1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:09,280 --> 00:00:14,400 Speaker 1: The showtime series Billions introduced television's first non binary gender 3 00:00:14,440 --> 00:00:20,720 Speaker 1: identifying character, Taylor Mason, about four years ago. Hello, I'm Taylor. 4 00:00:21,079 --> 00:00:24,640 Speaker 1: My pronouns are they, There's, and them. Gender neutral pronouns 5 00:00:24,720 --> 00:00:27,920 Speaker 1: are not new. Marian Webster added a definition for a 6 00:00:28,000 --> 00:00:31,560 Speaker 1: singular day in and they was even the word of 7 00:00:31,560 --> 00:00:34,720 Speaker 1: the year. Many federal courts have referred to parties and 8 00:00:34,800 --> 00:00:37,640 Speaker 1: other people who appear before them by the pronouns that 9 00:00:37,680 --> 00:00:42,279 Speaker 1: conform to their gender identities, but remarkably, some courts have not. 10 00:00:43,080 --> 00:00:46,199 Speaker 1: Joining me. As Holly Barker, Bloomberg Law Senior legal reporter, 11 00:00:46,840 --> 00:00:50,599 Speaker 1: the new pronouns may be confusing to some people who 12 00:00:50,640 --> 00:00:52,800 Speaker 1: aren't familiar with them, So just give us a little 13 00:00:52,800 --> 00:00:57,360 Speaker 1: bit of background. For CIS gender individuals, I'm CIS genders. 14 00:00:57,440 --> 00:01:00,120 Speaker 1: I was assigned female at birth, and I identify as 15 00:01:00,160 --> 00:01:03,240 Speaker 1: a woman. Gender pronouns like he or she. You know, 16 00:01:03,400 --> 00:01:05,919 Speaker 1: it's something we don't really think about. But for people 17 00:01:05,959 --> 00:01:09,920 Speaker 1: who are transgender and or non binary, in other words, 18 00:01:09,920 --> 00:01:12,640 Speaker 1: if they have a gender identity that's different from the 19 00:01:12,640 --> 00:01:15,680 Speaker 1: sex they were assigned at birth, pronouns do matter, and 20 00:01:15,720 --> 00:01:19,640 Speaker 1: they might experience being miss gendered regularly, and it's important 21 00:01:19,680 --> 00:01:24,000 Speaker 1: because it's demoralizing for people, and there's been research that 22 00:01:24,080 --> 00:01:27,160 Speaker 1: you know, it can have negative mental health consequences. So 23 00:01:27,480 --> 00:01:30,600 Speaker 1: addressing people by the pronouns that are consistent with their 24 00:01:30,640 --> 00:01:33,640 Speaker 1: gender identity is something that people need to do in 25 00:01:33,760 --> 00:01:37,560 Speaker 1: light of this. Is there any new rule for federal 26 00:01:37,640 --> 00:01:42,200 Speaker 1: courts about the use of gender pronouns. No, there's emphatically 27 00:01:42,280 --> 00:01:45,760 Speaker 1: no rule or law requiring courts or counsel to report 28 00:01:45,800 --> 00:01:48,360 Speaker 1: to parties or other people who appear in court by 29 00:01:48,360 --> 00:01:51,320 Speaker 1: the pronouns that conformed to their gender identities, at least 30 00:01:51,360 --> 00:01:55,120 Speaker 1: not yet, so federal courts have been handling it differently. 31 00:01:55,200 --> 00:01:58,720 Speaker 1: Tell us about what happened in the Eastern District of 32 00:01:58,760 --> 00:02:03,240 Speaker 1: Wisconsin in the lamb Risk case. So they're the attorneys 33 00:02:03,280 --> 00:02:06,600 Speaker 1: for both parties and am using the pronouns days then 34 00:02:06,800 --> 00:02:09,600 Speaker 1: and there to refer to the plane f Lamours, which 35 00:02:09,600 --> 00:02:12,760 Speaker 1: was Lamous David preference, but the judge sort of basically 36 00:02:13,240 --> 00:02:16,639 Speaker 1: decided it was too much trouble. So specifically, the court 37 00:02:16,720 --> 00:02:20,840 Speaker 1: dropped a footnote explaining that the court didn't intend any 38 00:02:20,880 --> 00:02:23,880 Speaker 1: disrespect the lamours but and this is a quote, because 39 00:02:24,000 --> 00:02:26,959 Speaker 1: the use of plural pronouns to refer to individuals and 40 00:02:27,080 --> 00:02:30,200 Speaker 1: proper understandard rules of English grammar, and it's confusing to 41 00:02:30,280 --> 00:02:33,320 Speaker 1: the reader. The courts will use the singular pronouns corresponding 42 00:02:33,320 --> 00:02:36,720 Speaker 1: to his biological sex here and when necessary. Meanwhile, both 43 00:02:36,720 --> 00:02:39,920 Speaker 1: the Chicago Manual Style and the Associated Prest Style Book 44 00:02:40,080 --> 00:02:45,079 Speaker 1: started recognizing singular use of day in certain circumstances in seventeen, 45 00:02:45,400 --> 00:02:49,120 Speaker 1: and then in twenty nineteen Marion Webster added the definition 46 00:02:49,160 --> 00:02:52,040 Speaker 1: of the singular day, and it was worth of the year. 47 00:02:52,280 --> 00:02:57,040 Speaker 1: So the judges view that this is somehow grammatically incorrect 48 00:02:57,280 --> 00:03:01,600 Speaker 1: or hasn't worked its way, and contemporary linguistics, it just 49 00:03:01,720 --> 00:03:04,200 Speaker 1: isn't right. Sort of the signal it send is that 50 00:03:04,280 --> 00:03:06,360 Speaker 1: it doesn't matter, because you know, it might be a 51 00:03:06,360 --> 00:03:09,600 Speaker 1: hosshole and it might be stilted, but it's certainly possible 52 00:03:09,680 --> 00:03:13,920 Speaker 1: to omit gender pronouns altogether when you're writing a legal opinion, 53 00:03:13,960 --> 00:03:16,480 Speaker 1: almost especially because there are all sorts of other terms 54 00:03:16,520 --> 00:03:19,639 Speaker 1: you can use, like plaintiffs. So it's sort of not 55 00:03:20,080 --> 00:03:23,720 Speaker 1: making the effort to accommodate somebody's wishes in that regard 56 00:03:23,880 --> 00:03:27,239 Speaker 1: is dismissive and I think sort of harmful for parties, 57 00:03:27,560 --> 00:03:29,560 Speaker 1: But it doesn't seem like the judge in that case 58 00:03:29,639 --> 00:03:33,239 Speaker 1: was trying to be unkind I agree. There was another 59 00:03:33,320 --> 00:03:36,440 Speaker 1: case in the Sixth Circuit where the court producing to 60 00:03:36,480 --> 00:03:39,440 Speaker 1: go out of its way to use a gender pronoun, 61 00:03:39,600 --> 00:03:43,240 Speaker 1: in part because the Fifth Circuit has written opinions involving 62 00:03:43,280 --> 00:03:47,880 Speaker 1: transgendered parties and omitted pronouns altogether. But I think you 63 00:03:47,920 --> 00:03:51,000 Speaker 1: know one of the reasons, and they're the court declined, 64 00:03:51,320 --> 00:03:54,600 Speaker 1: despite a request from a party to use the gender 65 00:03:54,640 --> 00:03:59,240 Speaker 1: pronoun that conforms with their gender identity, and instead of 66 00:04:00,080 --> 00:04:04,600 Speaker 1: pronoun altogether, decided to use the male pronouns, which were 67 00:04:04,680 --> 00:04:07,880 Speaker 1: the pronouns that had been assigned at birth to the 68 00:04:07,880 --> 00:04:11,240 Speaker 1: party that wanted to be referred to using female pronouns only. 69 00:04:11,520 --> 00:04:14,280 Speaker 1: And one of the reasons they decided was to avoid 70 00:04:14,320 --> 00:04:17,680 Speaker 1: the appearance of bias. And unless they were trying to 71 00:04:17,720 --> 00:04:21,640 Speaker 1: appear biased, then the embedded assumption is that the sort 72 00:04:21,680 --> 00:04:24,880 Speaker 1: of neutral thing we do in that situation is to 73 00:04:25,160 --> 00:04:27,640 Speaker 1: use the pronoun that was assigned at birth, and it's 74 00:04:27,720 --> 00:04:31,240 Speaker 1: not It's something that the Equal Employment Opportunity Commission is 75 00:04:31,279 --> 00:04:36,800 Speaker 1: recognized as something that kin equal harassment, it's unintentionally and repeatedly, so, 76 00:04:36,800 --> 00:04:39,680 Speaker 1: so I think rather than being this sort of malignant 77 00:04:40,080 --> 00:04:45,080 Speaker 1: or intentionally harmful thing that judges are sometimes doing, I 78 00:04:45,120 --> 00:04:48,800 Speaker 1: think it's sort of a misunderstanding of how importunate it 79 00:04:48,960 --> 00:04:52,600 Speaker 1: is not to sort of intentionally call someone by the 80 00:04:52,640 --> 00:04:56,200 Speaker 1: wrong gender pronoun the misgender them. So the fifth Circuit 81 00:04:56,440 --> 00:05:00,360 Speaker 1: is considered the most conservative circuit in the country, but 82 00:05:00,560 --> 00:05:04,520 Speaker 1: there are judges on that circuit who are handling it correctly, 83 00:05:04,560 --> 00:05:08,479 Speaker 1: and there are judges that are handling it incorrectly. In USB. Varner, 84 00:05:08,560 --> 00:05:11,760 Speaker 1: which is the decision we've been talking about, Judge Dennis 85 00:05:11,839 --> 00:05:15,640 Speaker 1: wroteed this stunt, and in it he used female pronouns 86 00:05:15,720 --> 00:05:19,599 Speaker 1: to discuss Warner, which was Warner's preference. So in that 87 00:05:19,760 --> 00:05:25,080 Speaker 1: respect then it's deviated from the majority, which used male pronouns, 88 00:05:25,160 --> 00:05:28,800 Speaker 1: and other judges like Judge Howe, for example, when he 89 00:05:28,880 --> 00:05:32,679 Speaker 1: writes the opinions, he omits pronouns altogether just it almost 90 00:05:32,680 --> 00:05:35,160 Speaker 1: seems to be a matter of course, there's not very 91 00:05:35,240 --> 00:05:39,560 Speaker 1: much consistency. Dennis seems to agree that it's important to 92 00:05:39,600 --> 00:05:42,960 Speaker 1: call somebody by their preferred pronouns, who avoids the issue 93 00:05:43,000 --> 00:05:46,200 Speaker 1: altogether and Smith and Duncan, who were the two of 94 00:05:46,240 --> 00:05:48,960 Speaker 1: the three judges on the panel, and usb Barner, who 95 00:05:49,040 --> 00:05:53,640 Speaker 1: joined in the majority, either misunderstands the premise over being mean, 96 00:05:53,720 --> 00:05:56,200 Speaker 1: and I would assume it was the former. You refer 97 00:05:56,279 --> 00:05:57,920 Speaker 1: to it as I think this is a good title. 98 00:05:58,000 --> 00:06:02,400 Speaker 1: You refer to it as grammatical Switzerland, what Judge James 99 00:06:02,400 --> 00:06:06,960 Speaker 1: Howe does so. One of the Chicago manuals, the Styles 100 00:06:07,000 --> 00:06:12,160 Speaker 1: General Rules, sort of provide strategies for writing around gender pronouns. Altogether. 101 00:06:12,480 --> 00:06:16,560 Speaker 1: It's like repeating the noun if it's somebody's name, for example, um, 102 00:06:16,760 --> 00:06:19,280 Speaker 1: or admitting the pronoun and it's not really necessary, and 103 00:06:19,600 --> 00:06:23,400 Speaker 1: often pronouns sort of extraneous, and using an article instead 104 00:06:23,400 --> 00:06:26,520 Speaker 1: of a pronoun so instead of his constitutional right, it's 105 00:06:26,560 --> 00:06:30,440 Speaker 1: the constitutional rights for example. Well, while I in my 106 00:06:30,560 --> 00:06:34,320 Speaker 1: view it's preferable to just use the pronouns people ask 107 00:06:34,360 --> 00:06:37,960 Speaker 1: you to, for for some reason, somebody's used that neutrality 108 00:06:38,040 --> 00:06:41,359 Speaker 1: is necessary. There's a way to do it um, and 109 00:06:41,440 --> 00:06:45,320 Speaker 1: it's certainly better than this gendering somebody. The bus Dot 110 00:06:45,400 --> 00:06:48,440 Speaker 1: case is a landmark Supreme Court case where the Court 111 00:06:48,480 --> 00:06:54,040 Speaker 1: haild that Title seven protects employees against discrimination because they're gay, 112 00:06:54,240 --> 00:06:59,799 Speaker 1: or transgender. Did that decision have any influence on what's 113 00:06:59,800 --> 00:07:04,200 Speaker 1: hapening now in the courts with gender pronouns? Interesting that 114 00:07:04,279 --> 00:07:08,040 Speaker 1: you asked that because Eric Corsich, who wrote the majority opinion, 115 00:07:08,640 --> 00:07:12,320 Speaker 1: use female pronouns to refer to a transgender woman, the 116 00:07:12,360 --> 00:07:17,760 Speaker 1: pronoun that this transgender woman wanted him to use. You know, again, 117 00:07:18,080 --> 00:07:21,320 Speaker 1: there's no rule, and it wasn't, you know, something that 118 00:07:21,640 --> 00:07:25,000 Speaker 1: the court said in any way that other courts needed 119 00:07:25,040 --> 00:07:28,480 Speaker 1: to do, but just in terms of modeling, that's behavior 120 00:07:28,560 --> 00:07:31,040 Speaker 1: that they modeled, and you would think that that might 121 00:07:31,280 --> 00:07:36,760 Speaker 1: influence lower courts. And the USB Varner was in January, 122 00:07:37,000 --> 00:07:41,200 Speaker 1: so uh, Bostock was in I believe June until later 123 00:07:41,240 --> 00:07:44,200 Speaker 1: in that year, and most of the decisions I've seen 124 00:07:44,920 --> 00:07:50,080 Speaker 1: since then either omit pronouns altogether or use the party's 125 00:07:50,360 --> 00:07:54,040 Speaker 1: pronoun it's consistent with their gender identity. But still, you know, 126 00:07:54,120 --> 00:07:56,679 Speaker 1: some courts don't, which takes us back to that Eastern 127 00:07:56,720 --> 00:08:00,400 Speaker 1: District of Wisconsin decision where the judge basically said, you know, 128 00:08:00,440 --> 00:08:03,080 Speaker 1: it's too much, too much trouble to use they in 129 00:08:03,120 --> 00:08:06,400 Speaker 1: the singular to refer to this party despite their expression. 130 00:08:07,440 --> 00:08:11,280 Speaker 1: So would you say the boss Stock decision did seem 131 00:08:11,320 --> 00:08:15,760 Speaker 1: to influence most courts. That's really hard to say. Uh, 132 00:08:16,520 --> 00:08:21,240 Speaker 1: most courts, I do think honor of parties requests. But 133 00:08:21,600 --> 00:08:25,360 Speaker 1: you know, we're still seeing instances where where it's not happening, 134 00:08:25,920 --> 00:08:29,040 Speaker 1: like in the Eastern District of was Content case, which 135 00:08:29,120 --> 00:08:31,920 Speaker 1: is you know, decided a little over a year after 136 00:08:32,120 --> 00:08:36,720 Speaker 1: Bostock and where the courts declined to use the party's 137 00:08:36,720 --> 00:08:41,840 Speaker 1: request pronouns. We're still seeing it after Bostock. The Equal 138 00:08:41,840 --> 00:08:47,840 Speaker 1: Employment Opportunity Commission released new guidance just explain that. So 139 00:08:47,880 --> 00:08:51,880 Speaker 1: the agency commemorated the one Your Anniversary Boss Stok in 140 00:08:51,960 --> 00:08:56,040 Speaker 1: June by releasing guid so so Boss Stock, just by 141 00:08:56,080 --> 00:08:59,439 Speaker 1: way of a reminder held for the first time, the 142 00:08:59,520 --> 00:09:05,200 Speaker 1: titles EVAN applies discrimination against homosexual and transgendered people. So 143 00:09:05,360 --> 00:09:07,960 Speaker 1: they're you know, that being sort of a new principle. 144 00:09:08,120 --> 00:09:10,920 Speaker 1: There wasn't a ton of guidance out about it yet, 145 00:09:11,640 --> 00:09:15,679 Speaker 1: So the e o C to address that in June reiterated, 146 00:09:15,800 --> 00:09:20,200 Speaker 1: among other things, that unlawful harassment can include intentionally calling 147 00:09:20,240 --> 00:09:23,680 Speaker 1: someone by the wrong pronoun And they weren't They're not 148 00:09:23,760 --> 00:09:28,240 Speaker 1: referring to sort of accidental or unintentionally doing it. They're 149 00:09:28,280 --> 00:09:34,319 Speaker 1: talking about repeated and an intentional mis gendering. So it's 150 00:09:34,400 --> 00:09:38,880 Speaker 1: something that they've recognized and constitute harassment. Thanks for being 151 00:09:38,960 --> 00:09:43,000 Speaker 1: the Bloomberg Laws Show. Holly, that's Holly Barker, Bloomberg Laws 152 00:09:43,040 --> 00:09:48,640 Speaker 1: Senior legal Reporter. President Joe Biden has selected Elizabeth pre 153 00:09:48,760 --> 00:09:52,080 Speaker 1: Lagger to become the next Solicitor General of the United States. 154 00:09:52,400 --> 00:09:54,840 Speaker 1: Free Lagger is a veteran appellate lawyer who has been 155 00:09:54,840 --> 00:09:59,360 Speaker 1: Acting Solicitor General since January. Join me as Kimberly Strawberry 156 00:09:59,480 --> 00:10:03,839 Speaker 1: Robinson Bloomberg Law Supreme Court reporter. So tell us about 157 00:10:03,920 --> 00:10:08,200 Speaker 1: the importance of the role of the Solicitor General. Well, sure, 158 00:10:08,280 --> 00:10:11,680 Speaker 1: So the Solicitor General, although it's an office that really 159 00:10:11,760 --> 00:10:15,920 Speaker 1: is sort of unknown outside of elite appellant circles, it's 160 00:10:15,960 --> 00:10:18,880 Speaker 1: actually the number four position within the d o J. 161 00:10:19,160 --> 00:10:23,000 Speaker 1: And so not only is it the federal government top 162 00:10:23,120 --> 00:10:26,880 Speaker 1: lawyer at the Supreme Court, but it really oversees all 163 00:10:27,120 --> 00:10:31,480 Speaker 1: of the federal appellate litigation and really determines which cases 164 00:10:31,800 --> 00:10:34,839 Speaker 1: the federal government is going to appeal up to the 165 00:10:34,840 --> 00:10:37,720 Speaker 1: appellate courts and perhaps eventually to the Supreme Court. So 166 00:10:37,720 --> 00:10:41,040 Speaker 1: it's a very powerful office. Uh, and certainly one that 167 00:10:41,240 --> 00:10:44,640 Speaker 1: I'm surprised to see having not been filled for so long. 168 00:10:45,520 --> 00:10:48,400 Speaker 1: Is this the longest that the solicitor general spot has 169 00:10:48,440 --> 00:10:52,199 Speaker 1: been left open with an acting solicito general. Certainly, it's 170 00:10:52,320 --> 00:10:55,920 Speaker 1: the longest in modern times and has really been unprecedented 171 00:10:56,080 --> 00:10:59,720 Speaker 1: in the last several decades. Listeners may remember that under 172 00:10:59,720 --> 00:11:02,800 Speaker 1: the Ump administration there was some grumbling that it was 173 00:11:02,880 --> 00:11:05,760 Speaker 1: taking that administration quite a long time to still the 174 00:11:05,800 --> 00:11:08,680 Speaker 1: solicitor general spot as well, But even then we had 175 00:11:08,720 --> 00:11:12,200 Speaker 1: a nominee in early March, and so not having a 176 00:11:12,240 --> 00:11:16,720 Speaker 1: nominee until August is really quite interesting. And the solicitor 177 00:11:16,840 --> 00:11:20,200 Speaker 1: General that position has to be confirmed by the Senate, 178 00:11:20,679 --> 00:11:22,840 Speaker 1: that's right, This is one that has to be confirmed 179 00:11:22,880 --> 00:11:25,680 Speaker 1: by the Senate. So even though the White House announced 180 00:11:25,679 --> 00:11:28,800 Speaker 1: its intention to have pre Lager be the nominee, we 181 00:11:28,920 --> 00:11:32,319 Speaker 1: still don't have word on when her confirmation hearings might be. 182 00:11:32,760 --> 00:11:35,480 Speaker 1: Although you know, the office is in pretty good hands 183 00:11:35,520 --> 00:11:37,560 Speaker 1: until that time. There are a lot of career deputies 184 00:11:37,600 --> 00:11:40,800 Speaker 1: there that have been there some since the seventies and nineties, 185 00:11:40,920 --> 00:11:43,440 Speaker 1: so there's a lot of institutional knowledge. While we wait 186 00:11:43,520 --> 00:11:45,240 Speaker 1: to see whether or not pre Lagger is going to 187 00:11:45,320 --> 00:11:50,640 Speaker 1: be confirmed. So tell us about Elizabeth pre Lagger. Sure, Well, 188 00:11:50,640 --> 00:11:52,679 Speaker 1: she's a long time d o J attorney. She had 189 00:11:52,720 --> 00:11:56,520 Speaker 1: previously been an assistant in the Solicitor General's office, and 190 00:11:56,520 --> 00:11:59,320 Speaker 1: then I argued some cases in front of the U s. 191 00:11:59,320 --> 00:12:02,360 Speaker 1: Supreme Corps. And then she was briefly detailed to the 192 00:12:02,440 --> 00:12:07,480 Speaker 1: Mueller investigation investigating potential Russian interference in the twenty sixteen election. 193 00:12:07,920 --> 00:12:11,600 Speaker 1: That's likely because she speaks fluent Russian. After that and 194 00:12:11,760 --> 00:12:13,400 Speaker 1: before she went into the d O day she was 195 00:12:13,400 --> 00:12:15,640 Speaker 1: in private practice. But she is one of the few 196 00:12:15,920 --> 00:12:19,480 Speaker 1: female attorneys who has argued regularly in front of the 197 00:12:19,520 --> 00:12:22,800 Speaker 1: Supreme Court, and she's done so on behalf of the 198 00:12:22,800 --> 00:12:25,640 Speaker 1: Biden administration a couple of times since taking on the 199 00:12:25,679 --> 00:12:29,600 Speaker 1: acting SG role in in late January. And she clerk 200 00:12:29,679 --> 00:12:33,360 Speaker 1: for Merrick Garland and also for the first female Solicitor 201 00:12:33,440 --> 00:12:36,840 Speaker 1: General who is now a Supreme Court Justice, Elena Kagan. 202 00:12:37,640 --> 00:12:39,920 Speaker 1: That's right, So she has a pretty impressive background with 203 00:12:40,080 --> 00:12:43,000 Speaker 1: guard to clerkships. Not only did she clerk for now 204 00:12:43,040 --> 00:12:46,040 Speaker 1: Attorney General Merrick Garland, which I can't help but think 205 00:12:46,160 --> 00:12:48,880 Speaker 1: helped her prospects of getting this little for their general. No, 206 00:12:49,360 --> 00:12:52,720 Speaker 1: but She also clerked for two Supreme Court Justices, Ruth 207 00:12:52,760 --> 00:12:55,880 Speaker 1: Vader Ginsburg and then Elena Kagan. And you mentioned that 208 00:12:55,920 --> 00:13:00,000 Speaker 1: Elena Kagan was the first female Solicitor General and Elizabeth 209 00:13:00,000 --> 00:13:02,720 Speaker 1: Prologer would be just the second. She seems to have 210 00:13:02,960 --> 00:13:06,280 Speaker 1: a lot of experience, she seems top notch. Why was 211 00:13:06,320 --> 00:13:10,200 Speaker 1: there a delay in naming her as a nominee. Well, 212 00:13:10,200 --> 00:13:14,080 Speaker 1: we've heard from sources, you know, former individuals but in 213 00:13:14,120 --> 00:13:17,160 Speaker 1: the Solicitor General's office that there was some handling between 214 00:13:17,200 --> 00:13:20,240 Speaker 1: the White House and the Department of Justice. As I mentioned, 215 00:13:20,320 --> 00:13:24,360 Speaker 1: Plager but probably got some backing from Merrick Garland Um 216 00:13:24,440 --> 00:13:27,320 Speaker 1: who has championed her career for a very long time. 217 00:13:27,760 --> 00:13:31,439 Speaker 1: But the White House has really placed an emphasis on diversity, 218 00:13:31,559 --> 00:13:35,319 Speaker 1: both racially and with professional experience. And we've been hearing 219 00:13:35,320 --> 00:13:38,640 Speaker 1: that the White House was looking for either an attorney 220 00:13:38,640 --> 00:13:41,800 Speaker 1: of color to leave the office or for somebody with 221 00:13:41,920 --> 00:13:45,200 Speaker 1: criminal defense background, and there's a lot of pressure on 222 00:13:45,240 --> 00:13:48,240 Speaker 1: the White House to kind of reverse the traditional pipeline 223 00:13:48,240 --> 00:13:50,880 Speaker 1: that we see in these high up d o J. 224 00:13:51,080 --> 00:13:55,559 Speaker 1: Positions that really rely on prosecutors, and we really haven't 225 00:13:55,600 --> 00:13:58,880 Speaker 1: seen it happen yet. So the delay in naming a nominee, 226 00:13:58,880 --> 00:14:00,840 Speaker 1: as you write, a p is to have worked in 227 00:14:00,880 --> 00:14:04,080 Speaker 1: her favor. Well, that's right, because you know, as I said, 228 00:14:04,160 --> 00:14:06,720 Speaker 1: she has been doing this job on an acting basis 229 00:14:07,120 --> 00:14:09,920 Speaker 1: um for an unprecedented amount of time. We've seen her 230 00:14:10,080 --> 00:14:12,520 Speaker 1: really take on some of the hardest jobs that a 231 00:14:12,600 --> 00:14:15,400 Speaker 1: solicitor general has to do. That is taking over from 232 00:14:15,440 --> 00:14:19,840 Speaker 1: a previous administration and deciding when the solicitor General's office 233 00:14:19,960 --> 00:14:23,960 Speaker 1: is going to change positions from a previous administration. As 234 00:14:24,000 --> 00:14:26,120 Speaker 1: you can imagine, there were some differences in the way 235 00:14:26,160 --> 00:14:29,280 Speaker 1: of thinking about certain cases between the Trump administration and 236 00:14:29,320 --> 00:14:33,000 Speaker 1: the Biden administration, you know, and Elizabeth Prologer was at 237 00:14:33,040 --> 00:14:35,800 Speaker 1: the front of deciding whether or not the federal government 238 00:14:35,880 --> 00:14:38,080 Speaker 1: should you know, do a one eighty, or whether or 239 00:14:38,160 --> 00:14:40,400 Speaker 1: not they should stick the course and maybe not take 240 00:14:40,440 --> 00:14:44,120 Speaker 1: a hit to their institutional reputation. So she has less 241 00:14:44,120 --> 00:14:48,560 Speaker 1: senior federal government experience than prior solicitor generals. Does that 242 00:14:48,640 --> 00:14:52,000 Speaker 1: really make a difference, Well, you know, I guess we'll 243 00:14:52,040 --> 00:14:54,120 Speaker 1: have to see whether or not it's something that comes 244 00:14:54,160 --> 00:14:57,200 Speaker 1: up in her confirmation hearing. You know, the solicitor General's 245 00:14:57,240 --> 00:15:00,040 Speaker 1: office has often been used as a stepping stone to 246 00:15:00,160 --> 00:15:03,240 Speaker 1: the Supreme Court. We've already mentioned Elena Kagan, but of 247 00:15:03,280 --> 00:15:05,960 Speaker 1: course you know third Good Marshal was another really high 248 00:15:05,960 --> 00:15:09,160 Speaker 1: profile Solicitor General who eventually got the nod to be 249 00:15:09,280 --> 00:15:11,840 Speaker 1: on the Supreme Court. I think this is something that's 250 00:15:11,880 --> 00:15:14,840 Speaker 1: changing in the dynamic of the office. Going back to 251 00:15:15,200 --> 00:15:18,040 Speaker 1: George Bush's Solita General Robert Bork, we actually saw him 252 00:15:18,080 --> 00:15:21,040 Speaker 1: step down from the d C Circuit to take on 253 00:15:21,080 --> 00:15:24,520 Speaker 1: the Solicitor general role of judge ship that's really considered 254 00:15:24,520 --> 00:15:27,120 Speaker 1: to be on the second most important court of the country. 255 00:15:27,400 --> 00:15:31,360 Speaker 1: Um So, now we see, particularly with President Trump's nominee, 256 00:15:31,400 --> 00:15:34,440 Speaker 1: that those kinds of credentials are not being required, and 257 00:15:34,480 --> 00:15:37,080 Speaker 1: we'll see if that's something that continues with pur Lager 258 00:15:37,160 --> 00:15:40,480 Speaker 1: and beyond. So, Kimberly, the White House had to make 259 00:15:40,520 --> 00:15:45,840 Speaker 1: a decision because of a law. Tell us about that law, right, So, 260 00:15:45,960 --> 00:15:48,600 Speaker 1: this is a law that was intended to really prevent 261 00:15:48,760 --> 00:15:52,520 Speaker 1: and runs around the sentence advice and consent role, where 262 00:15:52,760 --> 00:15:55,200 Speaker 1: you know, presidents would just name someone an acting role 263 00:15:55,240 --> 00:15:58,720 Speaker 1: and lead them there for years, perhaps you know, many 264 00:15:58,800 --> 00:16:02,000 Speaker 1: years spanning their whole had been illustration. And so under 265 00:16:02,040 --> 00:16:05,600 Speaker 1: this law, the d o J has only so long 266 00:16:05,680 --> 00:16:08,320 Speaker 1: that it can have somebody work on an acting basis 267 00:16:08,360 --> 00:16:12,000 Speaker 1: before you know, they need to have somebody up for nomination, 268 00:16:12,240 --> 00:16:16,400 Speaker 1: and that timeline runs out in November. Now, once Elizabeth 269 00:16:16,680 --> 00:16:20,120 Speaker 1: Prologger is formally nominated and her nomination is sent to 270 00:16:20,120 --> 00:16:24,280 Speaker 1: the Senate, that timeline will move beyond. But it hasn't 271 00:16:24,280 --> 00:16:26,200 Speaker 1: really happened that the d o J has been coming 272 00:16:26,240 --> 00:16:28,040 Speaker 1: up on a timeline like this. As we talked, this 273 00:16:28,080 --> 00:16:33,000 Speaker 1: has really been an unprecedented delay. Did Divide administration offer 274 00:16:33,400 --> 00:16:38,640 Speaker 1: the job to California Supreme Court Justice Leandre Krueger, Well, 275 00:16:38,680 --> 00:16:41,440 Speaker 1: that's something that we heard very early in the process, 276 00:16:41,640 --> 00:16:44,720 Speaker 1: uh sometime in January that not only did the White 277 00:16:44,720 --> 00:16:48,760 Speaker 1: House um offer her the nomination once, but twice and 278 00:16:48,920 --> 00:16:52,480 Speaker 1: she declined. You know that that's something you know that 279 00:16:52,640 --> 00:16:54,800 Speaker 1: isn't out of the realm to think that someone would 280 00:16:54,800 --> 00:16:58,800 Speaker 1: step down from a prestigious place like a justice on 281 00:16:58,840 --> 00:17:01,880 Speaker 1: the California's Court, because as I mentioned, you know, this 282 00:17:02,120 --> 00:17:05,399 Speaker 1: is a stepping stone to the Supreme Court, and Leander 283 00:17:05,440 --> 00:17:08,040 Speaker 1: Krueger is one of the leading candidates, one of the 284 00:17:08,119 --> 00:17:11,679 Speaker 1: few leading candidates UM for the next opening on the 285 00:17:11,720 --> 00:17:15,400 Speaker 1: Supreme Court. As we've talked about before, this Listener General's 286 00:17:15,440 --> 00:17:19,720 Speaker 1: office has faced criticism for its lack of gender diversity. 287 00:17:20,200 --> 00:17:23,679 Speaker 1: The Soldiery General's Office put forward sixty one minute argument 288 00:17:23,720 --> 00:17:27,760 Speaker 1: in fifty eight cases compared with ten women. Are they 289 00:17:27,840 --> 00:17:33,119 Speaker 1: working on gender diversity with prologer there? Now, that's something 290 00:17:33,160 --> 00:17:35,760 Speaker 1: that you know, we've heard from the Biden administrations that 291 00:17:35,840 --> 00:17:38,800 Speaker 1: they do want to have more diversity. You know. Not 292 00:17:38,920 --> 00:17:42,760 Speaker 1: only is the number from last term concerning, but it's 293 00:17:42,840 --> 00:17:45,960 Speaker 1: even more concerning because it's really seen as a driver 294 00:17:46,240 --> 00:17:50,479 Speaker 1: of the total imbalance between men and female attorneys arguing 295 00:17:50,520 --> 00:17:53,080 Speaker 1: at the Supreme Court. That's really because the Soldier of 296 00:17:53,119 --> 00:17:56,480 Speaker 1: General's Office participates in so many of these oral arguments. 297 00:17:56,480 --> 00:17:59,359 Speaker 1: They are in approximately two thirds of these cases. So 298 00:17:59,480 --> 00:18:02,600 Speaker 1: if you have an Sg's office that isn't really well 299 00:18:02,680 --> 00:18:06,000 Speaker 1: balanced and isn't diverse, you're not going to have you know, 300 00:18:06,080 --> 00:18:09,800 Speaker 1: attorneys as a whole who are representative um of the 301 00:18:09,840 --> 00:18:12,800 Speaker 1: country who are arguing at the court. There's also a 302 00:18:12,840 --> 00:18:17,640 Speaker 1: problem with racial diversity as well, right, and that's probably 303 00:18:17,800 --> 00:18:21,720 Speaker 1: even bigger are problem for the Solicitor General's Office than 304 00:18:22,520 --> 00:18:27,160 Speaker 1: than the gender diversity and really diversity on so many 305 00:18:27,240 --> 00:18:30,080 Speaker 1: levels as a problem in the office. You know, beyond 306 00:18:30,119 --> 00:18:33,359 Speaker 1: just racial and gender diversity. There really is just one 307 00:18:33,680 --> 00:18:37,719 Speaker 1: kind of typical professional pipeline um you know that we 308 00:18:37,760 --> 00:18:41,679 Speaker 1: see traditionally to the Solicitor General's office. That is, you know, 309 00:18:41,720 --> 00:18:45,399 Speaker 1: a Supreme Court clerkship, a prestigious job in you know, 310 00:18:45,480 --> 00:18:49,440 Speaker 1: an appellate shop in Washington, and then you know some 311 00:18:49,560 --> 00:18:53,359 Speaker 1: kind of prosecutor rule or siding with the federal government. 312 00:18:53,400 --> 00:18:55,639 Speaker 1: And so that's something that Carlager is not going to 313 00:18:55,760 --> 00:18:58,440 Speaker 1: offer a lot of diversity, and that the Biden administration 314 00:18:58,480 --> 00:19:01,240 Speaker 1: will continue to be pressed on. This is not a 315 00:19:01,320 --> 00:19:03,600 Speaker 1: job you know right out of law school. These are 316 00:19:03,720 --> 00:19:09,560 Speaker 1: very experienced attorneys who are going for these jobs, that's right. 317 00:19:09,600 --> 00:19:13,240 Speaker 1: These are typically people who have you know, several years 318 00:19:13,400 --> 00:19:17,359 Speaker 1: um practicing in private practice that you know that's on 319 00:19:17,440 --> 00:19:20,560 Speaker 1: top of these prestigious clerkships. You know, Prai Lauger is 320 00:19:20,600 --> 00:19:23,479 Speaker 1: certainly not out of bounds with having you know, clerks 321 00:19:23,480 --> 00:19:26,520 Speaker 1: for Americ Garland and then two Supreme Court justices. So 322 00:19:26,960 --> 00:19:29,960 Speaker 1: it's definitely not something in entry level position, but they're 323 00:19:30,040 --> 00:19:34,520 Speaker 1: really sought out positions within the federal government that you know, 324 00:19:34,600 --> 00:19:38,119 Speaker 1: attorneys generally stay in for about five years before you know, 325 00:19:38,600 --> 00:19:41,800 Speaker 1: moving out and allowing others to step into that prestigious role. 326 00:19:42,320 --> 00:19:46,280 Speaker 1: And how big is the office? How many attorneys? Well, 327 00:19:46,280 --> 00:19:48,560 Speaker 1: there's been some movement in the number of attorneys. There's 328 00:19:48,560 --> 00:19:52,879 Speaker 1: approximately twenty to twenty three attorneys in the office, and 329 00:19:52,960 --> 00:19:56,520 Speaker 1: those split between kind of temporary positions, these five year 330 00:19:56,560 --> 00:20:01,720 Speaker 1: positions to career positions. I mentioned one of the deputies 331 00:20:01,800 --> 00:20:05,000 Speaker 1: has been there since the nine seventies um and then 332 00:20:05,480 --> 00:20:09,119 Speaker 1: also balanced with some political appointees. So not only is 333 00:20:09,160 --> 00:20:12,800 Speaker 1: the Solicitor general political pointee, but also their principal deputy, 334 00:20:13,400 --> 00:20:16,040 Speaker 1: which is the role that Prelauter is serving them now. 335 00:20:16,320 --> 00:20:19,280 Speaker 1: So we're getting closer, not quite there yet to the 336 00:20:19,320 --> 00:20:22,080 Speaker 1: first Funday in October. Let's talk about some of the 337 00:20:22,560 --> 00:20:29,320 Speaker 1: high profile cases, starting with the abortion case. Right this uh, 338 00:20:29,480 --> 00:20:31,480 Speaker 1: you know, this next term that's coming up is really 339 00:20:31,480 --> 00:20:34,840 Speaker 1: going to be quite a test for you know, the 340 00:20:34,920 --> 00:20:39,119 Speaker 1: Supreme Court. This abortion case is Dobbs versus Jackson Women's 341 00:20:39,119 --> 00:20:44,280 Speaker 1: Health Organization, and it's a challenge to Mississippi's Gestational Age Act, 342 00:20:44,359 --> 00:20:48,680 Speaker 1: which bans abortion after fifteen weeks. Now, the question formally 343 00:20:48,760 --> 00:20:52,080 Speaker 1: presented to the justices here is about so called pre 344 00:20:52,200 --> 00:20:56,280 Speaker 1: viability abortions. But the briefs from the party and from 345 00:20:56,440 --> 00:21:00,159 Speaker 1: the supporting briefs from Amikus all really go after or 346 00:21:00,280 --> 00:21:02,920 Speaker 1: Row versus Wade, and the right to have an abortion 347 00:21:03,040 --> 00:21:06,320 Speaker 1: at all. Abortion remains one of the most contentious issues 348 00:21:06,440 --> 00:21:11,720 Speaker 1: in this country. Another contentious issue is Second Amendment rights. 349 00:21:12,119 --> 00:21:15,919 Speaker 1: Tell us about that case, that's right the case. The 350 00:21:15,920 --> 00:21:19,440 Speaker 1: Supreme Court will also take up this very contentious issue 351 00:21:19,520 --> 00:21:23,919 Speaker 1: in New York State Rights Rifle versus and Sorry, the 352 00:21:23,920 --> 00:21:26,280 Speaker 1: Supreme Court will also take up this issue in New 353 00:21:26,320 --> 00:21:30,360 Speaker 1: York State Rifle and Pistol Association versus Corelett. Now, this 354 00:21:30,440 --> 00:21:35,000 Speaker 1: is a challenge just to New York's concealed carry permit process, 355 00:21:35,080 --> 00:21:38,879 Speaker 1: and the question is really whether state legislatures can place 356 00:21:39,040 --> 00:21:42,399 Speaker 1: limits um on a consumed carry permit or whether the 357 00:21:42,480 --> 00:21:46,800 Speaker 1: Second Amendment uh limits what the state legislatures can do. 358 00:21:47,119 --> 00:21:51,120 Speaker 1: And in particular, New York provides local authorities with quite 359 00:21:51,119 --> 00:21:54,159 Speaker 1: a bit of disprestion when deciding whether or not to 360 00:21:54,200 --> 00:21:57,760 Speaker 1: grant these permits. And that is what in the individual 361 00:21:57,800 --> 00:22:02,240 Speaker 1: tier challenging that that kind of dis Russian violates the Constitution. 362 00:22:03,000 --> 00:22:07,080 Speaker 1: And you have several justices on the Supreme Court, conservative 363 00:22:07,160 --> 00:22:12,000 Speaker 1: justices who have wanted to take up a Second Amendment 364 00:22:12,040 --> 00:22:15,880 Speaker 1: case because they haven't taken up one in about a decade. Right, 365 00:22:15,920 --> 00:22:19,200 Speaker 1: we have seen kind of a minority of the conservative 366 00:22:19,240 --> 00:22:22,239 Speaker 1: justices for a long time saying that, you know, there 367 00:22:22,280 --> 00:22:26,159 Speaker 1: are questions that are left open, uh, since the Supreme 368 00:22:26,200 --> 00:22:30,480 Speaker 1: Court really heard one of its landmark cases heller Um, 369 00:22:30,520 --> 00:22:33,479 Speaker 1: deciding some Second Amendment issues, and that you know, federal 370 00:22:33,560 --> 00:22:36,840 Speaker 1: lower federal courts don't really need guidance on these issues. 371 00:22:36,880 --> 00:22:39,800 Speaker 1: But we've seen a majority of the justice saying that 372 00:22:39,880 --> 00:22:42,680 Speaker 1: they didn't want to tackle the issue. They've been really 373 00:22:42,720 --> 00:22:46,320 Speaker 1: denying cases that deal with these same issues, uh, for 374 00:22:46,400 --> 00:22:49,840 Speaker 1: almost a decade, And it wasn't until we saw, you know, 375 00:22:50,400 --> 00:22:53,800 Speaker 1: Justice Barrett come into the picture that we saw one 376 00:22:53,800 --> 00:22:56,879 Speaker 1: of these cases actually get granted at the Supreme Court. 377 00:22:57,320 --> 00:23:01,119 Speaker 1: So with these two issues alone, it seems like next 378 00:23:01,200 --> 00:23:04,400 Speaker 1: term is going to be a lot more controversial then 379 00:23:04,480 --> 00:23:07,680 Speaker 1: this term was. That's right. You know, if you look 380 00:23:07,720 --> 00:23:10,159 Speaker 1: back at this last term, you kind of saw an 381 00:23:10,160 --> 00:23:13,560 Speaker 1: effort by at least some of the justices to moderate 382 00:23:13,880 --> 00:23:16,439 Speaker 1: some of the rulings to kind of not go as 383 00:23:16,520 --> 00:23:20,199 Speaker 1: far as conservatives may have wanted them to go. But 384 00:23:20,520 --> 00:23:24,000 Speaker 1: these cases are going to really be where the rubber 385 00:23:24,040 --> 00:23:26,320 Speaker 1: meets the road. Are we going to see the conservative 386 00:23:26,359 --> 00:23:30,480 Speaker 1: justices really moderate and kind of kind of uphold precedent, 387 00:23:30,600 --> 00:23:33,280 Speaker 1: or are we going to see them go big on 388 00:23:33,520 --> 00:23:38,320 Speaker 1: these two very controversial issues. Now, the marathon bomber case 389 00:23:39,240 --> 00:23:43,520 Speaker 1: that's coming before the Supreme Court, what's the issue there? Right? 390 00:23:43,560 --> 00:23:47,399 Speaker 1: So that is a really interesting case because, uh, you know, 391 00:23:47,640 --> 00:23:51,280 Speaker 1: it is about these capital sentences that Joe Harris or 392 00:23:51,320 --> 00:23:57,240 Speaker 1: not of actually got for his participation in the marathon bombing, 393 00:23:57,640 --> 00:24:00,880 Speaker 1: but it doesn't actually deal with his guilt or the sense. Instead, 394 00:24:00,960 --> 00:24:03,320 Speaker 1: the justices are going to look at some technical issues 395 00:24:04,080 --> 00:24:07,959 Speaker 1: related to jury selection in the case and evidence that 396 00:24:08,040 --> 00:24:10,639 Speaker 1: was used during the sentencing phase. But this is a 397 00:24:10,640 --> 00:24:13,800 Speaker 1: really interesting case for the Solicitor General. Uh, you know, 398 00:24:13,840 --> 00:24:16,480 Speaker 1: that being the topic that we started off with in 399 00:24:16,520 --> 00:24:20,119 Speaker 1: that you know, the Biden administration or then candidate Biden 400 00:24:20,160 --> 00:24:23,760 Speaker 1: really campaigned against the death penalty, and here we see 401 00:24:23,800 --> 00:24:27,600 Speaker 1: them in this case just continuing the Trump administration's arguments 402 00:24:27,680 --> 00:24:31,920 Speaker 1: that the death penalty should be reinstated and used. Here 403 00:24:32,720 --> 00:24:36,080 Speaker 1: there are there are some couple of really interesting cases 404 00:24:36,200 --> 00:24:41,000 Speaker 1: involving state secrets, that's right, and this is one. Uh, 405 00:24:41,160 --> 00:24:42,880 Speaker 1: you know, these are some cases that I was really 406 00:24:42,920 --> 00:24:45,439 Speaker 1: surprised that there wasn't more of a push for the 407 00:24:45,440 --> 00:24:50,400 Speaker 1: Biden administration to have a Senate confirmed Solicitor General um 408 00:24:50,560 --> 00:24:52,840 Speaker 1: by the time that these cases were argued, because they 409 00:24:53,000 --> 00:24:58,280 Speaker 1: are so integral to the federal government litigation. But you know, 410 00:24:58,359 --> 00:25:02,320 Speaker 1: these two cases deal with the state secrets privilege, and 411 00:25:02,400 --> 00:25:05,919 Speaker 1: this is the idea that if the federal government is 412 00:25:05,960 --> 00:25:09,280 Speaker 1: required to turn over certain information and litigations, that it 413 00:25:09,280 --> 00:25:12,960 Speaker 1: could be harmful to national defense. Now these cases really 414 00:25:13,000 --> 00:25:15,760 Speaker 1: come up in the context of the War on Terror, 415 00:25:16,280 --> 00:25:19,360 Speaker 1: but the United States has been in certain state privileges 416 00:25:19,440 --> 00:25:22,879 Speaker 1: back since nine They've been used in cases you know 417 00:25:22,960 --> 00:25:26,960 Speaker 1: as wide ranging as discriminations, things on wire tapping, as 418 00:25:27,040 --> 00:25:30,240 Speaker 1: US citizens and evocatent. So it definitely has, you know, 419 00:25:30,480 --> 00:25:33,840 Speaker 1: implications beyond the War on terror. It's always a pleasure 420 00:25:33,880 --> 00:25:36,479 Speaker 1: to have you on the show. Kimberly, that's Bloomberg Law 421 00:25:36,560 --> 00:25:40,480 Speaker 1: Supreme Court Reporter Kimberly Strawbridge Robinson And that's it for 422 00:25:40,560 --> 00:25:43,239 Speaker 1: this edition of the Bloomberg Law Show. Remember you can 423 00:25:43,280 --> 00:25:46,200 Speaker 1: always get the latest legal news Honor Bloomberg Law podcast. 424 00:25:46,600 --> 00:25:49,280 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 425 00:25:49,480 --> 00:25:54,360 Speaker 1: www dot bloomberg dot com, slash podcast slash Law. I'm 426 00:25:54,440 --> 00:25:56,639 Speaker 1: June Brosso and you're listening to Bloomberg