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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. Among all of

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Speaker 1: the questions about trade, you just heard President Trump fielding

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Speaker 1: in the Rose Garden. He also got some questions about

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Speaker 1: Supreme Court nominee Brett Kavanaugh. President on Saturday commented about

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Speaker 1: the FBI's investigation into those sexual assault charges against Kavanaugh. Yeah,

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Speaker 1: they have free reign. They're gonna do whatever they have

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Speaker 1: to do, whatever it is they do. They'll be doing

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Speaker 1: things that we never even thought of. And hopefully it's

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Speaker 1: the conclusion. Everything will be fun, okay. And I want

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Speaker 1: to clarify those aren't charges, their allegations. And over the weekend,

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Speaker 1: Bloomberg News learned that there may be some limits on

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Speaker 1: that investigation. Let's talk about this with Professor Will Banks

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Speaker 1: from Syracuse Syracuse University Law School. Professor, I want to

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Speaker 1: thank you for taking the time with us this afternoon. Um,

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Speaker 1: not just the limited time, because the time is going

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Speaker 1: to be a week or less but a limited scope,

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Speaker 1: perhaps not allowed to delve into drinking or maybe talk

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Speaker 1: to some of the other accusers. Give us your thoughts

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Speaker 1: on that. Well, you know, it is unclear. I heard

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Speaker 1: the president quote. I saw his tweet from Saturday that

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Speaker 1: suggested that the investigation was unlimited as far as the

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Speaker 1: President's concerned. And the important thing here is that that

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Speaker 1: was the President speaking. Any clarification or characterization of the

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Speaker 1: limits on the investigation that's offered by anyone else in

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Speaker 1: the White House, unless they say they're speaking specifically for

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Speaker 1: the President, that doesn't carry weight. So Don McGann doesn't

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Speaker 1: set the terms of the investigation or its parameters, nor

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Speaker 1: do the members of the Senate. Uh. The fact that

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Speaker 1: it's a so called limited background investigation does tell us something.

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Speaker 1: It suggests that indeed, the era won't be using any

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Speaker 1: compulsory process, no subpoenas or anything of that nature. They're

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Speaker 1: just going to be interviewing witnesses. But you know, they

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Speaker 1: could do a lot of interviews in the course of

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Speaker 1: a few days. If they're only looking at the two

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Speaker 1: the first two accusers and the immediate witnesses that they

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Speaker 1: say they were present at those events, then that's verily

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Speaker 1: a very short list of interviewees and that could be done,

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Speaker 1: as someone said as early as today. So what is

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Speaker 1: your expectation for the outcome of the investigation. It's really

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Speaker 1: hard to say, you know. It's if all they're doing

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Speaker 1: is talking to those two plus the witnesses to the events,

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Speaker 1: it sounds like we're not going to know much more

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Speaker 1: about the veracity of the statements of Judge Kavanaugh or

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Speaker 1: Dr Ford, and we then we did after we heard

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Speaker 1: their testimony. On the other hand, the investigation, you know,

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Speaker 1: the was being interviewed now that if they declined to

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Speaker 1: tell the truth that they're subject to penalty. So I

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Speaker 1: think there's every reason for them to say exactly what

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Speaker 1: they know. I want to ask you a little bit

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Speaker 1: about some of the criticism about Kavanaugh's behavior, how he

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Speaker 1: snapped at some of the senators during the hearing, showing

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Speaker 1: some partisan preference during his opening statement, and even some

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Speaker 1: people were being critical of his appearance on Fox News.

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Speaker 1: They just thought that wasn't becoming of a Supreme Court justice,

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Speaker 1: the Supreme Court justice nominee. I want to get your

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Speaker 1: thoughts on that. Where do you stand there? Uh, you know,

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Speaker 1: it's certainly not a judicial demeanor that he was exhibiting

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Speaker 1: during the hearing last week are certainly by appearing on

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Speaker 1: the media on television. I think, you know, the Senators

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Speaker 1: who will eventually have to decide on the nomination have

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Speaker 1: to look at the entire picture, the entire record, which

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Speaker 1: includes not only everything leading up to the hearings, but

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Speaker 1: the conduct of the hearings themselves, the original hearings, and

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Speaker 1: then this additional testimony that was given last week. I

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Speaker 1: think we do have questions now about the drinking, about

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Speaker 1: his character generally that we didn't have to take into

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Speaker 1: account before. But as far as the FBI talking to

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Speaker 1: the witnesses, the witnesses have already sent letters to Congress

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Speaker 1: um and and if if, if they weren't truthful to Congress,

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Speaker 1: they could be subject to perjury, perjury charges in Congress.

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Speaker 1: They've already sent letters saying that you know, they don't

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Speaker 1: recall or this part, this this party that Dr Ford

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Speaker 1: talked about didn't happen. Uh. It seems to me the

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Speaker 1: FBI is just going to be kind of probably getting

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Speaker 1: kind of the same thing. It's it's certainly possible, but

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Speaker 1: you know, the bureau can ask questions that weren't anticipated

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Speaker 1: by the writers of the letters. They can probe into

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Speaker 1: answers that or or to suggestions or made in the

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Speaker 1: letters that lead to other questions. And you know, they're

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Speaker 1: very seasoned and skillful of course at at the techniques

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Speaker 1: of interviewing. So we we may well learn some things.

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Speaker 1: And indeed it's possible that if if it's truly an

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Speaker 1: unfettered investigation in the way that the President characterized it

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Speaker 1: on the weekend, they may well find that they can

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Speaker 1: talk to others by asking the the interviewees, the immediate interviewees,

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Speaker 1: who else they know who was president at those events.

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Speaker 1: And I just want to remind our listeners that we

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Speaker 1: are away in comments from Commerce Secretary Wilburt Ross, he

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Speaker 1: too will be talking about trade and NAFTA. I'll call

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Speaker 1: it NAFTA anymore. It's completely revamped now and we are

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Speaker 1: waiting for the Commerce Secretary in just a few minutes.

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Speaker 1: But until then, more about Kavanaugh. I'm curious about what

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Speaker 1: you think the dynamic might be if and when Kavanaugh

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Speaker 1: is seated on the Supreme Court, and what it might

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Speaker 1: be between the justices, well, you know, the justices. I

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Speaker 1: think the eighth sitting justices are certainly uh fully capable

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Speaker 1: of sort of rising above this h this period of crisis. Uh.

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Speaker 1: And it is a period of crisis, I would say,

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Speaker 1: And I think it's if if Kavanaugh is confirmed, that

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Speaker 1: he'll be confirmed with an asterisk and way similar to

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Speaker 1: the way that Justice Thomas was confirmed all those years

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Speaker 1: ago in a not too dissimilar environment. It certainly took

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Speaker 1: a time, I think for us to sort of put

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Speaker 1: that Thomas episode with Anita Hill behind us. It would

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Speaker 1: take time, if that happens, for us to do something

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Speaker 1: similar with Kavanaugh. UM. So I wouldn't worry so much

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Speaker 1: about the dynamics on the court. I think the justices

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Speaker 1: are are you know today, they've begun their term, They're

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Speaker 1: they're getting their going with eight justices, they have a

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Speaker 1: lot on their docket this year. And if it's just

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Speaker 1: as Kavanaugh, he will be integrated into the mix. Based

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Speaker 1: on everything you know right now, do you think Judge

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Speaker 1: Kavanaugh gets confirmed? Yeah, I think the odds are still

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Speaker 1: in his favor because of the uh, just because of

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Speaker 1: the partisan lineup in the Senate in Washington today. The

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Speaker 1: Supreme Court is starting it's fall term, but the Court's

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Speaker 1: new term is being overshadowed by the pending nomination of

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Speaker 1: Brett Kavanaugh, as the FBI investigates charges sexual assault against

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Speaker 1: the Appeals Court judge. After last week's emotional Senate hearing,

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Speaker 1: Democratic Senator Sheldon Whitehouse criticized kavan Off for the political

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Speaker 1: nature of some of his comments last week. The fact

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Speaker 1: that we're in a position in this country right now

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Speaker 1: where him going soapartisan, him losing complete control over his temperament.

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Speaker 1: You know they talk about judicial temperament. Didn't see much

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Speaker 1: of that. Greg store is Bloomberg News Supreme Court reporter.

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Speaker 1: He joins us now from more on all of this

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Speaker 1: by phone from the court. So, Greg, how is the

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Speaker 1: absence of a justice they're affecting the Court's new term? Well, Peter,

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Speaker 1: they are. They're starting to hear cases heard the first

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Speaker 1: ones today with just eight justices on the court, and

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Speaker 1: that of course creates a very different dynamic where if

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Speaker 1: they split along ideological lines as as possible they could

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Speaker 1: do in in the first case, they argued today that

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Speaker 1: they would have to reargue the case once they get

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Speaker 1: a ninth justice, which could be in the matter of

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Speaker 1: a week or two, or could be much longer than that.

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Speaker 1: Are they talking about delaying hearing any cases? Not talking

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Speaker 1: about it. But so far, in terms of the cases

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Speaker 1: the Court has agreed to hear um, they have not

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Speaker 1: taken the most high profile, provocative cases. So, for example,

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Speaker 1: there's a appending bid for review in a case involving

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Speaker 1: across that is World War One memorial in the middle

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Speaker 1: of a busy intersection in Maryland just outside the DC border. UM,

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Speaker 1: and the Court so far hasn't acted on that petition. Uh.

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Speaker 1: They are potentially in this case, waiting to see if

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Speaker 1: they have another justice who might provide the deciding vote.

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Speaker 1: I'm speculating a bit here, so, but it seems like

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Speaker 1: they're at least kicking the can down the road on

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Speaker 1: some of those more controversial cases. But in terms of

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Speaker 1: what they have scheduled, they are just going ahead as planned.

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Speaker 1: Got to ask you what is the mood around all

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Speaker 1: of this in the building. It was interesting this argument today,

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Speaker 1: which involved in an Endangered Species Act, was fairly contentious.

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Speaker 1: Um it uh right from the get go. UH. Justice

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Speaker 1: Elena Kagan came out, one of the liberal justice came

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Speaker 1: out and was pretty pretty uh forcefully arguing that uh,

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Speaker 1: the endangered species that could be used to designate this

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Speaker 1: this area as a critical habitat for an endangered froug

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Speaker 1: And just to say, Alito, a conservative came right out

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Speaker 1: after her and suggested that she was spinning the way

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Speaker 1: the case was set up to produce a preferred outcome.

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Speaker 1: So at least at this point, it doesn't seem like

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Speaker 1: on the bench the justices are pulling any punches. Yeah,

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Speaker 1: but but you know the talk in the hallways about

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Speaker 1: you know, the Kavanaugh nomination and the and the and

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Speaker 1: the and the new FBI investigation going on this week. Yeah,

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Speaker 1: it's um, you know, my my sense is that there

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Speaker 1: is going to be some division among the people in

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Speaker 1: this building over that. Um. You know, this is a

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Speaker 1: very raw subject and it's crucially important for the future

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Speaker 1: of the court. Um, you know, it's it's there are

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Speaker 1: two worlds that we could have going forward. We could

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Speaker 1: have a court that um tries to lay low for

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Speaker 1: a little while and not deal with these really controversial cases.

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Speaker 1: Or you could have a world where it feels a

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Speaker 1: little bit like an extension of that Senate hearing with

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Speaker 1: with Judge Kavanaugh there where the two sides are even

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Speaker 1: more vociferously hollering at one another. And at this point

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Speaker 1: I would say that the second possibility is at least possible.

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Speaker 1: And do you get a sense that once this limited

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Speaker 1: investigation by the FBI is done that Um, but let

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Speaker 1: me just ask straight up, do you think Kavanaugh still

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Speaker 1: gets confirmed? Here? I have so much trouble. You've covered

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Speaker 1: a lot of these herring scragg and I know I'm

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Speaker 1: not trying to put you on the spot, you know, Um,

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Speaker 1: indications are that that the FBI investigation isn't going to

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Speaker 1: tell us too much more than what we already know

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Speaker 1: could be wrong in there. We'll see where it goes. Um.

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Speaker 1: You know, it will then come down to basically what

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Speaker 1: it has come down to pretty much the whole time.

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Speaker 1: Those few Republican senators whose votes are still up in

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Speaker 1: the air. It depends on what Susan Collins thinks about

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Speaker 1: his testimony, and she hasn't made that clear. It's um uh,

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Speaker 1: it's been clear that and depends on what It depends

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Speaker 1: on what the FBI reports too. It does depend on

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Speaker 1: with Collins and some of the others. Yeah, the one

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Speaker 1: danger that that brit Kavanaugh has and maybe he didn't

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Speaker 1: have a week ago. Um is that his testimony, his

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Speaker 1: demeanor in the testimony was so combative that that could

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Speaker 1: prompt some senators to say, hey, this is not the

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Speaker 1: kind of judicious person we want on the Supreme Court.

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Speaker 1: And there's also the risk that if he has caught

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Speaker 1: in some smaller life something other than you know, the

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Speaker 1: big sexual assault allegation. If if there's um evidence that's

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Speaker 1: clear enough that he uh misrepresented the facts about his

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Speaker 1: you know, drinking or something else that you know, the

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Speaker 1: references in his yearbooks, that that might be enough of

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Speaker 1: a reason for so many to say, I don't trust

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Speaker 1: this guy. He shouldn't be on the Supreme Court. But

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Speaker 1: you know, this all depends on what's in the mind

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Speaker 1: of two or three pisotal senators. And just in the

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Speaker 1: last seconds, what did you make of President Trump's comments

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Speaker 1: about all this in the Rose Garden today? You know, Peter,

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Speaker 1: I've been I'm afraid I've been upstairs, and you've been

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Speaker 1: working and writing a story about the Endangered Species acted.

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Speaker 1: So I'm gonna have to duck a ne because I

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Speaker 1: haven't heard what he said. Alright, alright about that, faird

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Speaker 1: Greg No problem, listen, thanks, uh, And we know, you'll

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Speaker 1: be stand on you'll you'll be doing your job and

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Speaker 1: we'll we'll talk to you know, Alex Wade coming up there.

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Speaker 1: Just a moment about the White House comments. But the

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Speaker 1: thank you once again, and thanks and thanks for keeping

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Speaker 1: us up to speed. Greg Store, Bloomberg News Supreme Court Reporter.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple podcast, SoundCloud

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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg