1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,800 --> 00:00:13,000 Speaker 2: It's a very complicated case involving a challenge to the 3 00:00:13,080 --> 00:00:17,120 Speaker 2: drawing of a black majority district in Louisiana. But one 4 00:00:17,160 --> 00:00:19,920 Speaker 2: thing was clear during the two and a half hours 5 00:00:19,960 --> 00:00:23,919 Speaker 2: of oral arguments at the Supreme Court. The six conservative 6 00:00:24,200 --> 00:00:27,520 Speaker 2: justices are ready to limit a key part of the 7 00:00:27,640 --> 00:00:31,120 Speaker 2: Voting Rights Act that, for more than half a century 8 00:00:31,440 --> 00:00:36,080 Speaker 2: has been a guardrail against racially gerrymandered maps that dilute 9 00:00:36,120 --> 00:00:39,800 Speaker 2: the votes of minorities. The law was passed in response 10 00:00:39,880 --> 00:00:43,879 Speaker 2: to rampant discrimination against black voters in the South, and 11 00:00:44,120 --> 00:00:48,519 Speaker 2: Justice Brett Kavanaugh questioned whether it was still warranted sixty 12 00:00:48,600 --> 00:00:49,280 Speaker 2: years later. 13 00:00:49,680 --> 00:00:54,240 Speaker 3: Race based remedies are permissible for a period of time, 14 00:00:54,560 --> 00:00:59,840 Speaker 3: sometimes for a long period of time decades in some cases, 15 00:01:00,160 --> 00:01:04,960 Speaker 3: but that they should not be indefinite and should have 16 00:01:05,000 --> 00:01:09,360 Speaker 3: an endpoint. And what exactly do you think the endpoint 17 00:01:09,680 --> 00:01:12,640 Speaker 3: should be or how do we know for the intentional 18 00:01:12,840 --> 00:01:15,319 Speaker 3: use of race to create districts. 19 00:01:15,880 --> 00:01:20,039 Speaker 2: But liberal Justice Elena Kagan pointed out that the remedy 20 00:01:20,080 --> 00:01:23,800 Speaker 2: of redrawing districts only happens in a case where a 21 00:01:23,840 --> 00:01:28,480 Speaker 2: court has found a specific proved discrimination by the state. 22 00:01:28,920 --> 00:01:32,559 Speaker 4: And what these Section two suits do is they ask 23 00:01:32,760 --> 00:01:37,600 Speaker 4: about current conditions, and they ask whether those current conditions 24 00:01:38,200 --> 00:01:43,600 Speaker 4: show vote dilution, which is violative of Section two. So 25 00:01:43,640 --> 00:01:48,960 Speaker 4: they say, is there racial segregation, racial residential segregation now? 26 00:01:49,560 --> 00:01:54,640 Speaker 4: Is there racially polarized voting now? And when the state 27 00:01:55,080 --> 00:02:01,520 Speaker 4: fails with respect to those issues, when those conditions obtain now. 28 00:02:02,120 --> 00:02:08,040 Speaker 2: However, other conservative justices like Neil Gorsuch, suggested that any 29 00:02:08,160 --> 00:02:11,680 Speaker 2: use of race as a factor in redistricting, even to 30 00:02:11,800 --> 00:02:17,839 Speaker 2: correct the state's discriminatory dilution of minority voters, is unconstitutional. 31 00:02:18,240 --> 00:02:21,160 Speaker 5: I'm asking is it acceptable under Section two? 32 00:02:21,240 --> 00:02:25,360 Speaker 3: Is you understand it? Given our precedents, for a court 33 00:02:25,440 --> 00:02:29,040 Speaker 3: to intentionally discriminate in a remedial map on the basis of. 34 00:02:29,040 --> 00:02:33,320 Speaker 2: Race, how quickly the court hands down its decision could 35 00:02:33,320 --> 00:02:37,040 Speaker 2: determine whether or not states will have sufficient time to 36 00:02:37,200 --> 00:02:41,959 Speaker 2: redraw maps, if permissible, before the midterms. My guest is 37 00:02:42,000 --> 00:02:46,320 Speaker 2: elections law expert Richard breflt A professor at Columbia Law School. 38 00:02:46,760 --> 00:02:49,280 Speaker 2: Rich Before we get to the facts of the case 39 00:02:49,360 --> 00:02:52,919 Speaker 2: and the oral arguments, I want to ask you about 40 00:02:53,000 --> 00:02:58,360 Speaker 2: the impact of this decision if the Justice is as 41 00:02:58,400 --> 00:03:03,280 Speaker 2: expected limit or eliminate Section two of the Voting Rights Act. 42 00:03:03,840 --> 00:03:05,640 Speaker 1: It's not clear they're going to do away with Section 43 00:03:05,680 --> 00:03:09,360 Speaker 1: two tholthough they will clearly change how they interpret it. 44 00:03:09,560 --> 00:03:12,560 Speaker 1: I think it's tricky because it's not clear how many 45 00:03:12,560 --> 00:03:15,160 Speaker 1: districts it's going to effect. It clearly will affect some districts. 46 00:03:15,560 --> 00:03:19,880 Speaker 1: It clearly will mean that certain lawsuits to improve minority 47 00:03:19,880 --> 00:03:21,440 Speaker 1: representation won't be brought. 48 00:03:21,760 --> 00:03:24,400 Speaker 6: Probably the harder thing to figure out is. 49 00:03:24,360 --> 00:03:28,160 Speaker 1: To what extent certain districts that have already been created 50 00:03:28,560 --> 00:03:32,320 Speaker 1: as minority opportunity districts, even if they weren't a result 51 00:03:32,360 --> 00:03:36,000 Speaker 1: of litigation. But we're done either defensively as a way 52 00:03:36,000 --> 00:03:39,440 Speaker 1: of a forestalling litigation or because the local legislatures thought 53 00:03:39,440 --> 00:03:39,720 Speaker 1: it was the. 54 00:03:39,760 --> 00:03:40,360 Speaker 6: Right thing to do. 55 00:03:40,840 --> 00:03:44,320 Speaker 1: Whether those can now be attacked as reflecting an excessive 56 00:03:44,320 --> 00:03:46,760 Speaker 1: attention to race. We don't know what the Court's going 57 00:03:46,840 --> 00:03:49,480 Speaker 1: to say, and we don't know how far this will 58 00:03:49,520 --> 00:03:55,920 Speaker 1: go in terms of unraveling pre existing districting practices, but certainly, 59 00:03:55,960 --> 00:03:58,560 Speaker 1: whatever they do, it will definitely have an impact on 60 00:03:58,600 --> 00:04:03,080 Speaker 1: minority representation and potentially on partisan representation as well. 61 00:04:03,440 --> 00:04:05,840 Speaker 2: Tell us about what the issue is here. 62 00:04:06,040 --> 00:04:08,240 Speaker 6: It's almost it's very hard to explain what the issues. 63 00:04:08,360 --> 00:04:09,640 Speaker 6: Is a very complicated case. 64 00:04:10,000 --> 00:04:14,400 Speaker 1: I mean, the underlying issue is to what extent can 65 00:04:14,600 --> 00:04:19,280 Speaker 1: or must states take race into account in drawing their districts. 66 00:04:19,520 --> 00:04:23,120 Speaker 1: This case grew out of an earlier case in Louisiana, 67 00:04:23,560 --> 00:04:26,160 Speaker 1: where the plaintiffs argued under Section TOO with the Voting 68 00:04:26,240 --> 00:04:29,159 Speaker 1: Rights Act that a minority, in this case, African American 69 00:04:29,240 --> 00:04:34,080 Speaker 1: or black voter representation was illegally reduced. That the state 70 00:04:34,160 --> 00:04:37,080 Speaker 1: is approximately a third block, but only one out of 71 00:04:37,080 --> 00:04:42,160 Speaker 1: the six congressional districts had a majority minority population, and 72 00:04:42,279 --> 00:04:44,800 Speaker 1: the plaintiffs were able to persuade a lower court that 73 00:04:45,120 --> 00:04:48,719 Speaker 1: it was relatively easy to draw a second majority minority district, 74 00:04:49,080 --> 00:04:51,400 Speaker 1: and that the state's failure to do so under the 75 00:04:51,440 --> 00:04:54,720 Speaker 1: totality of the circumstances, including the nature of racial block 76 00:04:54,800 --> 00:04:57,320 Speaker 1: voting in the state and historical factors in the state, 77 00:04:57,760 --> 00:05:01,400 Speaker 1: constituted a denial of equal representa. The state went ahead 78 00:05:01,400 --> 00:05:03,479 Speaker 1: and did that, but they did it in such a 79 00:05:03,520 --> 00:05:06,520 Speaker 1: way that by taking certain partisan factors into account, they 80 00:05:06,520 --> 00:05:09,360 Speaker 1: created a very strange looking district that kind of goes 81 00:05:09,400 --> 00:05:11,920 Speaker 1: across much of the state. Even though the plaintiffs when 82 00:05:11,920 --> 00:05:16,440 Speaker 1: they brought their case, had proposed a much more compact district. Well, 83 00:05:16,520 --> 00:05:18,960 Speaker 1: now another set of voters in this new district have 84 00:05:19,000 --> 00:05:22,360 Speaker 1: brought alot in saying that this district is drawn predominantly 85 00:05:22,440 --> 00:05:26,000 Speaker 1: for racial reasons and drawing on older Supreme Court president, 86 00:05:26,040 --> 00:05:30,000 Speaker 1: they argue that that's unconstitutional. The plaintiffs in the original 87 00:05:30,080 --> 00:05:33,359 Speaker 1: case are trying to defend the district by saying that 88 00:05:33,440 --> 00:05:37,080 Speaker 1: it's okay to use race, even in the significant way, 89 00:05:37,240 --> 00:05:40,839 Speaker 1: when it's being used as a remedy for prior racial discrimination. 90 00:05:41,480 --> 00:05:44,599 Speaker 1: And that's really the issue here is when is it 91 00:05:44,680 --> 00:05:48,600 Speaker 1: okay to use race in drawing districts? And maybe to 92 00:05:48,640 --> 00:05:52,359 Speaker 1: what extent is it permissible to use race in drawing districts? 93 00:05:52,440 --> 00:05:53,800 Speaker 1: That becomes the big question. 94 00:05:54,880 --> 00:05:58,200 Speaker 2: The Supreme Court originally heard oral arguments in the case 95 00:05:58,440 --> 00:06:03,240 Speaker 2: in March and reach a decision and added sort of 96 00:06:03,240 --> 00:06:06,039 Speaker 2: a new wrinkle for the current oral arguments. 97 00:06:06,760 --> 00:06:10,239 Speaker 1: The Court asked for more briefing on the constitutional question 98 00:06:10,360 --> 00:06:14,560 Speaker 1: of the constitutionality of using race in this context. Again 99 00:06:14,600 --> 00:06:17,400 Speaker 1: to back up, the Court has said in the past 100 00:06:17,480 --> 00:06:20,119 Speaker 1: nine leading case called Shaw, which was decided in nineteen 101 00:06:20,160 --> 00:06:24,120 Speaker 1: ninety three, that the predominant use of race when race 102 00:06:24,160 --> 00:06:27,320 Speaker 1: is the predominant factor on line drawing, that is subject 103 00:06:27,360 --> 00:06:30,440 Speaker 1: to strict judicial scrutiny and can only be satisfied as 104 00:06:30,440 --> 00:06:35,000 Speaker 1: there's a compelling state interest. And they assume, without actually deciding, 105 00:06:35,560 --> 00:06:38,039 Speaker 1: that compliance with Section two of the Voting Right sec 106 00:06:38,440 --> 00:06:41,400 Speaker 1: is a compelling state interest. In some sense, this case 107 00:06:41,760 --> 00:06:43,880 Speaker 1: raises the question of whether a compliance with the Voting 108 00:06:43,920 --> 00:06:47,479 Speaker 1: Rights Act is a compelling state interest or again, it 109 00:06:47,520 --> 00:06:49,600 Speaker 1: could be turned out to what chem the Voting Rights 110 00:06:49,600 --> 00:06:52,680 Speaker 1: Act permissively require? How is the court go interp of 111 00:06:52,760 --> 00:06:55,240 Speaker 1: the Voting Rights Act. There are a lot of questions 112 00:06:55,680 --> 00:06:58,160 Speaker 1: all sort of tied up in a not in this case, 113 00:06:58,200 --> 00:07:00,760 Speaker 1: and it could come out and in many different ways. 114 00:07:00,839 --> 00:07:03,120 Speaker 1: I mean, the one thing that seems pretty clear is 115 00:07:03,160 --> 00:07:06,159 Speaker 1: that the original plaintiffs, the black voters who suit for change, 116 00:07:06,200 --> 00:07:08,760 Speaker 1: are likely to lose. They did win in the lower 117 00:07:08,760 --> 00:07:11,760 Speaker 1: court and the map was redrawn in their favor. But 118 00:07:11,880 --> 00:07:15,120 Speaker 1: the challengers to that map, I think are likely to win. 119 00:07:15,840 --> 00:07:18,640 Speaker 1: But on what theory it could be any from a 120 00:07:18,680 --> 00:07:22,080 Speaker 1: relatively narrow theory to an extremely broad theory. And to 121 00:07:22,120 --> 00:07:25,040 Speaker 1: some extent you heard that in the oral argument, where 122 00:07:25,520 --> 00:07:29,440 Speaker 1: three different lawyers were making the case against the current district, 123 00:07:29,840 --> 00:07:33,960 Speaker 1: the original plaintiffs challenging the current district, the state of Louisiana, 124 00:07:34,040 --> 00:07:37,120 Speaker 1: which originally had defended the districts and then changed its 125 00:07:37,160 --> 00:07:40,440 Speaker 1: position of Louisiana drew these districts but are now saying 126 00:07:40,640 --> 00:07:43,520 Speaker 1: that they believe they're unconstitutional, and the US government, the 127 00:07:43,560 --> 00:07:47,400 Speaker 1: Trump Justice Department, and they each presented slightly different theories 128 00:07:47,760 --> 00:07:51,559 Speaker 1: as to why the districts are invalid and what would 129 00:07:51,560 --> 00:07:54,320 Speaker 1: be the proper use of race in line drawing. 130 00:07:55,440 --> 00:07:58,600 Speaker 2: Yeah, that's three against one. Seemed a little bit unbalanced. 131 00:07:58,880 --> 00:08:02,320 Speaker 2: Now the conservative justices, would you say, they're sort of 132 00:08:02,360 --> 00:08:06,200 Speaker 2: on a spectrum from a position of there should be 133 00:08:06,280 --> 00:08:12,280 Speaker 2: no consideration of race at all in redistricting to something less. 134 00:08:13,440 --> 00:08:15,200 Speaker 1: I think I would phrase in terms of how much 135 00:08:15,320 --> 00:08:17,360 Speaker 1: how big a change do they want to make in 136 00:08:17,400 --> 00:08:19,680 Speaker 1: the law, and when could race be used? And I 137 00:08:19,680 --> 00:08:22,040 Speaker 1: do think in the sense that some didn't think race 138 00:08:22,080 --> 00:08:24,640 Speaker 1: could be used at all. Others I think were open 139 00:08:24,680 --> 00:08:27,280 Speaker 1: to the use of race, but only in a relatively 140 00:08:27,360 --> 00:08:30,000 Speaker 1: narrow set of circumstances. And I think a lot of 141 00:08:30,040 --> 00:08:32,360 Speaker 1: it had to do with how do they fit this 142 00:08:32,480 --> 00:08:35,840 Speaker 1: decision with an earlier Supreme Court decision one that is 143 00:08:35,880 --> 00:08:39,559 Speaker 1: now almost forty years old, in which they interpreted the 144 00:08:39,640 --> 00:08:41,960 Speaker 1: Voting Rights Act. Section two of the Voting Rights Act 145 00:08:42,280 --> 00:08:45,400 Speaker 1: laid down a case called Jingles, which set the pattern 146 00:08:45,480 --> 00:08:48,240 Speaker 1: for Voting Rights Act enforcement for the last forty years, 147 00:08:48,480 --> 00:08:51,520 Speaker 1: including just two years ago with the Supreme Court in 148 00:08:51,559 --> 00:08:55,080 Speaker 1: a case coming out of Alabama which on fairly similar 149 00:08:55,120 --> 00:08:58,559 Speaker 1: facts to this one, sustained the use of rais and 150 00:08:58,640 --> 00:09:01,880 Speaker 1: drawing a remedial district. And so I think that what 151 00:09:01,960 --> 00:09:07,640 Speaker 1: you saw what's called them the more moderate conservatives, Justice Barrett, 152 00:09:07,640 --> 00:09:11,480 Speaker 1: maybe Justice Kavanaugh, maybe the Chief Justice, looking for ways 153 00:09:11,559 --> 00:09:15,320 Speaker 1: of squaring this case with that Alabama case known as Milligan, 154 00:09:15,800 --> 00:09:19,600 Speaker 1: or explaining why this case could come out differently, and 155 00:09:19,679 --> 00:09:23,640 Speaker 1: maybe explaining how this case fits with the older president Jingles. 156 00:09:24,080 --> 00:09:26,640 Speaker 1: And are they going to overturn Jingles? Are they going 157 00:09:26,720 --> 00:09:30,040 Speaker 1: to say this as a clarification of Jingles, which would 158 00:09:30,040 --> 00:09:33,360 Speaker 1: be a way of changing it without flat out changing it. 159 00:09:33,840 --> 00:09:37,160 Speaker 1: So I do think my guess is less likely that 160 00:09:37,200 --> 00:09:41,000 Speaker 1: you're going to see a majority striking down the Voting 161 00:09:41,040 --> 00:09:43,240 Speaker 1: Right Staff, but you're going to definitely see a new 162 00:09:43,360 --> 00:09:48,000 Speaker 1: interpretation of how it applies and what it requires, at 163 00:09:48,080 --> 00:09:50,439 Speaker 1: least based on the oral argument, and it's always tricky 164 00:09:50,720 --> 00:09:52,720 Speaker 1: to rely on the oral argument. I mean, we're not 165 00:09:52,720 --> 00:09:54,560 Speaker 1: going to see a decision for quite some time, but 166 00:09:55,000 --> 00:09:58,120 Speaker 1: you did see at least some of the justices trying 167 00:09:58,120 --> 00:10:01,079 Speaker 1: to figure out how to square this with the decision 168 00:10:01,120 --> 00:10:04,240 Speaker 1: that's just two years old and with the precedent that 169 00:10:04,440 --> 00:10:05,319 Speaker 1: is forty years old. 170 00:10:05,679 --> 00:10:09,839 Speaker 2: Chief Justice Roberts, who voted with Justice Kavanaugh and the 171 00:10:09,920 --> 00:10:13,560 Speaker 2: liberals in that Alabama case, asked how the Court could 172 00:10:13,600 --> 00:10:17,120 Speaker 2: differentiate the case. He said that case took the existing 173 00:10:17,280 --> 00:10:18,600 Speaker 2: precedent as a given. 174 00:10:19,120 --> 00:10:21,800 Speaker 1: I think that provides a basis for saying why they're 175 00:10:21,800 --> 00:10:25,120 Speaker 1: not bound by the case. That the validity of Jingles 176 00:10:25,160 --> 00:10:29,080 Speaker 1: and its interpretation were not really being challenged in the 177 00:10:29,120 --> 00:10:32,120 Speaker 1: Alabama case. Then, as Think pointed out, the state in 178 00:10:32,160 --> 00:10:36,040 Speaker 1: the Alabama case had certain very specific arguments and those 179 00:10:36,080 --> 00:10:39,640 Speaker 1: specific arguments were rejected. The Court is now hinting that 180 00:10:40,120 --> 00:10:42,360 Speaker 1: all they ruled on in the Alabama case were the 181 00:10:42,400 --> 00:10:46,600 Speaker 1: specific objections that Alabama raised so at the lower court's 182 00:10:46,679 --> 00:10:49,800 Speaker 1: order in that case, but that they had not definitively 183 00:10:50,400 --> 00:10:53,800 Speaker 1: ruled on either the meaning of the Jingles decision or 184 00:10:53,840 --> 00:10:54,760 Speaker 1: the meaning of Section two. 185 00:10:54,840 --> 00:10:55,840 Speaker 6: The voting Rights aide. 186 00:10:56,120 --> 00:10:58,520 Speaker 2: Coming up next on the Bloomberg Lawn Show, I'll continue 187 00:10:58,559 --> 00:11:02,520 Speaker 2: this conversation with profe Sir Richard Brafault of Columbia Law School. 188 00:11:03,000 --> 00:11:06,600 Speaker 2: The timing of the court's decision is key. An early 189 00:11:06,720 --> 00:11:11,000 Speaker 2: decision could effect the midterms and boost the Republicans' chance 190 00:11:11,040 --> 00:11:15,640 Speaker 2: for electoral success. And later in the show, Reagan appointed 191 00:11:15,720 --> 00:11:20,520 Speaker 2: judges are not afraid to criticize the president and his administration. 192 00:11:21,080 --> 00:11:23,760 Speaker 2: I'm June Grosso and you're listening to Bloomberg. 193 00:11:27,160 --> 00:11:30,000 Speaker 7: I think the results would be pretty catastrophic. If we 194 00:11:30,120 --> 00:11:35,400 Speaker 7: take Louisiana as one example, every congressional member who is 195 00:11:35,440 --> 00:11:39,840 Speaker 7: black was elected from a VRA opportunity district. We only 196 00:11:39,880 --> 00:11:43,400 Speaker 7: have the diversity that we see across the South, for example, 197 00:11:43,480 --> 00:11:48,360 Speaker 7: because of litigation that forced the creation of opportunity districts 198 00:11:48,440 --> 00:11:53,320 Speaker 7: under the Voting Rights Act. Every justice in Louisiana has 199 00:11:53,480 --> 00:11:57,960 Speaker 7: been elected through a VRA opportunity district and nearly all 200 00:11:58,160 --> 00:12:02,920 Speaker 7: legislative representatives been elected on those same districts. So Louisiana 201 00:12:03,040 --> 00:12:06,320 Speaker 7: alone is an example of how important it is to 202 00:12:06,440 --> 00:12:10,319 Speaker 7: have Section two continue to be enforced to create these opportunities. 203 00:12:10,400 --> 00:12:14,079 Speaker 2: That was civil rights attorney Janni Nelson describing what the 204 00:12:14,120 --> 00:12:17,839 Speaker 2: results of ending section two of the Voting Rights Act 205 00:12:17,920 --> 00:12:21,440 Speaker 2: would look like. Nelson was defending the creation of a 206 00:12:21,520 --> 00:12:26,960 Speaker 2: second black majority congressional district in Louisiana. During the oral arguments, 207 00:12:27,160 --> 00:12:31,160 Speaker 2: the Supreme Court's conservatives suggested they'll limit the use of 208 00:12:31,280 --> 00:12:35,719 Speaker 2: race in drawing legislative maps, a move that could undermine 209 00:12:35,840 --> 00:12:39,080 Speaker 2: the last major pillar of the Voting Rights Act. The 210 00:12:39,120 --> 00:12:42,480 Speaker 2: Court already declared sections four and five of the Voting 211 00:12:42,559 --> 00:12:47,640 Speaker 2: Rights Act unconstitutional in the Shelby County Versus Holder case 212 00:12:47,840 --> 00:12:51,280 Speaker 2: in twenty thirteen. I've been talking to elections law expert 213 00:12:51,360 --> 00:12:55,520 Speaker 2: Richard Rfault, a professor Columbia Law School. So, Rich, after 214 00:12:55,679 --> 00:12:59,000 Speaker 2: hearing the oral arguments, do you think that the best 215 00:12:59,120 --> 00:13:03,320 Speaker 2: possible out come here for voting rights advocates would be 216 00:13:03,600 --> 00:13:06,400 Speaker 2: that the court sends the case back to the lower 217 00:13:06,440 --> 00:13:09,120 Speaker 2: court to draw a new map. Of course, the worst 218 00:13:09,160 --> 00:13:13,560 Speaker 2: case scenario is that the court just throws out Section two. 219 00:13:14,920 --> 00:13:18,920 Speaker 1: It's complicated because this case is not an appeal of 220 00:13:18,960 --> 00:13:22,480 Speaker 1: the earlier case that's struck down the old Louisiana map 221 00:13:22,800 --> 00:13:26,400 Speaker 1: and said you need a second district. This case is 222 00:13:26,440 --> 00:13:30,000 Speaker 1: an appeal of the new map which has the second 223 00:13:30,000 --> 00:13:33,559 Speaker 1: district which clearly reflects attention to race. 224 00:13:34,559 --> 00:13:36,000 Speaker 6: So it's a little. 225 00:13:35,840 --> 00:13:38,200 Speaker 1: Unclear, but they might very well conclude that this is 226 00:13:38,240 --> 00:13:42,480 Speaker 1: an illegal map or an unjustified map and strike it 227 00:13:42,559 --> 00:13:44,800 Speaker 1: down and then yes, you know, have to send it 228 00:13:44,840 --> 00:13:47,760 Speaker 1: back to the lower court, and then lower corpusm would 229 00:13:47,760 --> 00:13:50,560 Speaker 1: then give it to Louisiana legislature, which would then probably 230 00:13:50,559 --> 00:13:54,000 Speaker 1: go back to the original map because in the earlier case, 231 00:13:54,040 --> 00:13:56,400 Speaker 1: in case we'll call it Robinson, as several of the 232 00:13:56,559 --> 00:13:59,280 Speaker 1: justices and pointed out, there was no final judgment in 233 00:13:59,280 --> 00:14:02,839 Speaker 1: that case, decision on a preliminary injunction, and the lower 234 00:14:02,880 --> 00:14:06,920 Speaker 1: court didn't impose a map. The state basically decided that 235 00:14:07,000 --> 00:14:09,400 Speaker 1: the legislature wanted to write its own map and not 236 00:14:09,480 --> 00:14:11,839 Speaker 1: take the risk of a court imposed map, so they 237 00:14:11,880 --> 00:14:14,839 Speaker 1: went and drew up a map before there was actually 238 00:14:14,920 --> 00:14:18,280 Speaker 1: a final judgment by the district court in the Robinson case, 239 00:14:18,280 --> 00:14:21,200 Speaker 1: which I say, that's a complicated case, and you may 240 00:14:21,320 --> 00:14:24,520 Speaker 1: very well see that the court giving new instructions as 241 00:14:24,520 --> 00:14:26,600 Speaker 1: to what the Section two of the Voting Rights Act 242 00:14:26,720 --> 00:14:31,280 Speaker 1: require and what does vehicle projection Clause prohibit in terms 243 00:14:31,320 --> 00:14:33,840 Speaker 1: of the use of race in drawing mine don't want 244 00:14:33,880 --> 00:14:37,400 Speaker 1: to read because there are a number of different factors 245 00:14:37,480 --> 00:14:40,680 Speaker 1: running around. In this case, there was an argument about 246 00:14:40,920 --> 00:14:43,560 Speaker 1: one of the key elements in the voting rights litigation 247 00:14:43,680 --> 00:14:46,640 Speaker 1: until now has been proving the presence of ratio. It's 248 00:14:46,680 --> 00:14:49,560 Speaker 1: called racial block voting. That is, blacks and whites voting 249 00:14:49,640 --> 00:14:52,440 Speaker 1: very differently from each other. The Justice Department of the 250 00:14:52,440 --> 00:14:55,440 Speaker 1: Trump Justice Department basically has said that these days it's 251 00:14:55,440 --> 00:14:58,280 Speaker 1: impossible to separate race from party, that this is really 252 00:14:58,360 --> 00:15:00,920 Speaker 1: partisan jerrymandering, and the Supreme Court has given the green 253 00:15:00,960 --> 00:15:03,560 Speaker 1: light to that, so that they would want to raise 254 00:15:03,600 --> 00:15:07,680 Speaker 1: the burden very heavily on plaintiffs to separate race from party, 255 00:15:08,080 --> 00:15:09,840 Speaker 1: and if they can't, then you don't have a win, 256 00:15:09,960 --> 00:15:12,360 Speaker 1: then you don't have a voting rights That violation that 257 00:15:12,480 --> 00:15:15,160 Speaker 1: I think is an argument that might draw some appeal 258 00:15:15,520 --> 00:15:18,600 Speaker 1: in the Supreme Court. So the Trump administration basically said, yes, 259 00:15:19,240 --> 00:15:21,600 Speaker 1: you might be able to use race as a remedy, 260 00:15:21,960 --> 00:15:24,080 Speaker 1: but only if you could really prove that it was 261 00:15:24,400 --> 00:15:28,760 Speaker 1: race that was driving the voting outcomes and not party 262 00:15:29,040 --> 00:15:31,200 Speaker 1: and putting a very heavy burden on the plaintiffs. How 263 00:15:31,280 --> 00:15:34,000 Speaker 1: much heavier burden on the plaintiffs to show that than 264 00:15:34,000 --> 00:15:35,360 Speaker 1: had been the case until. 265 00:15:35,080 --> 00:15:38,680 Speaker 2: Now, and what were the best arguments that the liberal 266 00:15:38,920 --> 00:15:43,840 Speaker 2: justices made, Not that they'll have any persuasive effect on 267 00:15:43,960 --> 00:15:45,760 Speaker 2: their conservative colleagues. 268 00:15:46,200 --> 00:15:49,400 Speaker 1: The liberal justices, I think, primarily basically relying heavily on 269 00:15:49,440 --> 00:15:53,320 Speaker 1: starry decisives. That is, we've decided this before, including two 270 00:15:53,360 --> 00:15:57,120 Speaker 1: years ago, that this case is on all fours with 271 00:15:57,200 --> 00:15:58,160 Speaker 1: the Alabama case. 272 00:15:58,640 --> 00:16:00,280 Speaker 6: So that's one. Two. 273 00:16:00,480 --> 00:16:03,600 Speaker 1: Another version of story decisis is there is a doctrine 274 00:16:03,600 --> 00:16:08,840 Speaker 1: that says that court opinions interpreting statutes get super strong 275 00:16:08,920 --> 00:16:13,360 Speaker 1: story decisives have super strong presidential effect because whereas court 276 00:16:13,440 --> 00:16:17,640 Speaker 1: decisions interpreting the Constitution really can't be overturned except through 277 00:16:17,640 --> 00:16:22,320 Speaker 1: an extraordinary process of constitutional amendment, court decisions interpreting a statute, 278 00:16:22,480 --> 00:16:26,320 Speaker 1: Congress can always overturn them. And Congress has not tampered 279 00:16:26,360 --> 00:16:29,080 Speaker 1: with the Bonia Rights Accents nineteen eighty two. So there's 280 00:16:29,160 --> 00:16:32,880 Speaker 1: kind of two starry decisive arguments here, one based on 281 00:16:32,960 --> 00:16:37,120 Speaker 1: the Milligan case, the other based on Jingles and saying 282 00:16:37,160 --> 00:16:40,000 Speaker 1: Congress has has not bothered with that case for forty years. 283 00:16:40,160 --> 00:16:42,760 Speaker 1: The other, I think was a third argument, and it 284 00:16:42,800 --> 00:16:45,240 Speaker 1: didn't come up as much in this argument as people 285 00:16:45,280 --> 00:16:48,360 Speaker 1: might have thought. If you go back to the Alabama case, 286 00:16:49,200 --> 00:16:52,080 Speaker 1: you mentioned that Kavanaugh was in the majority, he wrote 287 00:16:52,080 --> 00:16:54,080 Speaker 1: a concurrence. I'm not sure if he was in a 288 00:16:54,080 --> 00:16:57,360 Speaker 1: majority or whether he just concurred. He echoed some of 289 00:16:57,400 --> 00:16:59,960 Speaker 1: the language Justice of Connor had used many years earlier 290 00:17:00,400 --> 00:17:02,920 Speaker 1: and dealing with affirmative action and saying there's got to 291 00:17:02,960 --> 00:17:05,600 Speaker 1: be some time limit for this, that it's not clear 292 00:17:05,720 --> 00:17:09,119 Speaker 1: how much longer you can keep taking effects into account 293 00:17:09,640 --> 00:17:13,719 Speaker 1: in remedies. And much of the argument of the lawyer 294 00:17:13,760 --> 00:17:16,919 Speaker 1: for the NAACP and the liberal justices is, well, actually 295 00:17:16,920 --> 00:17:19,200 Speaker 1: there is a built in time limit in Section two. 296 00:17:19,600 --> 00:17:24,240 Speaker 1: Plaintiffs have to show that there is current racial block voting, 297 00:17:24,440 --> 00:17:27,800 Speaker 1: that there is a current disparate impact, and so therefore 298 00:17:27,840 --> 00:17:30,640 Speaker 1: it's not something that goes on forever. Plaintiffs can't make 299 00:17:30,680 --> 00:17:33,679 Speaker 1: that showing they lose. And they made the point that 300 00:17:33,800 --> 00:17:36,879 Speaker 1: in much recent litigation, plaintiffs have lost a lot of 301 00:17:36,920 --> 00:17:39,680 Speaker 1: voting rights cases, that they don't win a majority of 302 00:17:39,760 --> 00:17:42,479 Speaker 1: their cases, and so the concern that this is going 303 00:17:42,520 --> 00:17:45,880 Speaker 1: to lead to a kind of endless, kind of racialization 304 00:17:46,000 --> 00:17:46,800 Speaker 1: of line drawing. 305 00:17:47,240 --> 00:17:48,800 Speaker 6: They're saying is just very overdrawn. 306 00:17:48,880 --> 00:17:52,879 Speaker 1: That was very much a response to Kavanaugh's position in 307 00:17:52,920 --> 00:17:53,800 Speaker 1: the Alabama case. 308 00:17:54,320 --> 00:17:56,040 Speaker 6: That didn't come up as much. 309 00:17:55,840 --> 00:17:58,480 Speaker 1: In the argument this time as I think people might 310 00:17:58,520 --> 00:18:00,960 Speaker 1: have expected. But that was one of the arguments that 311 00:18:01,080 --> 00:18:06,480 Speaker 1: both the NAAC rebutted and the liberal justices also took 312 00:18:06,520 --> 00:18:07,160 Speaker 1: into account. 313 00:18:07,600 --> 00:18:10,720 Speaker 2: There are a lot of legal experts saying the death 314 00:18:10,760 --> 00:18:13,280 Speaker 2: of the Voting Rights Act, and you know it's a 315 00:18:13,359 --> 00:18:15,480 Speaker 2: sure thing that the conservators are gonna get rid of it. 316 00:18:15,560 --> 00:18:17,840 Speaker 2: You don't think that it will go that far. 317 00:18:18,560 --> 00:18:22,080 Speaker 1: No, I think they're going to make it much less effective. 318 00:18:22,600 --> 00:18:26,480 Speaker 1: But I again I don't count myself a great prognosticator 319 00:18:26,560 --> 00:18:30,320 Speaker 1: on this. I don't think there's a majority. Based on 320 00:18:30,560 --> 00:18:34,159 Speaker 1: the questions in the oral argument, it seemed to me 321 00:18:34,320 --> 00:18:39,880 Speaker 1: that it's more likely that they will reinterpret the Jingle's 322 00:18:39,960 --> 00:18:42,440 Speaker 1: case and or the section of the Voting Rights Act 323 00:18:42,840 --> 00:18:47,159 Speaker 1: in a way that places a much higher burden on 324 00:18:47,440 --> 00:18:54,199 Speaker 1: plaintiffs to prove something that would entitle them to redrawing 325 00:18:54,240 --> 00:18:58,960 Speaker 1: lines in order to enhance minority representation. I think that 326 00:18:59,080 --> 00:19:02,639 Speaker 1: may have the effect of making sure that it'd be 327 00:19:02,680 --> 00:19:05,520 Speaker 1: even fewer Voting Rights Act victories than there are now. 328 00:19:05,600 --> 00:19:09,600 Speaker 1: But based on the kinds of questioning, it seemed to 329 00:19:09,640 --> 00:19:13,399 Speaker 1: me that they're more likely to make the Voting Rights 330 00:19:13,400 --> 00:19:17,040 Speaker 1: Act much less effective than to throw it out altogether. 331 00:19:17,840 --> 00:19:20,480 Speaker 2: What do you think that timing looks like here? Do 332 00:19:20,520 --> 00:19:23,080 Speaker 2: you think the court might try to rush this through 333 00:19:23,280 --> 00:19:26,639 Speaker 2: to get around the procel principle, which is that courts 334 00:19:26,640 --> 00:19:30,080 Speaker 2: shouldn't change election rules right before an election. 335 00:19:30,600 --> 00:19:32,879 Speaker 1: I mean, that's a good question, and I don't know. 336 00:19:33,359 --> 00:19:35,399 Speaker 1: I mean, you're right, I mean, one concern is that 337 00:19:35,400 --> 00:19:38,240 Speaker 1: they come down soon. But maybe a lot of lawsuits 338 00:19:38,359 --> 00:19:42,399 Speaker 1: challenging current plans that were done either as a result 339 00:19:42,440 --> 00:19:46,199 Speaker 1: of litigation or as a way of forestalling litigation, that 340 00:19:46,359 --> 00:19:49,639 Speaker 1: create either majority minority districts or what are cold opportunity 341 00:19:49,680 --> 00:19:53,000 Speaker 1: districts districts without a block or Latino majority, but are 342 00:19:53,000 --> 00:19:55,320 Speaker 1: designed in a way to make it easier for minority 343 00:19:55,640 --> 00:20:00,080 Speaker 1: voters to elect for the candidates of choice. So if 344 00:20:00,080 --> 00:20:04,240 Speaker 1: there's a decision between now and the spring, it's quite 345 00:20:04,320 --> 00:20:08,800 Speaker 1: possible to see yet more re redistricting. If it's much 346 00:20:08,960 --> 00:20:11,399 Speaker 1: later than that, I think it would be very hard 347 00:20:11,480 --> 00:20:14,639 Speaker 1: for it to show up in the twenty six election, 348 00:20:14,680 --> 00:20:16,880 Speaker 1: but it would surely show up in the twenty eight elections, 349 00:20:16,920 --> 00:20:20,080 Speaker 1: so I don't know. I mean, it's now been argued twice. 350 00:20:20,240 --> 00:20:22,600 Speaker 1: They set it up on the calendar early in the term. 351 00:20:22,640 --> 00:20:25,800 Speaker 1: It's conceivable that they'll be an early decision, but it's 352 00:20:25,840 --> 00:20:28,760 Speaker 1: really very hard to tell, and maybe that they need 353 00:20:28,840 --> 00:20:33,040 Speaker 1: some time to figure out a theory that commands supporter 354 00:20:33,200 --> 00:20:36,800 Speaker 1: could very well be that there's multiple opinions. This is 355 00:20:36,840 --> 00:20:37,720 Speaker 1: a very hard case. 356 00:20:38,840 --> 00:20:42,359 Speaker 2: Where do you think the Chief Justice stands? Because he 357 00:20:42,400 --> 00:20:46,760 Speaker 2: did write the majority opinion in the Shelby County case, 358 00:20:46,880 --> 00:20:49,960 Speaker 2: which got rid of sections four and five of the 359 00:20:50,040 --> 00:20:50,960 Speaker 2: Voting Rights Act. 360 00:20:51,560 --> 00:20:57,480 Speaker 1: A classic roberts move would be to effectively change everything 361 00:20:57,760 --> 00:21:00,720 Speaker 1: without literally overturning it. You might see samas Alito and 362 00:21:00,760 --> 00:21:05,760 Speaker 1: Gorsuch wanting to do more, possibly Kavanaugh, but my sense 363 00:21:05,800 --> 00:21:12,600 Speaker 1: of robertson Barrett anyway is they want to change as little, 364 00:21:13,480 --> 00:21:16,920 Speaker 1: formally as little as possible while making a big enough 365 00:21:17,000 --> 00:21:20,119 Speaker 1: change to get rid of these kind of cases. And 366 00:21:20,240 --> 00:21:23,959 Speaker 1: I think the Department of Justice gave them the argument 367 00:21:24,000 --> 00:21:25,679 Speaker 1: that might allow them to do it. They seem very 368 00:21:25,760 --> 00:21:28,720 Speaker 1: keen on that. Kavanaugh seemed particularly keen on that he 369 00:21:28,800 --> 00:21:31,880 Speaker 1: kept citing to the the Department of Justice brief which 370 00:21:31,920 --> 00:21:35,879 Speaker 1: really talked about the need to separate out race from party, 371 00:21:36,160 --> 00:21:38,879 Speaker 1: to make a very high barrier for doing that, and 372 00:21:38,920 --> 00:21:41,320 Speaker 1: to emphasize that partisan jerry mannering was just fine. 373 00:21:42,000 --> 00:21:45,040 Speaker 2: Are there any other voting rights cases coming up to 374 00:21:45,119 --> 00:21:47,879 Speaker 2: the court or percolating in the lower courts? 375 00:21:48,800 --> 00:21:51,880 Speaker 1: There are some other issues percolating around in the lower courts. 376 00:21:52,400 --> 00:21:54,600 Speaker 1: Maybe the most important one is whether there's a private 377 00:21:54,680 --> 00:21:57,119 Speaker 1: right of action under Section two with a moony right 378 00:21:57,200 --> 00:21:59,199 Speaker 1: sack with. Most courts have assumed that there is but 379 00:21:59,320 --> 00:22:01,959 Speaker 1: one circuit as hell, there is not, So that issue 380 00:22:02,000 --> 00:22:03,880 Speaker 1: is perking out there, but I don't think it's before 381 00:22:03,880 --> 00:22:04,880 Speaker 1: the Servin Court this year. 382 00:22:05,040 --> 00:22:07,479 Speaker 2: They do seem to have enough before them this term. 383 00:22:07,720 --> 00:22:11,440 Speaker 2: Thanks so much, rich that's Professor Richard Brifald of Columbia 384 00:22:11,520 --> 00:22:12,119 Speaker 2: Law School. 385 00:22:14,280 --> 00:22:17,800 Speaker 5: It has become ever more apparent that to our president 386 00:22:18,600 --> 00:22:22,120 Speaker 5: the rule of law is but an impediment to his 387 00:22:22,320 --> 00:22:23,800 Speaker 5: policy goals. 388 00:22:24,240 --> 00:22:28,960 Speaker 2: In February, Seattle federal Judge John Kuhnauer ruled against President 389 00:22:29,040 --> 00:22:33,199 Speaker 2: Trump's attempt to end birthright citizenship. In doing so, he 390 00:22:33,440 --> 00:22:36,879 Speaker 2: was blunt in his criticism of the President and in 391 00:22:36,960 --> 00:22:40,840 Speaker 2: his own determination to protect the rule of law. 392 00:22:41,359 --> 00:22:44,840 Speaker 5: There are moments in the world's history when people look 393 00:22:44,880 --> 00:22:48,360 Speaker 5: back and ask where were the lawyers? Where were the judges? 394 00:22:49,400 --> 00:22:52,680 Speaker 5: In these moments, the rule of law becomes especially vulnerable. 395 00:22:53,440 --> 00:22:56,119 Speaker 5: I refuse to let that becon go dark today. 396 00:22:56,760 --> 00:23:00,359 Speaker 2: Kunauer is just one of the judges appointed by President 397 00:23:00,480 --> 00:23:04,920 Speaker 2: Ronald Reagan who've been vocal critics of the Trump administration's 398 00:23:05,040 --> 00:23:08,960 Speaker 2: efforts to circumvent court orders and challenge the law in 399 00:23:09,119 --> 00:23:13,919 Speaker 2: unprecedented ways. Most federal judges are more guarded, but the 400 00:23:13,960 --> 00:23:18,760 Speaker 2: Reagan appointees, all in their eighties with decades of experience 401 00:23:18,840 --> 00:23:23,119 Speaker 2: on the bench, are institutionalists who have no trouble being 402 00:23:23,240 --> 00:23:26,480 Speaker 2: blunt about a party trying to subvert a court order 403 00:23:26,760 --> 00:23:29,280 Speaker 2: or the rule of law. Joining me is Bloomberg Law 404 00:23:29,320 --> 00:23:35,680 Speaker 2: reporter Jacqueline Thompson Jacqueline in general, how have Reagan appointees 405 00:23:36,480 --> 00:23:38,880 Speaker 2: viewed Trump and this administration? 406 00:23:39,440 --> 00:23:43,280 Speaker 8: Again speaking generally, because I'm sure not every Reagan appointee 407 00:23:43,320 --> 00:23:46,560 Speaker 8: feels this way, but some of them really have sort 408 00:23:46,600 --> 00:23:49,240 Speaker 8: of blanched at the way that the Trump administration has 409 00:23:49,240 --> 00:23:52,239 Speaker 8: been approaching the law and then also been approaching the 410 00:23:52,240 --> 00:23:55,680 Speaker 8: courts in general. You know, the arguments that they make 411 00:23:55,760 --> 00:23:59,000 Speaker 8: in court We've had judges sort of bristle at how 412 00:23:59,000 --> 00:24:02,879 Speaker 8: they've approached Firth thread right citizenship. We've had judges detail 413 00:24:03,400 --> 00:24:05,800 Speaker 8: times where they feel like the administration isn't complying with 414 00:24:05,880 --> 00:24:08,280 Speaker 8: their court orders, or at least not doing so in 415 00:24:08,320 --> 00:24:11,800 Speaker 8: a really fulsome way that they feel, you know, recognizes 416 00:24:11,840 --> 00:24:14,239 Speaker 8: the power of the courts. And so it's just been 417 00:24:14,280 --> 00:24:17,360 Speaker 8: interesting to watch these judges who are in Seattle, they're 418 00:24:17,359 --> 00:24:20,600 Speaker 8: in Boston, we've one in d C. There's also one 419 00:24:20,600 --> 00:24:23,639 Speaker 8: on the Fourth Circuit, which covers Virginia, and you know, 420 00:24:23,680 --> 00:24:26,719 Speaker 8: they've been pretty vocal in talking about how they feel 421 00:24:27,119 --> 00:24:28,200 Speaker 8: about the administration. 422 00:24:29,040 --> 00:24:33,000 Speaker 2: Yes, particularly Judge William Young in that one hundred and 423 00:24:33,040 --> 00:24:37,560 Speaker 2: sixty one page opinion, which was stunning in so many ways. 424 00:24:38,400 --> 00:24:45,800 Speaker 2: Judge Young wrote, the Constitution, our civil laws, regulations, moires, customs, practices, courtesies, 425 00:24:46,000 --> 00:24:49,280 Speaker 2: all of it. The President simply ignores it all when 426 00:24:49,280 --> 00:24:51,200 Speaker 2: he takes it into his head to act. 427 00:24:51,920 --> 00:24:56,320 Speaker 8: Yes, definitely, No. He he really went through all the 428 00:24:56,359 --> 00:24:59,520 Speaker 8: different ways that he feels about the president within that opinion, 429 00:25:00,000 --> 00:25:02,480 Speaker 8: and you know, it was really just such a striking opinion, 430 00:25:02,640 --> 00:25:04,679 Speaker 8: not just because of what he said about Trump, but 431 00:25:04,720 --> 00:25:07,040 Speaker 8: the way that he wrote it, and it really felt 432 00:25:07,040 --> 00:25:09,000 Speaker 8: like he was trying to speak to the public there 433 00:25:09,040 --> 00:25:11,399 Speaker 8: and almost give them a sort of civics lesson, saying, 434 00:25:11,760 --> 00:25:13,560 Speaker 8: you know, this is the way that the courts function, 435 00:25:13,720 --> 00:25:16,080 Speaker 8: and this is the way they have historically functioned, and 436 00:25:16,520 --> 00:25:20,240 Speaker 8: what I'm facing today in my courtroom is not proper 437 00:25:20,320 --> 00:25:23,680 Speaker 8: actions by the administration. And I haven't decided what I'm 438 00:25:23,720 --> 00:25:26,800 Speaker 8: going to do yet, but whatever I do do here 439 00:25:27,200 --> 00:25:28,359 Speaker 8: will be fully done. 440 00:25:28,359 --> 00:25:31,720 Speaker 2: With all of that in mind, President Reagan seems to 441 00:25:31,760 --> 00:25:34,960 Speaker 2: hold a special place in the hearts of party members. 442 00:25:35,400 --> 00:25:37,400 Speaker 2: Trump even has a portrait of him, as you mentioned 443 00:25:37,400 --> 00:25:40,400 Speaker 2: in your article, hanging in the Oval office. What kind 444 00:25:40,440 --> 00:25:43,320 Speaker 2: of people did Reagan appoint to the bench? 445 00:25:44,000 --> 00:25:47,240 Speaker 8: You know, Reagan also went with young conservatives the way 446 00:25:47,280 --> 00:25:50,000 Speaker 8: that Trump did, and that's why we have so many 447 00:25:50,040 --> 00:25:53,320 Speaker 8: Reagan appointees who are still active judges. These were folks 448 00:25:53,320 --> 00:25:56,200 Speaker 8: who were getting appointed in their thirties and their early forties. 449 00:25:56,520 --> 00:25:59,000 Speaker 8: They've been sitting on the bench from anywhere from thirty 450 00:25:59,040 --> 00:26:03,320 Speaker 8: six thirty seven years to nearly forty years some of them. 451 00:26:03,680 --> 00:26:05,920 Speaker 8: And you know, they've spent a lot of time on 452 00:26:05,960 --> 00:26:09,600 Speaker 8: the court and seen administration to administration, seeing all of 453 00:26:09,640 --> 00:26:13,120 Speaker 8: these changes. You know, Judge Lambert and DC for one, 454 00:26:13,200 --> 00:26:16,520 Speaker 8: he's talked about how he was arguing on behalf of 455 00:26:16,560 --> 00:26:19,720 Speaker 8: the Reagan administration in court before he got a federal 456 00:26:19,840 --> 00:26:23,040 Speaker 8: judge ship. So these are folks that you know, Reagan 457 00:26:23,119 --> 00:26:27,520 Speaker 8: administration officials were familiar with, knew of them, and you know, 458 00:26:27,560 --> 00:26:30,280 Speaker 8: sort of had the conservative credentials that they wanted to 459 00:26:30,760 --> 00:26:32,680 Speaker 8: put onto the court. Now, of course, some of them 460 00:26:32,680 --> 00:26:35,200 Speaker 8: are in blue states. That means that they had blueslips 461 00:26:35,200 --> 00:26:38,160 Speaker 8: that were signed by Democratic senators in order for them 462 00:26:38,200 --> 00:26:41,800 Speaker 8: to get the seats. But overall, Reagan really had an 463 00:26:41,800 --> 00:26:45,160 Speaker 8: opportunity to shape the courts in a really conservative way, 464 00:26:45,720 --> 00:26:48,960 Speaker 8: just as Trump did during his first term and will 465 00:26:49,000 --> 00:26:51,280 Speaker 8: to the extent that's possible during a second. 466 00:26:51,920 --> 00:26:57,000 Speaker 2: But conservative ideology has evolved in the nearly forty years 467 00:26:57,040 --> 00:27:02,200 Speaker 2: since Reagan left office, and also the current administration doesn't 468 00:27:02,200 --> 00:27:06,440 Speaker 2: always seem to be interested in conservative ideology, but rather 469 00:27:07,160 --> 00:27:10,639 Speaker 2: gathering more power for the president and the executive branch. 470 00:27:11,280 --> 00:27:14,960 Speaker 8: Yeah, I think that's right, and it's just very interesting 471 00:27:15,000 --> 00:27:17,399 Speaker 8: to watch the divide that we see on some of 472 00:27:17,400 --> 00:27:21,960 Speaker 8: these courts, where we'll even have instances where Reagan appointees 473 00:27:22,040 --> 00:27:25,680 Speaker 8: and Trump appointees are split over an issue and they 474 00:27:25,720 --> 00:27:27,919 Speaker 8: won't be lined up in ruling the same way. And 475 00:27:27,960 --> 00:27:30,639 Speaker 8: you would think, oh, you know, a conservative is a conservative, 476 00:27:30,720 --> 00:27:34,920 Speaker 8: but really we're dealing with shades of conservatism here. And 477 00:27:35,040 --> 00:27:36,879 Speaker 8: the way I've started to be thinking about it is 478 00:27:36,920 --> 00:27:41,120 Speaker 8: a little more okay, is a Trump appointing maybe even 479 00:27:41,200 --> 00:27:44,520 Speaker 8: further to the right than a Reagan appointee necessarily is. 480 00:27:45,000 --> 00:27:47,760 Speaker 8: And that's not the case for all courts. I cover 481 00:27:47,800 --> 00:27:49,520 Speaker 8: the Fifth Circuit a lot, and I think the Reagan 482 00:27:49,520 --> 00:27:52,240 Speaker 8: appointees on that court are quite in line with the 483 00:27:52,240 --> 00:27:55,240 Speaker 8: Trump appointees there. But in others that's not so much 484 00:27:55,280 --> 00:27:59,520 Speaker 8: the case. They're much more traditionalist conservatives. They really think about, 485 00:28:00,000 --> 00:28:04,280 Speaker 8: you know, the Buckley era of conservatism and what that 486 00:28:04,320 --> 00:28:05,120 Speaker 8: all means for them. 487 00:28:05,640 --> 00:28:08,760 Speaker 2: Well, it's more about the rule of law. I think 488 00:28:08,880 --> 00:28:12,320 Speaker 2: for some of the regular appointees, the older judges. And 489 00:28:12,400 --> 00:28:15,360 Speaker 2: you talk to a former Reaguan appointed judge in Miami, 490 00:28:15,440 --> 00:28:19,560 Speaker 2: Thomas Scott, who said, they're institutionalists. They're going to come 491 00:28:19,600 --> 00:28:22,119 Speaker 2: down very hard. You're playing games with the court and 492 00:28:22,160 --> 00:28:25,400 Speaker 2: it's not going to be successful. And I think we've 493 00:28:25,440 --> 00:28:25,920 Speaker 2: seen that. 494 00:28:26,280 --> 00:28:30,000 Speaker 8: Yeah, And it's also important to recognize again, these folks 495 00:28:30,040 --> 00:28:33,240 Speaker 8: have been on the for decades. They realize that their 496 00:28:33,320 --> 00:28:37,040 Speaker 8: power comes from people complying with their rulings. So there's 497 00:28:37,080 --> 00:28:39,800 Speaker 8: a little bit of self preservation. They're right in terms 498 00:28:39,840 --> 00:28:42,720 Speaker 8: of them wanting to say, hey, I still have influence here, 499 00:28:43,040 --> 00:28:45,560 Speaker 8: but I only have this influence if you actually go 500 00:28:45,680 --> 00:28:49,000 Speaker 8: along with what I'm doing here. And there's that, but 501 00:28:49,040 --> 00:28:51,800 Speaker 8: there's also this respect for the rule of law. They've 502 00:28:51,840 --> 00:28:54,680 Speaker 8: seen it play out again for years and years on 503 00:28:54,720 --> 00:28:56,719 Speaker 8: their time in the bench, and they've seen what happens 504 00:28:56,720 --> 00:28:59,600 Speaker 8: when it's not respected. They've seen what happens in other 505 00:28:59,640 --> 00:29:03,320 Speaker 8: countries when it's not respected. You know, Judge Kaufner, one 506 00:29:03,320 --> 00:29:05,800 Speaker 8: of the judges we mentioned in the story in Seattle, 507 00:29:06,160 --> 00:29:09,520 Speaker 8: he brought up Eastern European governments and saying, you know, 508 00:29:09,600 --> 00:29:12,720 Speaker 8: he had spent time there and watched what happened when 509 00:29:12,760 --> 00:29:15,600 Speaker 8: the rule of law disappeared and what it meant for 510 00:29:15,680 --> 00:29:19,800 Speaker 8: people to be returning to those democratic institutions. So they're 511 00:29:19,840 --> 00:29:24,400 Speaker 8: bringing a lot of perspective here, not just domestically, but globally. 512 00:29:24,960 --> 00:29:27,800 Speaker 2: And I saw an article that said Northeastern courts at 513 00:29:27,800 --> 00:29:31,240 Speaker 2: the center of some of the debates about executive power. 514 00:29:31,320 --> 00:29:34,320 Speaker 2: Is there a reason why it seems centered in some 515 00:29:34,440 --> 00:29:36,240 Speaker 2: of the Northeastern courts. 516 00:29:36,840 --> 00:29:40,240 Speaker 8: Yeah, So, just like during the Biden administration we saw 517 00:29:40,280 --> 00:29:43,720 Speaker 8: so many lawsuits filed in Texas, it seems like Boston 518 00:29:43,920 --> 00:29:46,520 Speaker 8: and other courts that are within the First Circuit are 519 00:29:46,560 --> 00:29:50,720 Speaker 8: becoming the same draw for liberal litigators. And that's really 520 00:29:50,760 --> 00:29:54,920 Speaker 8: because there's a number of Democratic appointees there that make 521 00:29:55,000 --> 00:29:58,840 Speaker 8: up the majority of those courts. So when you're going 522 00:29:58,880 --> 00:30:00,600 Speaker 8: to a circuit and you're saying, hey, I want to 523 00:30:00,600 --> 00:30:03,560 Speaker 8: get the best case law possible for my client. Where 524 00:30:03,600 --> 00:30:06,040 Speaker 8: do I want to file this lawsuit? You're probably going 525 00:30:06,120 --> 00:30:09,040 Speaker 8: to want to try and file it somewhere like Boston. 526 00:30:09,760 --> 00:30:12,360 Speaker 8: You could go, you know, to Rhode Island has had 527 00:30:12,400 --> 00:30:15,120 Speaker 8: a lot of cases as well, and they've even had 528 00:30:15,120 --> 00:30:18,920 Speaker 8: a Trump appointing in Rhode Island ruling against the Trump administration. 529 00:30:19,640 --> 00:30:23,080 Speaker 2: One appointee told you that perhaps, you know, the Reagan 530 00:30:23,480 --> 00:30:25,920 Speaker 2: appointees have been on the bench a long time and 531 00:30:26,000 --> 00:30:29,440 Speaker 2: they might not be as patients as other judges. 532 00:30:30,240 --> 00:30:33,400 Speaker 8: Right, Yeah, you know, I think we all know from 533 00:30:33,960 --> 00:30:37,720 Speaker 8: personal experience, when we, you know, sit down with folks 534 00:30:37,760 --> 00:30:40,760 Speaker 8: who've been doing jobs for a long time, they know 535 00:30:40,840 --> 00:30:43,720 Speaker 8: how the job is done. They have no problem telling 536 00:30:43,760 --> 00:30:46,600 Speaker 8: people how they think the job should be done. And 537 00:30:46,720 --> 00:30:49,040 Speaker 8: you know that very well could be what's happening here 538 00:30:49,080 --> 00:30:49,520 Speaker 8: as well. 539 00:30:49,840 --> 00:30:52,320 Speaker 2: But some legal scholars have said there could be a 540 00:30:52,480 --> 00:30:56,080 Speaker 2: backlash to these kinds of blunt statements from judges. 541 00:30:56,800 --> 00:30:59,360 Speaker 8: Yeah, and we've already seen that play out. You know, 542 00:30:59,360 --> 00:31:02,960 Speaker 8: when I cheffer comment for reaction from the White House 543 00:31:03,040 --> 00:31:05,640 Speaker 8: to Judge Young's one hundred and sixty one page ruling 544 00:31:05,640 --> 00:31:08,840 Speaker 8: that you referenced earlier, you know, a White House official 545 00:31:09,000 --> 00:31:11,680 Speaker 8: shared with me a list of cases in which Judge 546 00:31:11,680 --> 00:31:15,280 Speaker 8: Young had been refersed or had been chided by the 547 00:31:15,560 --> 00:31:18,280 Speaker 8: Supreme Court. And you know that stood out to me 548 00:31:18,400 --> 00:31:21,960 Speaker 8: and them saying, hey, you know this guy, he's not 549 00:31:22,080 --> 00:31:24,680 Speaker 8: a perfect judge, to which I say, you know which 550 00:31:24,800 --> 00:31:27,360 Speaker 8: judge is perfect? I cover them for a living, and 551 00:31:27,920 --> 00:31:30,800 Speaker 8: I think it's hard to say that any judge is perfect. 552 00:31:30,840 --> 00:31:33,680 Speaker 8: They're all human like the rest of us. So it 553 00:31:33,760 --> 00:31:37,560 Speaker 8: was interesting to see that level of pushback from the 554 00:31:37,600 --> 00:31:39,920 Speaker 8: White House on that, And you know, I think it 555 00:31:39,960 --> 00:31:43,880 Speaker 8: will only continue as we see rulings come out. We 556 00:31:44,000 --> 00:31:48,959 Speaker 8: may start seeing things pop up from folks nominations, hearings, 557 00:31:49,400 --> 00:31:53,160 Speaker 8: some rehashing of that nomination process that so many people 558 00:31:53,200 --> 00:31:56,600 Speaker 8: say has become too politicized and too toxic and that 559 00:31:56,640 --> 00:31:59,240 Speaker 8: should be forgotten the second that they become judges on 560 00:31:59,280 --> 00:32:02,080 Speaker 8: the bench. But is that really possible? Can we really 561 00:32:02,080 --> 00:32:03,840 Speaker 8: separate out the two? I don't know. 562 00:32:04,480 --> 00:32:10,160 Speaker 2: There's been this sort of phenomenon of less judges retiring 563 00:32:10,680 --> 00:32:15,200 Speaker 2: during the second Trump administration, especially on the appellate benches, 564 00:32:15,480 --> 00:32:18,400 Speaker 2: and you know, a lot of speculation as to why. So, 565 00:32:18,640 --> 00:32:20,760 Speaker 2: you know, the Reagan appointees have been on the bench 566 00:32:20,800 --> 00:32:23,360 Speaker 2: for a long time, they're in their eighties. Have any 567 00:32:23,400 --> 00:32:26,120 Speaker 2: of them said it's time for me to retire or 568 00:32:26,160 --> 00:32:29,520 Speaker 2: I'm not going to retire, because none. 569 00:32:29,280 --> 00:32:31,760 Speaker 8: Of these judges have come out publicly and said anything. 570 00:32:32,560 --> 00:32:35,280 Speaker 8: Some of them are already on senior status. For example, 571 00:32:35,360 --> 00:32:38,240 Speaker 8: Judge Young is a senior judge. Judge Kaffner is a 572 00:32:38,280 --> 00:32:41,520 Speaker 8: senior judge. That means that they hear fewer cases. Judge 573 00:32:41,560 --> 00:32:44,440 Speaker 8: Lambert is also a senior judge, but he's quite active. 574 00:32:44,440 --> 00:32:47,680 Speaker 8: He hears cases in DC and in Texas, which is 575 00:32:47,720 --> 00:32:50,400 Speaker 8: where he grew up, so he keeps himself very busy. 576 00:32:50,440 --> 00:32:52,960 Speaker 8: But just because you're a senior judge, doesn't mean that 577 00:32:53,000 --> 00:32:56,440 Speaker 8: you work any less. I spoke to Judge Young maybe 578 00:32:56,520 --> 00:33:00,560 Speaker 8: two years ago for a totally unrelated story, and you know, 579 00:33:00,640 --> 00:33:02,760 Speaker 8: he sort of made a comment to me about how 580 00:33:02,800 --> 00:33:05,160 Speaker 8: he's gonna keep going for as long as he can. 581 00:33:05,600 --> 00:33:07,800 Speaker 8: And that's something I've had in the back of my 582 00:33:07,840 --> 00:33:09,280 Speaker 8: mind here as we do this reporting. 583 00:33:09,680 --> 00:33:12,080 Speaker 2: It's amazing how long they've been on the bench and 584 00:33:12,120 --> 00:33:16,040 Speaker 2: how they're still so committed. Thanks so much, Jacqueline. That's 585 00:33:16,080 --> 00:33:20,200 Speaker 2: Bloomberg Law reporter Jacqueline Thompson and that's it for this 586 00:33:20,360 --> 00:33:23,080 Speaker 2: edition of The Bloomberg Law Show. Remember you can always 587 00:33:23,080 --> 00:33:26,000 Speaker 2: get the latest legal news on our Bloomberg Law Podcast. 588 00:33:26,280 --> 00:33:29,320 Speaker 2: You can find them on Apple Podcasts, Spotify, and at 589 00:33:29,480 --> 00:33:34,520 Speaker 2: www dot Bloomberg dot com, slash podcast, Slash Law, and 590 00:33:34,600 --> 00:33:37,640 Speaker 2: remember to tune into The Bloomberg Law Show every weeknight 591 00:33:37,720 --> 00:33:41,200 Speaker 2: at ten pm Wall Street Time. I'm June Grosso, and 592 00:33:41,240 --> 00:33:42,720 Speaker 2: you're listening to Bloomberg