a defamatory
Speaker 1: statement in the newspaper, the newspaper can also be sued
Speaker 1: for defamation. So the council had to wrestle with that
Speaker 1: because there is a possibility that if the plaintiff's theory
Speaker 1: of the case were accepted that those who retweeted thoughtlessly
Speaker 1: might be subject to lawsuits as well, But everybody hastened
Speaker 1: to add that's not directly at stake in this particular case.
Speaker 1: Because this case had to do with not republishing, but
Speaker 1: rather platform organizing or platform prioritization of videos for others
Speaker 1: to watch. The Court didn't have to take this case
Speaker 1: because there wasn't a split in the circuits. Why do
Speaker 1: you think they took this case and the Twitter case?
Speaker 1: So I've wondered why the court accepted this case, and
Speaker 1: I haven't come up with a very convincing response in
Speaker 1: my own mind with this caveat. There is such a
Speaker 1: controversy brewing on the political parties about big tech and
Speaker 1: if big tech is good or bad for the country,
Speaker 1: and two thirty immunity was one of the major arguments
Speaker 1: that has been booted back and forth by the political
Speaker 1: parties as to whether or not it's a good or
Speaker 1: bad thing, and whether or not it's letting big tech
Speaker 1: get away with too much. So this may have been
Speaker 1: a first effort for the court, in its own mind,
Speaker 1: to be responsible and try to wrestle with two thirty.
Speaker 1: In order to sort of depoliticize to some extent the
Speaker 1: role of big tech in our country. I don't know
Speaker 1: if theory has any kind of legs, but if so,
Speaker 1: I think that big tech is going to look pretty
Speaker 1: good after this case is over. I know that Justice
Speaker 1: any Coney Barrett did talk about the case against Twitter.
Speaker 1: So if you lose tomorrow, do we even have to
Speaker 1: reach the section to thirty question here? How much did
Speaker 1: the case against Twitter come up? The case against Twitter
Speaker 1: came up a lot because the kids against Twitter it
Speaker 1: revolves around the question of the validity of the aiding
Speaker 1: and abetting argument, and the courts seemed to overwhelmingly oppose
Speaker 1: the notion the Twitter or any other platforom can aid
Speaker 1: in a bet merely by offering someone to view a
Speaker 1: incendury in this case, an incendury video in another case
Speaker 1: it could be some kind of defamatory tweet or something
Speaker 1: else along those lines. That aiding and betting have to
Speaker 1: be much more according to the court. So I'm not
Speaker 1: sure what there's going to be for argument for two
Speaker 1: hours tomorrow because it looks like most of that argument
Speaker 1: already took place here. But you know, maybe the court
Speaker 1: will have some twists and turns to cover to make
Speaker 1: up for something that they regret not covering. From what
Speaker 1: you're saying and from what the Justice has said, it's
Speaker 1: it sort of seems like a very logical conclusion that
Speaker 1: you know, just by having these algorithms, you're not aiding
Speaker 1: in a betting terrorism. It does. On the other hand,
Speaker 1: but for YouTube, but for Facebook, terrorists might not be
Speaker 1: able to operate so freely and more people now see
Speaker 1: provisis videos and ever could have before because of Internet
Speaker 1: platforms like YouTube and Facebook. And that's that's the danger here.
Speaker 1: I mean, it is true that in terms of you
Speaker 1: just looked at common sense responsibility for aiding terrorism, platforms
Speaker 1: do it, and there's no question about it. But whether
Speaker 1: there's criminal liability or even whether there's civil liability under
Speaker 1: the aid terrorist statues, I think that's a that's a
Speaker 1: more difficult question. Thanks for being on the show. How
Speaker 1: that's Professor Harold crant Other, Chicago Kent College of Law.
Speaker 1: President Biden surpassed one hundred judicial confirmations last week, including
Speaker 1: Katangi Brown Jackson to the Supreme Court, but most of
Speaker 1: his circuit and district court appointments have been in Blue
Speaker 1: states or those represented by Senate Democrats, who narrowly control
Speaker 1: the chamber. Finding common ground with Republicans will be vital
Speaker 1: to the Biden administration, since thirty eight of the fifty
Speaker 1: six trial court vacancies without appending nominee are in Red states.
Speaker 1: Joining me is Madison Alder Bloomberg Law reporter. I'd like
Speaker 1: you first to explain the process is different for nominees
Speaker 1: for district court as opposed to circuit court. So explain
Speaker 1: the difference. Right, So, district court still needs support from
Speaker 1: both of their home state senators through a process known
Speaker 1: as the blue slips. Player senators send in its physical
Speaker 1: flip of paper to signify that they agree with the
Speaker 1: nominee that was abandoned for a Pellet nominees under Trump,
Speaker 1: and Democrats have held that same policy under Biden, where
Speaker 1: the pelt nominees don't need home state senators support, but
Speaker 1: district nominees still do. There are fifty six trial court
Speaker 1: vacancies that don't have a nominee, even suggested right, there are.
Speaker 1: There are quite a few district court vacancies. Now Biden
Speaker 1: has has prioritized circuit vacancies and Billy nominated a lot
Speaker 1: of folks for the open beats. So now there are
Speaker 1: are quite a few district vacancies, and the majority of
Speaker 1: those are in states with a Republican senator because home
Speaker 1: state support is still needed on those. It'll be interesting
Speaker 1: to see how the White House goes about negotiations with
Speaker 1: senators in those states and what those nominees end up
Speaker 1: looking like. There are still a lot of vacancies in
Speaker 1: blue states. Why aren't they sort of up to date? Well,
Speaker 1: there's you know, there's there's still a few nominees in
Speaker 1: our vacancies. Excuse me. In blue states, there's quite a
Speaker 1: few nominees pending. So after the beginning of the new Congress,
Speaker 1: the White House renominated a whole batch of nominees that
Speaker 1: were pending in the last Congress. Any nominee who wasn't
Speaker 1: confirmed at the end of the last Congress, just as
Speaker 1: kind of a matter of practice, needs to be renominated
Speaker 1: at the beginning of a new Congress. And all of
Speaker 1: those nominees are either on the floor or had their hearings,
Speaker 1: So the Senate still needs to get through those. They
Speaker 1: still have work to do, and a lot of those
Speaker 1: are nominees in Blue states as well. But there are
Speaker 1: handful of seats they're still open. So um, you know,
Speaker 1: there there's only a finite number of days that um,
Speaker 1: you know, the Sunate Judiciary Committee can have hearings and
Speaker 1: you know, then have floor votes on no nominees. So
Speaker 1: you know, last Congress, I think the White House obviously
Speaker 1: prioritize nominees, but they still left it if you handful
Speaker 1: of seats in blue states, just because there's kind of
Speaker 1: the constraints of that process and the limited number of
Speaker 1: days on the calendar to actually get nominees through in
Speaker 1: a red state, is it normally if there is you know,
Speaker 1: an usual process, does the Biden administration suggest a nominee
Speaker 1: or does the home state senator suggest a nominee? So
Speaker 1: I spoke to Page her Wig, a senior White House
Speaker 1: Council who who works on jeration nominations, and she said,
Speaker 1: the administration is looking for people in these conversations that
Speaker 1: makes sense for a Democratic president to nominate, but who
Speaker 1: will get the necessary backing from home state senators. And
Speaker 1: you know they believe it that there are plenty of
Speaker 1: candidates out there who will fit that bill. Those conversations
Speaker 1: can look anything like the White House bringing names the
Speaker 1: home state senators bringing names. I think it really differs
Speaker 1: from state to state, depending on you know, what the
Speaker 1: area looks like to for those conversations. Now, Biden has
Speaker 1: had success in finding mutually agreeable nominees in red states
Speaker 1: of Iowa, Idaho, and Indiana. Is there a reason why
Speaker 1: those states have been, you know, easier to find nominees for?
Speaker 1: Is it the senators there? Well, I mean I think
Speaker 1: it could be. It could be the senators. Um, you know,
Speaker 1: I spoke to Senator Mike Braun who is the Republican
Speaker 1: in Indiana, and talk to him a little bit about
Speaker 1: how how this nomination in his state came to be
Speaker 1: and and he said it was an easy checkoff for him,
Speaker 1: the nomination of Matthew Brookman, who's currently a magistrate judge
Speaker 1: to a district courd in his state. Not every nominee
Speaker 1: is going to be as easy as the checkoff, depending
Speaker 1: on their backgrounds. So, you know, it'll probably depend on
Speaker 1: what nominees or what candidates arise in those conversations. It
Speaker 1: can also depend on you know, who the lawmakers are
Speaker 1: and in what the area looks like. So some states
Speaker 1: might be easier than others to have these kinds of
Speaker 1: conversations with and Republican Senator John Cornin of Texas complaint
Speaker 1: get a Judiciary committee, meaning that the White House hadn't
Speaker 1: reached out to him even and there are a lot
Speaker 1: of vacancies in his state. So John Cornyn um of
Speaker 1: Texas represents the state with six vacancies, which is the
Speaker 1: second most vacancies of any of the states out there
Speaker 1: that don't of these seats that don't offending nominees and
Speaker 1: district courts. And he was not pleased with how the
Speaker 1: White House had been communicating on this. He felt that, um,
Speaker 1: he had communicated with the White House and the White
Speaker 1: House hadn't gotten back to him quickly enough on their end,
Speaker 1: And UM, you know that could that could mean you
Speaker 1: know that if there's six seats in the state, that
Speaker 1: that's that's not great for those conversations. I mean, it
Speaker 1: could potentially leave six seats on the table. But I
Speaker 1: guess we'll see how that that shakes out. Um. I
Speaker 1: think he definitely expressed disappointment, and um, you know, Lindsey Grahams,
Speaker 1: who is now the ranking member of the ranking Republican
Speaker 1: on the Senate of Judiciary Committee kind of echoed his
Speaker 1: his concerns at a recent hearing as well and said,
Speaker 1: you know, there has to be a willingness to consult,
Speaker 1: that it's got to be a two way straight. Of course,
Speaker 1: all of these conversations are coming as there's a lot
Speaker 1: of progressive pressure to eliminate the blue slip entirely at
Speaker 1: the district court level. I think that's definitely is context
Speaker 1: for all of these negotiations right now, is that there's
Speaker 1: quite a lot of pressure. It's increased, I think in
Speaker 1: this new Congress to just get get rid of the
Speaker 1: blue slips so Biden could move nominees forward in district
Speaker 1: courts without having to associate with Republican senators and progressive sphere.
Speaker 1: That this will take a long time, and you know,
Speaker 1: the nominees might end up being more of a compromised
Speaker 1: pick between Republicans and the White House. But the chair
Speaker 1: of the Judiciary Committee, Senator Dick Durbin, to me, it
Speaker 1: seems like he's been reluctant to make any changes even
Speaker 1: with you know, having more nominee. He's eddy cheering, right.
Speaker 1: So Senator durban has has really maintained the same practices
Speaker 1: here that Republicans had during the Trump administration, and that
Speaker 1: means keeping the blue slip for district courts in place.
Speaker 1: He said that, you know, he's reserved the right to
Speaker 1: potentially move forward with the nominee in the future if
Speaker 1: he feels a Republican senator or a senator is objecting
Speaker 1: to a nominee outside of their merits, so because of race,
Speaker 1: sexual orientation, gender. When I spoke to him about this,
Speaker 1: he said, in that kind of a case, he'd know
Speaker 1: it when when he sees it. So we really haven't
Speaker 1: come across a situation like that yet. There was a
Speaker 1: nominee not in the last Congress who didn't have both
Speaker 1: of his own state senators returned blue slips on his nomination,
Speaker 1: William Pokon in Wisconsin. His nomination he was not renominated
Speaker 1: this Congress by the White House, so he We've already
Speaker 1: seen one nominee who the blue slips role prevented their
Speaker 1: nomination from moving forward and kind of it ended up
Speaker 1: ending their nomination. So, um, you know, this Congress I
Speaker 1: think will be even more of a test with the
Speaker 1: number of the volume of vacancies and states of Republican
Speaker 1: senators and a nominee in Kentucky also fell through right,
Speaker 1: Chad Meritith nomination, Well, he wasn't really a nominee yet,
Speaker 1: he was a candidate, or should be clear about that.
Speaker 1: But this was a nominee that the Senator Rand Paul
Speaker 1: didn't feel like he was consulted enough on this by
Speaker 1: by Senator McConnell. Um, you know, an apparent kind of
Speaker 1: agreement or nominees at the White House and McConnell had
Speaker 1: had talked about. But Ran Paul was actually you know
Speaker 1: what ended up preventing the nomination from moving forward because
Speaker 1: he didn't feel like he was part of that conversation. Um.
Speaker 1: So the nomination was scrapped, and that nomination or candidacy
Speaker 1: angered progresses because Ted Meredith had defended abortion restrictions and
Speaker 1: progressives were really not pleased with the ideas that the
Speaker 1: White House was considering a nominee like that, especially, you know,
Speaker 1: so close to the dob's decision the less and a
Speaker 1: lot of times Committee was deadlock ten to ten on nomination.
Speaker 1: So there was a you know, a process to go forward.
Speaker 1: Is it easier now with the Democrats gaining that seat, Yes,
Speaker 1: Democrats are going to have a much easier time Committee.
Speaker 1: Democrats getting these nominees out of committee into the floors.
Speaker 1: As you mentioned, there were there were deadlocks on nominees
Speaker 1: lost Congress. There were actually a couple of de banning
Speaker 1: of this Congress because the committee didn't have its new
Speaker 1: membership yet, so those were a little unexpected. But now
Speaker 1: that it has this you know, additional vote with the
Speaker 1: Senator Peter Welsh, they are able to actually get some
Speaker 1: of these nominees out of committee and have been able
Speaker 1: to get nominees out of committee who did deadlock Congress,
Speaker 1: so those nominations are finally moving forward. One of those
Speaker 1: nominees is Dale Hoe, who's nominated to the Southern Districts
Speaker 1: of New York. He's an ACLU voting rights attorney, and
Speaker 1: his nomination had deadlocks. But now he is now on
Speaker 1: the floor, so it's it's already paying dividends. So now
Speaker 1: I wanted to talk about this nominee from New Hampshire
Speaker 1: that both progressives and Republicans were pushing back on. All right,
Speaker 1: So one of Biden's nominees to the First Circuit, Michael Delaney,
Speaker 1: he had his confirmation hearing last week and got some
Speaker 1: some pushback from progressive you know, sexual violence awareness groups
Speaker 1: and Republicans for his involvement in litigation with a student
Speaker 1: who was a victim of sexual harassment. He was the
Speaker 1: lawyer for the school in this litigation. And um, the
Speaker 1: critics really focused on an emotion that Sally Knew filed
Speaker 1: during proceedings for the then teenage victim to shed her
Speaker 1: anonymity and um, you know, come forward with her name
Speaker 1: on the record. Yeah, And so the victim wrote to
Speaker 1: the committee urging the centators to vote no. And um,
Speaker 1: the National Alliance to End Sexual Violence express concerns. So
Speaker 1: where does that nomination stand? So, you know, I spoke
Speaker 1: to some Democrats on the committee about this before they
Speaker 1: got out of town, and they they're reviewing his record.
Speaker 1: H That's really the most um common answer that I
Speaker 1: heard was that they were reviewing his his background. But
Speaker 1: he still has support from the White House. Um, he
Speaker 1: still has support from at least one of his home
Speaker 1: state senators. You know. And when I supposed to Durban
Speaker 1: about this, you know, Jared Durban mentioned that he kind
Speaker 1: of had a difficult situation explaining this, and he pointed
Speaker 1: to the amount of support Delimi had and and said
Speaker 1: he hoped that his state wouldn't be decided by this
Speaker 1: controversial issue. This is so interesting too, because the last
Speaker 1: time there was a nomny that progressives were really opposing,
Speaker 1: Republicans supported that, not many, like tenfold. It was the
Speaker 1: unanimous side of committee. I think they might have even
Speaker 1: voice voted her on the floor, So this was kind
Speaker 1: of the first time you see Republicans and progressives on
Speaker 1: the same side, at least that I can think of.
Speaker 1: Thanks so much, Madison. That's Bloomberg Law reporter Madison Alder,
Speaker 1: and that's it for this edition of The Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news on
Speaker 1: our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify,
Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law,
Speaker 1: and remember to tune in to The Bloomberg Law Show
Speaker 1: every week night at ten pm Wall Street Time. I'm
Speaker 1: June Grosso, and you're listening to Bloomberg