WEBVTT - Justices Seem Hesitant to Upend Section 230 0:00:03.080 --> 0:00:08.280 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:09.520 --> 0:00:14.360 The Supreme Court justices expressed wariness during oral arguments about 0:00:14.440 --> 0:00:18.759 opening Internet companies to lawsuits stemming from harmful user posts. 0:00:18.920 --> 0:00:22.800 The justices were hearing a case challenging section two thirty 0:00:22.920 --> 0:00:26.920 of the Communications Decency Act, it protects online companies from 0:00:26.960 --> 0:00:30.680 being sued over the comments, ads, pictures, and videos on 0:00:30.720 --> 0:00:34.400 their platforms. The case involved a twenty three year old 0:00:34.520 --> 0:00:37.600 US citizen who was one of one hundred thirty people 0:00:37.760 --> 0:00:40.800 killed in attacks by the Islamic State group in Paris 0:00:41.200 --> 0:00:44.919 in November of twenty eighteen. Her family says Google, through 0:00:44.960 --> 0:00:49.519 its algorithm driven YouTube recommendations, aided the Islamic State in 0:00:49.680 --> 0:00:53.559 violation of the US Anti Terrorism Act, but Justice Clarence 0:00:53.600 --> 0:00:57.680 Thomas suggested that companies can't be sued if their recommendation 0:00:57.800 --> 0:01:01.720 algorithms are neutral about the kind of content they promote. 0:01:02.240 --> 0:01:05.240 If it's the same algorithm, I think you have to 0:01:05.319 --> 0:01:09.160 give us a clear example of what your point is. 0:01:09.200 --> 0:01:14.959 Exactly the same algorithm to present cooking videos to people 0:01:15.000 --> 0:01:19.959 who are interested in cooking and ISIS videos the people 0:01:19.959 --> 0:01:23.920 who are interested in ISIS racing videos the people who 0:01:23.920 --> 0:01:26.840 are interested in racing. Then I think you're going to 0:01:26.920 --> 0:01:30.080 have to explain more clearly if it's neutral in that way, 0:01:30.640 --> 0:01:35.160 how your claim is set Apart from that. Joining me 0:01:35.240 --> 0:01:37.880 is Harold Crant, a professor at the Chicago Kent College 0:01:37.880 --> 0:01:40.480 of Law. Before we talk about the Supreme Court arguments, 0:01:40.520 --> 0:01:44.840 just explain what the case is about. This case concerns 0:01:44.840 --> 0:01:50.920 a action under the Terrorist Statutes directed against Google, who 0:01:50.960 --> 0:01:56.760 operates YouTube, for aiding and abetting terrorism. The argument in 0:01:56.800 --> 0:02:01.400 this case was that YouTube, by suggesting certain videos, helps 0:02:01.520 --> 0:02:06.440 radicalize people and helps therefore helps aids ISIS into recruiting 0:02:06.480 --> 0:02:11.480 new members. And the legal issue that arises out of 0:02:11.520 --> 0:02:15.000 this challenge is whether or not a cause of action 0:02:15.200 --> 0:02:20.840 can be maintained against Google for fostering sharing of these videos, 0:02:20.880 --> 0:02:23.520 and then, if so, whether a proper cause of action 0:02:23.880 --> 0:02:28.799 has been pled. The first issue revolves around the Community 0:02:28.880 --> 0:02:33.760 Decencies Act Section to thirty, immunity for Internet computer services 0:02:33.840 --> 0:02:39.440 when they simply allow for external videos to be seen 0:02:39.760 --> 0:02:43.360 or retrieved from their site. And to thirty was a 0:02:43.480 --> 0:02:47.320 key instrument in trying to develop the Internet by allowing 0:02:47.680 --> 0:02:53.000 platforms to allow others to publish videos and other works 0:02:53.040 --> 0:02:56.640 on sites without then letting the platform be sued in 0:02:56.720 --> 0:03:00.640 case some of those informations were in this case terrorism, 0:03:00.680 --> 0:03:05.880 but in other cases involving defamation, or involving trademark infringement 0:03:06.160 --> 0:03:10.320 and so forth. So by immunizing the platforms, they really 0:03:10.360 --> 0:03:14.520 gave rise to the twitters that facebooks, the Googles of 0:03:14.560 --> 0:03:18.520 the world, which can basically then grab all this material 0:03:19.000 --> 0:03:22.160 or have all this material be deposit on their site 0:03:22.360 --> 0:03:24.959 and therefore available for those of us who want to 0:03:25.160 --> 0:03:28.639 search for things, or want to contact friends or see 0:03:28.760 --> 0:03:32.079 as in this case videos. Did it strike you that 0:03:32.080 --> 0:03:36.240 there were some top concerns that the justices had about 0:03:36.240 --> 0:03:39.640 the plaintiff's lawsuit. Absolutely, this is one of these few 0:03:39.680 --> 0:03:43.600 cases where I don't think that the justices were hiding 0:03:44.240 --> 0:03:47.840 us of beliefs. I think that their inclination to rule 0:03:48.360 --> 0:03:51.720 on behalf of the defendant was quite clear. But the 0:03:51.760 --> 0:03:55.360 issue remains about which type of decision they may want 0:03:55.360 --> 0:03:58.200 to issue. And let me break that down into two parts, 0:03:58.320 --> 0:04:01.280 because the first part was whether or not Google can 0:04:01.320 --> 0:04:04.240 be protected by Section two thirty or not, and the 0:04:04.280 --> 0:04:07.640 second is whether there is a valid cause of action pled. 0:04:08.160 --> 0:04:10.840 It's pretty clear to me that the Court is going 0:04:10.880 --> 0:04:14.680 to say that if you just have an algorithm recommend 0:04:14.840 --> 0:04:18.200 a video that's not aiding and embedding. So I think 0:04:18.240 --> 0:04:22.160 that there was no inclination amongst the justices to be 0:04:22.240 --> 0:04:25.919 sympathetic with plaintiffs in that respect, and on that issue 0:04:26.040 --> 0:04:28.760 they said, look, I mean, you can say look at 0:04:28.760 --> 0:04:31.120 this video, or you can say you might want to 0:04:31.160 --> 0:04:34.000 see this video, or you can say go over there 0:04:34.000 --> 0:04:36.440 and look at a stack of books. That's simply not 0:04:36.800 --> 0:04:40.640 enough to state any kind of tortious behavior. So I 0:04:40.640 --> 0:04:44.040 think on the ultimate issue of whether a tort was committed, 0:04:44.440 --> 0:04:46.880 the court may just say, no, we don't need to 0:04:46.920 --> 0:04:50.880 reach the more difficult and tractable issue of how large 0:04:50.960 --> 0:04:54.240 it is community created by section two thirty. But much 0:04:54.240 --> 0:04:56.920 of the argument was spent on what should we do 0:04:57.279 --> 0:05:00.680 as a court about the scope of two thirty immunity 0:05:00.680 --> 0:05:03.640 because the sort of algorithms that are used by Google 0:05:03.680 --> 0:05:07.479 and Twitter, Facebook in terms of Facebook feeds certainly didn't 0:05:07.480 --> 0:05:10.359 exist at the time that the community decency at Community 0:05:10.680 --> 0:05:12.719 was put into effect. So much of the discussion than 0:05:12.760 --> 0:05:15.960 we evolved around how do we draw a line between 0:05:16.520 --> 0:05:22.200 when a platform says this video is available or the 0:05:22.279 --> 0:05:25.520 platform says you might want them to see this video, 0:05:25.920 --> 0:05:29.680 or the platform says you may like this video, is 0:05:29.760 --> 0:05:34.080 dead enough to lose immunity, because then it's as if 0:05:34.160 --> 0:05:38.240 the platform becomes a publisher by saying you're going to 0:05:38.320 --> 0:05:42.800 like this video, and no one knows. Lots of hypotheticals 0:05:42.800 --> 0:05:45.400 were raised, but it's the kind of case where at 0:05:45.440 --> 0:05:48.320 the end of the day, as some of Justice has said, 0:05:48.400 --> 0:05:50.880 if this is so difficult, and this may cause such 0:05:51.000 --> 0:05:55.360 a risk to the continued development of the Internet, maybe 0:05:55.400 --> 0:05:58.440 we should let Congress make these difficult lines and we 0:05:58.440 --> 0:06:01.240 shouldn't try to ourselves. Did it seem to you as 0:06:01.279 --> 0:06:08.160 if the justices just didn't even accept the plaintiff's basic argument, 0:06:08.440 --> 0:06:13.040 Justice Alito said, I admit, I'm completely confused by whatever 0:06:13.279 --> 0:06:16.800 argument you're making at the present time. Well, I mean, 0:06:16.800 --> 0:06:19.720 I think that the difficulty was that the Council for 0:06:19.760 --> 0:06:22.960 the Plane of backtracked from much that was in their 0:06:23.040 --> 0:06:26.080 brief and try to make a much more narrow argument 0:06:26.120 --> 0:06:29.680 that he thought was more defensible, And he basically said 0:06:29.720 --> 0:06:32.560 that there was no duty on the platform to take 0:06:32.600 --> 0:06:37.160 down the videos, and that the Google was not couldn't 0:06:37.200 --> 0:06:41.840 be civilly liable simply for housing the videos, even if 0:06:41.839 --> 0:06:45.719 they were an incitement to terrorism. What he argued instead 0:06:45.920 --> 0:06:50.800 was a more narrow version is that by reorganizing the videos, 0:06:51.240 --> 0:06:56.120 by prioritizing videos through this algorithm, that then that crossed 0:06:56.120 --> 0:07:01.520 the line in terms of Google becoming a publisher and 0:07:01.760 --> 0:07:05.840 therefore no longer subject to the immunity created by Section 0:07:05.920 --> 0:07:07.960 two thirty. And that's why I think through a lot 0:07:08.000 --> 0:07:11.000 of the justices off the more narrow version of the 0:07:11.160 --> 0:07:16.560 argument that plaintiff was raising. The concern before the oral 0:07:16.680 --> 0:07:20.840 arguments was that this would open Google and Internet platforms 0:07:21.000 --> 0:07:24.600 up to all kinds of lawsuits. Was that addressed in 0:07:24.600 --> 0:07:28.720 the oral arguments? Absolutely? I mean the number of briefs 0:07:28.760 --> 0:07:33.000 were filed that raised a parade of horribles that Google 0:07:33.240 --> 0:07:37.160 and Facebook will be subject to defamation cases, subject to 0:07:37.240 --> 0:07:43.480 privacy cases, trademark cases, if Section too thirty immunity was 0:07:43.840 --> 0:07:46.640 tampered with. And I think the reason is that it's 0:07:46.720 --> 0:07:49.560 so difficult to figure out what it is where the 0:07:49.600 --> 0:07:54.280 line is between a platform simply saying come look at 0:07:54.280 --> 0:07:56.880 the videos here. That's what people do to sell things, 0:07:56.920 --> 0:08:00.480 they publicize them, and when is it okay? Besides and 0:08:00.480 --> 0:08:03.360 say you may be interested in this article or this 0:08:03.680 --> 0:08:07.680 video as opposed to when you actually becoming caruts with 0:08:07.960 --> 0:08:12.600 the video because you prioritize it in some ways. And 0:08:12.600 --> 0:08:15.880 the Narrow arguments that the plaint of game was by 0:08:16.120 --> 0:08:20.640 giving a little thumbnail that YouTube creates in other ways, 0:08:20.680 --> 0:08:23.520 just a little brief sort of taste of what the 0:08:23.640 --> 0:08:27.840 video is. That that really crossed the line. And then 0:08:28.080 --> 0:08:30.680 YouTube became just as if it was creating something. It 0:08:30.760 --> 0:08:33.800 was creating like a mini advertisement, and that little mini 0:08:33.840 --> 0:08:37.600 advertisement was enough to give rise to liability and to 0:08:37.679 --> 0:08:40.959 avoid immunity. And the United States is the meekest was 0:08:41.000 --> 0:08:44.160 sympathetic to that view. The United States clearly said there's 0:08:44.200 --> 0:08:47.280 not enough for itting and a betting liability here. But 0:08:47.360 --> 0:08:50.040 the United States says, you know, look, once you create 0:08:50.080 --> 0:08:54.480 any kind of semi advertising platform, be it through a 0:08:54.920 --> 0:08:56.959 you should look at this first. To come here and 0:08:57.080 --> 0:09:02.359 look at this new video. You're responsible for that that product, 0:09:02.440 --> 0:09:06.160 for that kind of statement yourself, and then you're no 0:09:06.200 --> 0:09:11.200 longer immune for at least that kind of advertising or 0:09:11.200 --> 0:09:17.600 promotions prioritization or organization, even if you still remain immune 0:09:17.600 --> 0:09:21.160 from liability for the video itself. Do you think that 0:09:21.679 --> 0:09:26.360 the justices can come to a decision here without specifically 0:09:26.440 --> 0:09:30.280 ruling on section two thirty. So the court has a 0:09:30.320 --> 0:09:32.440 couple of different options in front of it. First of all, 0:09:32.520 --> 0:09:34.360 coag just say, whatever is going on in this case, 0:09:34.600 --> 0:09:38.360 there's no aiding and abetting liability here, So we reserve 0:09:38.400 --> 0:09:42.280 the right to questions the scope of two thirty immunity 0:09:42.760 --> 0:09:45.800 for a different day. That's one option. Another option is 0:09:45.840 --> 0:09:49.280 they can say, this is a difficult line drawing issue 0:09:49.360 --> 0:09:53.000 about when does a platform liability not become a publisher 0:09:53.040 --> 0:09:56.800 through its organizational and prioritization of other work, and they 0:09:56.800 --> 0:09:59.599 can try to find a line. A line not surprisingly 0:09:59.679 --> 0:10:04.640 drawn by Google was that if the harm comes from 0:10:04.679 --> 0:10:10.120 the prioritization, where the harm comes from the publicizing, then 0:10:10.240 --> 0:10:12.520 there should be no immunity. But of course that's a 0:10:12.559 --> 0:10:16.120 convenient test for Google because that googleman's in almost every case, 0:10:16.720 --> 0:10:19.600 not every case, but almost every case. The other third 0:10:19.640 --> 0:10:22.800 tech the court could just take was this is a 0:10:22.840 --> 0:10:26.240 new issue that Congress has not fully fought through when 0:10:26.240 --> 0:10:30.000 it passed the Communications Decency Act. It's very difficult. We 0:10:30.000 --> 0:10:34.199 have a new age of AI and other kinds of algorithms, 0:10:34.320 --> 0:10:36.839 and we're going to let Congress take the lead if 0:10:36.880 --> 0:10:39.920 it wants to change the immunity for platforms such as 0:10:40.200 --> 0:10:44.480 Twitter and Google. Did anyone mention the original authors of 0:10:44.559 --> 0:10:49.480 section two thirty Oregon Democratic Senator Ron widen In former 0:10:49.600 --> 0:10:55.360 California Republican Representative Chris Cox explained they're thinking behind the 0:10:55.440 --> 0:10:59.520 legislation in a brief to the court, and they said 0:10:59.600 --> 0:11:05.080 that algorithmic recommendations are direct descendants of the early content 0:11:05.240 --> 0:11:09.199 curation efforts that Congress had in mind when enacting section 0:11:09.320 --> 0:11:12.319 to thirty. Does that have any relevance at all? Was 0:11:12.320 --> 0:11:16.120 that mentioned at all? So the names of the sponsors 0:11:16.120 --> 0:11:18.959 of the Community Decency Act were not mentioned in to 0:11:19.080 --> 0:11:22.120 my recall, but there was some discussion of that kind 0:11:22.120 --> 0:11:25.800 of legislative history, that the drafters that bill were aware 0:11:26.080 --> 0:11:30.560 of algorithmic type uses. They didn't dominate at the time, 0:11:31.000 --> 0:11:33.680 but they were around in their infancy. And so the 0:11:33.800 --> 0:11:37.880 question is, then, if the drafters were aware of the 0:11:37.960 --> 0:11:42.360 potential for algorithms, were they trying to protect those as well? 0:11:42.600 --> 0:11:45.920 About the use of language in the immunity section. And 0:11:45.960 --> 0:11:49.199 it was interesting because you know, the community Section can 0:11:49.240 --> 0:11:52.240 be interpreted different ways. It can be interpreted through the 0:11:52.320 --> 0:11:55.559 lens of common law deformation actions, it can be interpreted 0:11:55.600 --> 0:11:58.600 through the brief language that's in the immunity section as well. 0:11:58.640 --> 0:12:00.680 And so there was some effort not only looking at 0:12:00.760 --> 0:12:03.880 legislative history, but looking at the plain language as well 0:12:03.920 --> 0:12:07.360 as common law and the students of this immunity section. 0:12:07.559 --> 0:12:08.960 But I think at the end of the day, those 0:12:09.040 --> 0:12:11.440 arguments are not going to win out. I think the 0:12:11.520 --> 0:12:15.080 question is really that the court was stumbling on, is okay, 0:12:15.160 --> 0:12:18.960 theoretically there are some bad algorithms out there. Everybody agreed 0:12:19.240 --> 0:12:22.480 that if an algorithm tend to do differentiate on the 0:12:22.520 --> 0:12:25.960 basis of race, for instance, that then the platforms would 0:12:25.960 --> 0:12:30.400 not escape liability because then the harm would be caused 0:12:30.679 --> 0:12:34.560 by the algorithm itself. But at what point would a 0:12:34.640 --> 0:12:38.080 neutral algorithm? And everybody agreed that this algorithm that was 0:12:38.160 --> 0:12:42.160 challenge was neutral in the sense that it treated people 0:12:42.240 --> 0:12:47.720 liking pet cats and the terrorists videos the same in 0:12:47.840 --> 0:12:50.319 terms of how the algorithm works. That at what point 0:12:50.320 --> 0:12:53.800 would sort of a neutral algorithm be subject to suit 0:12:54.240 --> 0:12:57.120 was the question, and how do you draw the line? 0:12:57.320 --> 0:13:00.560 And that was daunting, I think at over our both 0:13:00.640 --> 0:13:05.120 to the attorneys representing their parties as well as to 0:13:05.240 --> 0:13:07.840 the justices. And so again I think The three choices 0:13:07.880 --> 0:13:11.840 are the court may just pump and say will await Congress. 0:13:12.120 --> 0:13:14.640 They can try to draft some kind of wine itself 0:13:14.679 --> 0:13:17.960 which did not come clearly through a dooral argument, or 0:13:18.040 --> 0:13:21.000 they can just avoid the whole question by saying, whatever 0:13:21.040 --> 0:13:23.720 this is, there's no aiding and betting going on here, 0:13:24.080 --> 0:13:27.040 simply by use of an algorithm, So we don't have 0:13:27.080 --> 0:13:31.000 to talk about or reach the scope of immunity under 0:13:31.040 --> 0:13:35.480 their Community Decency Act. Was it surprising? Justice Amy Coney 0:13:35.520 --> 0:13:40.559 Barrett asked the plaintiff's attorney to confirm that the legal 0:13:40.600 --> 0:13:46.400 theory he was advancing would not protect individual Internet users retweeting, sharing, 0:13:46.520 --> 0:13:50.880 or liking other people's content, and he said that it 0:13:50.920 --> 0:13:56.720 would cover people retweeting or liking. Justice Barrett asked about 0:13:56.720 --> 0:14:02.520 whether retweeting could land someone in jeopardy for retweeting a 0:14:02.559 --> 0:14:06.520 defamatory statement, and other justices chimed in that that's a 0:14:06.559 --> 0:14:11.480 difficulty because in terms of if you republish a defamatory 0:14:11.760 --> 0:14:14.480 statement in the newspaper, the newspaper can also be sued 0:14:14.720 --> 0:14:18.800 for defamation. So the council had to wrestle with that 0:14:19.200 --> 0:14:23.960 because there is a possibility that if the plaintiff's theory 0:14:24.000 --> 0:14:28.360 of the case were accepted that those who retweeted thoughtlessly 0:14:28.840 --> 0:14:33.600 might be subject to lawsuits as well, But everybody hastened 0:14:33.640 --> 0:14:38.440 to add that's not directly at stake in this particular case. 0:14:38.480 --> 0:14:42.120 Because this case had to do with not republishing, but 0:14:42.360 --> 0:14:48.600 rather platform organizing or platform prioritization of videos for others 0:14:48.600 --> 0:14:51.960 to watch. The Court didn't have to take this case 0:14:52.000 --> 0:14:54.240 because there wasn't a split in the circuits. Why do 0:14:54.240 --> 0:14:57.360 you think they took this case and the Twitter case? 0:14:58.320 --> 0:15:02.840 So I've wondered why the court accepted this case, and 0:15:03.560 --> 0:15:06.880 I haven't come up with a very convincing response in 0:15:06.920 --> 0:15:10.040 my own mind with this caveat. There is such a 0:15:11.000 --> 0:15:14.800 controversy brewing on the political parties about big tech and 0:15:14.880 --> 0:15:19.240 if big tech is good or bad for the country, 0:15:19.520 --> 0:15:23.280 and two thirty immunity was one of the major arguments 0:15:23.320 --> 0:15:26.480 that has been booted back and forth by the political 0:15:26.520 --> 0:15:28.560 parties as to whether or not it's a good or 0:15:28.640 --> 0:15:31.640 bad thing, and whether or not it's letting big tech 0:15:31.920 --> 0:15:34.640 get away with too much. So this may have been 0:15:34.680 --> 0:15:37.880 a first effort for the court, in its own mind, 0:15:37.920 --> 0:15:41.600 to be responsible and try to wrestle with two thirty. 0:15:41.800 --> 0:15:45.680 In order to sort of depoliticize to some extent the 0:15:45.800 --> 0:15:48.240 role of big tech in our country. I don't know 0:15:48.240 --> 0:15:51.680 if theory has any kind of legs, but if so, 0:15:52.480 --> 0:15:54.360 I think that big tech is going to look pretty 0:15:54.360 --> 0:15:57.200 good after this case is over. I know that Justice 0:15:57.240 --> 0:16:01.080 any Coney Barrett did talk about the case against Twitter. 0:16:01.240 --> 0:16:03.160 So if you lose tomorrow, do we even have to 0:16:03.200 --> 0:16:06.360 reach the section to thirty question here? How much did 0:16:06.600 --> 0:16:10.240 the case against Twitter come up? The case against Twitter 0:16:10.280 --> 0:16:12.800 came up a lot because the kids against Twitter it 0:16:12.880 --> 0:16:16.760 revolves around the question of the validity of the aiding 0:16:16.800 --> 0:16:23.240 and abetting argument, and the courts seemed to overwhelmingly oppose 0:16:23.360 --> 0:16:26.560 the notion the Twitter or any other platforom can aid 0:16:26.600 --> 0:16:32.400 in a bet merely by offering someone to view a 0:16:32.520 --> 0:16:35.640 incendury in this case, an incendury video in another case 0:16:35.640 --> 0:16:39.200 it could be some kind of defamatory tweet or something 0:16:39.400 --> 0:16:42.880 else along those lines. That aiding and betting have to 0:16:42.920 --> 0:16:47.080 be much more according to the court. So I'm not 0:16:47.160 --> 0:16:50.120 sure what there's going to be for argument for two 0:16:50.120 --> 0:16:53.120 hours tomorrow because it looks like most of that argument 0:16:53.360 --> 0:16:56.240 already took place here. But you know, maybe the court 0:16:56.240 --> 0:16:59.160 will have some twists and turns to cover to make 0:16:59.240 --> 0:17:02.240 up for something that they regret not covering. From what 0:17:02.280 --> 0:17:04.440 you're saying and from what the Justice has said, it's 0:17:04.600 --> 0:17:09.160 it sort of seems like a very logical conclusion that 0:17:09.240 --> 0:17:13.040 you know, just by having these algorithms, you're not aiding 0:17:13.040 --> 0:17:16.280 in a betting terrorism. It does. On the other hand, 0:17:16.640 --> 0:17:21.879 but for YouTube, but for Facebook, terrorists might not be 0:17:21.920 --> 0:17:25.440 able to operate so freely and more people now see 0:17:26.040 --> 0:17:30.640 provisis videos and ever could have before because of Internet 0:17:30.680 --> 0:17:36.160 platforms like YouTube and Facebook. And that's that's the danger here. 0:17:36.400 --> 0:17:37.919 I mean, it is true that in terms of you 0:17:38.080 --> 0:17:43.800 just looked at common sense responsibility for aiding terrorism, platforms 0:17:43.840 --> 0:17:46.480 do it, and there's no question about it. But whether 0:17:46.520 --> 0:17:49.560 there's criminal liability or even whether there's civil liability under 0:17:49.600 --> 0:17:52.600 the aid terrorist statues, I think that's a that's a 0:17:52.640 --> 0:17:55.240 more difficult question. Thanks for being on the show. How 0:17:55.560 --> 0:17:58.960 that's Professor Harold crant Other, Chicago Kent College of Law. 0:18:00.560 --> 0:18:05.520 President Biden surpassed one hundred judicial confirmations last week, including 0:18:05.600 --> 0:18:08.919 Katangi Brown Jackson to the Supreme Court, but most of 0:18:08.920 --> 0:18:11.760 his circuit and district court appointments have been in Blue 0:18:11.800 --> 0:18:16.000 states or those represented by Senate Democrats, who narrowly control 0:18:16.080 --> 0:18:20.160 the chamber. Finding common ground with Republicans will be vital 0:18:20.200 --> 0:18:23.680 to the Biden administration, since thirty eight of the fifty 0:18:23.680 --> 0:18:28.480 six trial court vacancies without appending nominee are in Red states. 0:18:29.400 --> 0:18:33.439 Joining me is Madison Alder Bloomberg Law reporter. I'd like 0:18:33.480 --> 0:18:37.440 you first to explain the process is different for nominees 0:18:37.480 --> 0:18:41.160 for district court as opposed to circuit court. So explain 0:18:41.240 --> 0:18:45.400 the difference. Right, So, district court still needs support from 0:18:45.480 --> 0:18:48.720 both of their home state senators through a process known 0:18:48.880 --> 0:18:53.280 as the blue slips. Player senators send in its physical 0:18:53.520 --> 0:18:57.080 flip of paper to signify that they agree with the 0:18:57.160 --> 0:19:01.000 nominee that was abandoned for a Pellet nominees under Trump, 0:19:01.400 --> 0:19:05.879 and Democrats have held that same policy under Biden, where 0:19:06.400 --> 0:19:08.879 the pelt nominees don't need home state senators support, but 0:19:08.920 --> 0:19:12.480 district nominees still do. There are fifty six trial court 0:19:12.600 --> 0:19:17.680 vacancies that don't have a nominee, even suggested right, there are. 0:19:17.720 --> 0:19:21.320 There are quite a few district court vacancies. Now Biden 0:19:21.400 --> 0:19:25.720 has has prioritized circuit vacancies and Billy nominated a lot 0:19:25.720 --> 0:19:29.719 of folks for the open beats. So now there are 0:19:29.920 --> 0:19:33.280 are quite a few district vacancies, and the majority of 0:19:33.280 --> 0:19:37.520 those are in states with a Republican senator because home 0:19:37.600 --> 0:19:41.600 state support is still needed on those. It'll be interesting 0:19:41.640 --> 0:19:45.359 to see how the White House goes about negotiations with 0:19:45.640 --> 0:19:47.840 senators in those states and what those nominees end up 0:19:47.840 --> 0:19:50.639 looking like. There are still a lot of vacancies in 0:19:51.000 --> 0:19:55.680 blue states. Why aren't they sort of up to date? Well, 0:19:55.720 --> 0:19:58.480 there's you know, there's there's still a few nominees in 0:19:58.680 --> 0:20:01.879 our vacancies. Excuse me. In blue states, there's quite a 0:20:01.920 --> 0:20:06.320 few nominees pending. So after the beginning of the new Congress, 0:20:06.400 --> 0:20:10.840 the White House renominated a whole batch of nominees that 0:20:10.920 --> 0:20:14.080 were pending in the last Congress. Any nominee who wasn't 0:20:14.119 --> 0:20:16.040 confirmed at the end of the last Congress, just as 0:20:16.200 --> 0:20:19.440 kind of a matter of practice, needs to be renominated 0:20:19.520 --> 0:20:21.879 at the beginning of a new Congress. And all of 0:20:21.920 --> 0:20:25.800 those nominees are either on the floor or had their hearings, 0:20:25.880 --> 0:20:28.560 So the Senate still needs to get through those. They 0:20:28.600 --> 0:20:30.280 still have work to do, and a lot of those 0:20:30.320 --> 0:20:32.680 are nominees in Blue states as well. But there are 0:20:32.720 --> 0:20:36.399 handful of seats they're still open. So um, you know, 0:20:37.520 --> 0:20:40.920 there there's only a finite number of days that um, 0:20:41.280 --> 0:20:44.199 you know, the Sunate Judiciary Committee can have hearings and 0:20:44.800 --> 0:20:47.880 you know, then have floor votes on no nominees. So 0:20:48.320 --> 0:20:51.959 you know, last Congress, I think the White House obviously 0:20:52.040 --> 0:20:55.600 prioritize nominees, but they still left it if you handful 0:20:55.640 --> 0:20:58.359 of seats in blue states, just because there's kind of 0:20:58.359 --> 0:21:01.119 the constraints of that process and the limited number of 0:21:01.520 --> 0:21:05.320 days on the calendar to actually get nominees through in 0:21:05.359 --> 0:21:09.280 a red state, is it normally if there is you know, 0:21:09.520 --> 0:21:14.080 an usual process, does the Biden administration suggest a nominee 0:21:14.600 --> 0:21:18.600 or does the home state senator suggest a nominee? So 0:21:18.760 --> 0:21:21.960 I spoke to Page her Wig, a senior White House 0:21:22.000 --> 0:21:24.440 Council who who works on jeration nominations, and she said, 0:21:24.480 --> 0:21:28.080 the administration is looking for people in these conversations that 0:21:28.320 --> 0:21:30.960 makes sense for a Democratic president to nominate, but who 0:21:31.000 --> 0:21:34.520 will get the necessary backing from home state senators. And 0:21:35.119 --> 0:21:37.680 you know they believe it that there are plenty of 0:21:37.720 --> 0:21:40.480 candidates out there who will fit that bill. Those conversations 0:21:40.520 --> 0:21:43.840 can look anything like the White House bringing names the 0:21:44.240 --> 0:21:48.000 home state senators bringing names. I think it really differs 0:21:48.160 --> 0:21:51.800 from state to state, depending on you know, what the 0:21:51.880 --> 0:21:56.400 area looks like to for those conversations. Now, Biden has 0:21:56.440 --> 0:22:01.320 had success in finding mutually agreeable nominees in red states 0:22:01.440 --> 0:22:05.359 of Iowa, Idaho, and Indiana. Is there a reason why 0:22:05.640 --> 0:22:09.840 those states have been, you know, easier to find nominees for? 0:22:10.119 --> 0:22:13.040 Is it the senators there? Well, I mean I think 0:22:13.080 --> 0:22:15.200 it could be. It could be the senators. Um, you know, 0:22:15.240 --> 0:22:18.639 I spoke to Senator Mike Braun who is the Republican 0:22:18.720 --> 0:22:20.919 in Indiana, and talk to him a little bit about 0:22:21.040 --> 0:22:24.000 how how this nomination in his state came to be 0:22:24.320 --> 0:22:27.160 and and he said it was an easy checkoff for him, 0:22:27.280 --> 0:22:30.840 the nomination of Matthew Brookman, who's currently a magistrate judge 0:22:30.880 --> 0:22:33.520 to a district courd in his state. Not every nominee 0:22:33.560 --> 0:22:36.240 is going to be as easy as the checkoff, depending 0:22:36.240 --> 0:22:38.960 on their backgrounds. So, you know, it'll probably depend on 0:22:39.560 --> 0:22:43.440 what nominees or what candidates arise in those conversations. It 0:22:43.520 --> 0:22:46.320 can also depend on you know, who the lawmakers are 0:22:46.400 --> 0:22:50.960 and in what the area looks like. So some states 0:22:51.040 --> 0:22:54.600 might be easier than others to have these kinds of 0:22:54.760 --> 0:22:59.960 conversations with and Republican Senator John Cornin of Texas complaint 0:23:00.240 --> 0:23:02.840 get a Judiciary committee, meaning that the White House hadn't 0:23:02.840 --> 0:23:05.440 reached out to him even and there are a lot 0:23:05.440 --> 0:23:10.119 of vacancies in his state. So John Cornyn um of 0:23:10.240 --> 0:23:13.560 Texas represents the state with six vacancies, which is the 0:23:13.840 --> 0:23:16.439 second most vacancies of any of the states out there 0:23:16.440 --> 0:23:19.159 that don't of these seats that don't offending nominees and 0:23:19.240 --> 0:23:23.879 district courts. And he was not pleased with how the 0:23:23.880 --> 0:23:27.440 White House had been communicating on this. He felt that, um, 0:23:27.480 --> 0:23:29.320 he had communicated with the White House and the White 0:23:29.320 --> 0:23:32.760 House hadn't gotten back to him quickly enough on their end, 0:23:33.000 --> 0:23:36.840 And UM, you know that could that could mean you 0:23:36.880 --> 0:23:39.159 know that if there's six seats in the state, that 0:23:39.280 --> 0:23:43.399 that's that's not great for those conversations. I mean, it 0:23:43.440 --> 0:23:47.280 could potentially leave six seats on the table. But I 0:23:47.280 --> 0:23:50.399 guess we'll see how that that shakes out. Um. I 0:23:50.440 --> 0:23:54.480 think he definitely expressed disappointment, and um, you know, Lindsey Grahams, 0:23:54.480 --> 0:23:57.240 who is now the ranking member of the ranking Republican 0:23:57.280 --> 0:23:59.760 on the Senate of Judiciary Committee kind of echoed his 0:23:59.760 --> 0:24:02.600 his concerns at a recent hearing as well and said, 0:24:02.640 --> 0:24:04.360 you know, there has to be a willingness to consult, 0:24:04.440 --> 0:24:07.399 that it's got to be a two way straight. Of course, 0:24:07.880 --> 0:24:11.480 all of these conversations are coming as there's a lot 0:24:11.480 --> 0:24:15.239 of progressive pressure to eliminate the blue slip entirely at 0:24:15.240 --> 0:24:18.679 the district court level. I think that's definitely is context 0:24:18.800 --> 0:24:22.880 for all of these negotiations right now, is that there's 0:24:22.960 --> 0:24:26.760 quite a lot of pressure. It's increased, I think in 0:24:26.760 --> 0:24:29.399 this new Congress to just get get rid of the 0:24:29.400 --> 0:24:32.879 blue slips so Biden could move nominees forward in district 0:24:32.920 --> 0:24:38.280 courts without having to associate with Republican senators and progressive sphere. 0:24:38.400 --> 0:24:41.080 That this will take a long time, and you know, 0:24:41.200 --> 0:24:45.000 the nominees might end up being more of a compromised 0:24:45.040 --> 0:24:49.639 pick between Republicans and the White House. But the chair 0:24:49.720 --> 0:24:54.359 of the Judiciary Committee, Senator Dick Durbin, to me, it 0:24:54.400 --> 0:24:57.920 seems like he's been reluctant to make any changes even 0:24:57.960 --> 0:25:02.119 with you know, having more nominee. He's eddy cheering, right. 0:25:02.320 --> 0:25:07.560 So Senator durban has has really maintained the same practices 0:25:07.640 --> 0:25:12.560 here that Republicans had during the Trump administration, and that 0:25:12.600 --> 0:25:15.600 means keeping the blue slip for district courts in place. 0:25:16.560 --> 0:25:20.080