WEBVTT - Courts Differ on Use of Gender Neutral Pronouns 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.280 --> 0:00:14.400 The showtime series Billions introduced television's first non binary gender 0:00:14.440 --> 0:00:20.720 identifying character, Taylor Mason, about four years ago. Hello, I'm Taylor. 0:00:21.079 --> 0:00:24.640 My pronouns are they, There's, and them. Gender neutral pronouns 0:00:24.720 --> 0:00:27.920 are not new. Marian Webster added a definition for a 0:00:28.000 --> 0:00:31.560 singular day in and they was even the word of 0:00:31.560 --> 0:00:34.720 the year. Many federal courts have referred to parties and 0:00:34.800 --> 0:00:37.640 other people who appear before them by the pronouns that 0:00:37.680 --> 0:00:42.279 conform to their gender identities, but remarkably, some courts have not. 0:00:43.080 --> 0:00:46.199 Joining me. As Holly Barker, Bloomberg Law Senior legal reporter, 0:00:46.840 --> 0:00:50.599 the new pronouns may be confusing to some people who 0:00:50.640 --> 0:00:52.800 aren't familiar with them, So just give us a little 0:00:52.800 --> 0:00:57.360 bit of background. For CIS gender individuals, I'm CIS genders. 0:00:57.440 --> 0:01:00.120 I was assigned female at birth, and I identify as 0:01:00.160 --> 0:01:03.240 a woman. Gender pronouns like he or she. You know, 0:01:03.400 --> 0:01:05.919 it's something we don't really think about. But for people 0:01:05.959 --> 0:01:09.920 who are transgender and or non binary, in other words, 0:01:09.920 --> 0:01:12.640 if they have a gender identity that's different from the 0:01:12.640 --> 0:01:15.680 sex they were assigned at birth, pronouns do matter, and 0:01:15.720 --> 0:01:19.640 they might experience being miss gendered regularly, and it's important 0:01:19.680 --> 0:01:24.000 because it's demoralizing for people, and there's been research that 0:01:24.080 --> 0:01:27.160 you know, it can have negative mental health consequences. So 0:01:27.480 --> 0:01:30.600 addressing people by the pronouns that are consistent with their 0:01:30.640 --> 0:01:33.640 gender identity is something that people need to do in 0:01:33.760 --> 0:01:37.560 light of this. Is there any new rule for federal 0:01:37.640 --> 0:01:42.200 courts about the use of gender pronouns. No, there's emphatically 0:01:42.280 --> 0:01:45.760 no rule or law requiring courts or counsel to report 0:01:45.800 --> 0:01:48.360 to parties or other people who appear in court by 0:01:48.360 --> 0:01:51.320 the pronouns that conformed to their gender identities, at least 0:01:51.360 --> 0:01:55.120 not yet, so federal courts have been handling it differently. 0:01:55.200 --> 0:01:58.720 Tell us about what happened in the Eastern District of 0:01:58.760 --> 0:02:03.240 Wisconsin in the lamb Risk case. So they're the attorneys 0:02:03.280 --> 0:02:06.600 for both parties and am using the pronouns days then 0:02:06.800 --> 0:02:09.600 and there to refer to the plane f Lamours, which 0:02:09.600 --> 0:02:12.760 was Lamous David preference, but the judge sort of basically 0:02:13.240 --> 0:02:16.639 decided it was too much trouble. So specifically, the court 0:02:16.720 --> 0:02:20.840 dropped a footnote explaining that the court didn't intend any 0:02:20.880 --> 0:02:23.880 disrespect the lamours but and this is a quote, because 0:02:24.000 --> 0:02:26.959 the use of plural pronouns to refer to individuals and 0:02:27.080 --> 0:02:30.200 proper understandard rules of English grammar, and it's confusing to 0:02:30.280 --> 0:02:33.320 the reader. The courts will use the singular pronouns corresponding 0:02:33.320 --> 0:02:36.720 to his biological sex here and when necessary. Meanwhile, both 0:02:36.720 --> 0:02:39.920 the Chicago Manual Style and the Associated Prest Style Book 0:02:40.080 --> 0:02:45.079 started recognizing singular use of day in certain circumstances in seventeen, 0:02:45.400 --> 0:02:49.120 and then in twenty nineteen Marion Webster added the definition 0:02:49.160 --> 0:02:52.040 of the singular day, and it was worth of the year. 0:02:52.280 --> 0:02:57.040 So the judges view that this is somehow grammatically incorrect 0:02:57.280 --> 0:03:01.600 or hasn't worked its way, and contemporary linguistics, it just 0:03:01.720 --> 0:03:04.200 isn't right. Sort of the signal it send is that 0:03:04.280 --> 0:03:06.360 it doesn't matter, because you know, it might be a 0:03:06.360 --> 0:03:09.600 hosshole and it might be stilted, but it's certainly possible 0:03:09.680 --> 0:03:13.920 to omit gender pronouns altogether when you're writing a legal opinion, 0:03:13.960 --> 0:03:16.480 almost especially because there are all sorts of other terms 0:03:16.520 --> 0:03:19.639 you can use, like plaintiffs. So it's sort of not 0:03:20.080 --> 0:03:23.720 making the effort to accommodate somebody's wishes in that regard 0:03:23.880 --> 0:03:27.239 is dismissive and I think sort of harmful for parties, 0:03:27.560 --> 0:03:29.560 But it doesn't seem like the judge in that case 0:03:29.639 --> 0:03:33.239 was trying to be unkind I agree. There was another 0:03:33.320 --> 0:03:36.440 case in the Sixth Circuit where the court producing to 0:03:36.480 --> 0:03:39.440 go out of its way to use a gender pronoun, 0:03:39.600 --> 0:03:43.240 in part because the Fifth Circuit has written opinions involving 0:03:43.280 --> 0:03:47.880 transgendered parties and omitted pronouns altogether. But I think you 0:03:47.920 --> 0:03:51.000 know one of the reasons, and they're the court declined, 0:03:51.320 --> 0:03:54.600 despite a request from a party to use the gender 0:03:54.640 --> 0:03:59.240 pronoun that conforms with their gender identity, and instead of 0:04:00.080 --> 0:04:04.600 pronoun altogether, decided to use the male pronouns, which were 0:04:04.680 --> 0:04:07.880 the pronouns that had been assigned at birth to the 0:04:07.880 --> 0:04:11.240 party that wanted to be referred to using female pronouns only. 0:04:11.520 --> 0:04:14.280 And one of the reasons they decided was to avoid 0:04:14.320 --> 0:04:17.680 the appearance of bias. And unless they were trying to 0:04:17.720 --> 0:04:21.640 appear biased, then the embedded assumption is that the sort 0:04:21.680 --> 0:04:24.880 of neutral thing we do in that situation is to 0:04:25.160 --> 0:04:27.640 use the pronoun that was assigned at birth, and it's 0:04:27.720 --> 0:04:31.240 not It's something that the Equal Employment Opportunity Commission is 0:04:31.279 --> 0:04:36.800 recognized as something that kin equal harassment, it's unintentionally and repeatedly, so, 0:04:36.800 --> 0:04:39.680 so I think rather than being this sort of malignant 0:04:40.080 --> 0:04:45.080 or intentionally harmful thing that judges are sometimes doing, I 0:04:45.120 --> 0:04:48.800 think it's sort of a misunderstanding of how importunate it 0:04:48.960 --> 0:04:52.600 is not to sort of intentionally call someone by the 0:04:52.640 --> 0:04:56.200 wrong gender pronoun the misgender them. So the fifth Circuit 0:04:56.440 --> 0:05:00.360 is considered the most conservative circuit in the country, but 0:05:00.560 --> 0:05:04.520 there are judges on that circuit who are handling it correctly, 0:05:04.560 --> 0:05:08.479 and there are judges that are handling it incorrectly. In USB. Varner, 0:05:08.560 --> 0:05:11.760 which is the decision we've been talking about, Judge Dennis 0:05:11.839 --> 0:05:15.640 wroteed this stunt, and in it he used female pronouns 0:05:15.720 --> 0:05:19.599 to discuss Warner, which was Warner's preference. So in that 0:05:19.760 --> 0:05:25.080 respect then it's deviated from the majority, which used male pronouns, 0:05:25.160 --> 0:05:28.800 and other judges like Judge Howe, for example, when he 0:05:28.880 --> 0:05:32.679 writes the opinions, he omits pronouns altogether just it almost 0:05:32.680 --> 0:05:35.160 seems to be a matter of course, there's not very 0:05:35.240 --> 0:05:39.560 much consistency. Dennis seems to agree that it's important to 0:05:39.600 --> 0:05:42.960 call somebody by their preferred pronouns, who avoids the issue 0:05:43.000 --> 0:05:46.200 altogether and Smith and Duncan, who were the two of 0:05:46.240 --> 0:05:48.960 the three judges on the panel, and usb Barner, who 0:05:49.040 --> 0:05:53.640 joined in the majority, either misunderstands the premise over being mean, 0:05:53.720 --> 0:05:56.200 and I would assume it was the former. You refer 0:05:56.279 --> 0:05:57.920 to it as I think this is a good title. 0:05:58.000 --> 0:06:02.400 You refer to it as grammatical Switzerland, what Judge James 0:06:02.400 --> 0:06:06.960 Howe does so. One of the Chicago manuals, the Styles 0:06:07.000 --> 0:06:12.160 General Rules, sort of provide strategies for writing around gender pronouns. Altogether. 0:06:12.480 --> 0:06:16.560 It's like repeating the noun if it's somebody's name, for example, um, 0:06:16.760 --> 0:06:19.280 or admitting the pronoun and it's not really necessary, and 0:06:19.600 --> 0:06:23.400 often pronouns sort of extraneous, and using an article instead 0:06:23.400 --> 0:06:26.520 of a pronoun so instead of his constitutional right, it's 0:06:26.560 --> 0:06:30.440 the constitutional rights for example. Well, while I in my 0:06:30.560 --> 0:06:34.320 view it's preferable to just use the pronouns people ask 0:06:34.360 --> 0:06:37.960 you to, for for some reason, somebody's used that neutrality 0:06:38.040 --> 0:06:41.359 is necessary. There's a way to do it um, and 0:06:41.440 --> 0:06:45.320 it's certainly better than this gendering somebody. The bus Dot 0:06:45.400 --> 0:06:48.440 case is a landmark Supreme Court case where the Court 0:06:48.480 --> 0:06:54.040 haild that Title seven protects employees against discrimination because they're gay, 0:06:54.240 --> 0:06:59.799 or transgender. Did that decision have any influence on what's 0:06:59.800 --> 0:07:04.200 hapening now in the courts with gender pronouns? Interesting that 0:07:04.279 --> 0:07:08.040 you asked that because Eric Corsich, who wrote the majority opinion, 0:07:08.640 --> 0:07:12.320 use female pronouns to refer to a transgender woman, the 0:07:12.360 --> 0:07:17.760 pronoun that this transgender woman wanted him to use. You know, again, 0:07:18.080 --> 0:07:21.320 there's no rule, and it wasn't, you know, something that 0:07:21.640 --> 0:07:25.000 the court said in any way that other courts needed 0:07:25.040 --> 0:07:28.480 to do, but just in terms of modeling, that's behavior 0:07:28.560 --> 0:07:31.040 that they modeled, and you would think that that might 0:07:31.280 --> 0:07:36.760 influence lower courts. And the USB Varner was in January, 0:07:37.000 --> 0:07:41.200 so uh, Bostock was in I believe June until later 0:07:41.240 --> 0:07:44.200 in that year, and most of the decisions I've seen 0:07:44.920 --> 0:07:50.080 since then either omit pronouns altogether or use the party's 0:07:50.360 --> 0:07:54.040 pronoun it's consistent with their gender identity. But still, you know, 0:07:54.120 --> 0:07:56.679 some courts don't, which takes us back to that Eastern 0:07:56.720 --> 0:08:00.400 District of Wisconsin decision where the judge basically said, you know, 0:08:00.440 --> 0:08:03.080 it's too much, too much trouble to use they in 0:08:03.120 --> 0:08:06.400 the singular to refer to this party despite their expression. 0:08:07.440 --> 0:08:11.280 So would you say the boss Stock decision did seem 0:08:11.320 --> 0:08:15.760 to influence most courts. That's really hard to say. Uh, 0:08:16.520 --> 0:08:21.240 most courts, I do think honor of parties requests. But 0:08:21.600 --> 0:08:25.360 you know, we're still seeing instances where where it's not happening, 0:08:25.920 --> 0:08:29.040 like in the Eastern District of was Content case, which 0:08:29.120 --> 0:08:31.920 is you know, decided a little over a year after 0:08:32.120 --> 0:08:36.720 Bostock and where the courts declined to use the party's 0:08:36.720 --> 0:08:41.840 request pronouns. We're still seeing it after Bostock. The Equal 0:08:41.840 --> 0:08:47.840 Employment Opportunity Commission released new guidance just explain that. So 0:08:47.880 --> 0:08:51.880 the agency commemorated the one Your Anniversary Boss Stok in 0:08:51.960 --> 0:08:56.040 June by releasing guid so so Boss Stock, just by 0:08:56.080 --> 0:08:59.439 way of a reminder held for the first time, the 0:08:59.520 --> 0:09:05.200 titles EVAN applies discrimination against homosexual and transgendered people. So 0:09:05.360 --> 0:09:07.960 they're you know, that being sort of a new principle. 0:09:08.120 --> 0:09:10.920 There wasn't a ton of guidance out about it yet, 0:09:11.640 --> 0:09:15.679 So the e o C to address that in June reiterated, 0:09:15.800 --> 0:09:20.200 among other things, that unlawful harassment can include intentionally calling 0:09:20.240 --> 0:09:23.680 someone by the wrong pronoun And they weren't They're not 0:09:23.760 --> 0:09:28.240 referring to sort of accidental or unintentionally doing it. They're 0:09:28.280 --> 0:09:34.319 talking about repeated and an intentional mis gendering. So it's 0:09:34.400 --> 0:09:38.880 something that they've recognized and constitute harassment. Thanks for being 0:09:38.960 --> 0:09:43.000 the Bloomberg Laws Show. Holly, that's Holly Barker, Bloomberg Laws 0:09:43.040 --> 0:09:48.640 Senior legal Reporter. President Joe Biden has selected Elizabeth pre 0:09:48.760 --> 0:09:52.080 Lagger to become the next Solicitor General of the United States. 0:09:52.400 --> 0:09:54.840 Free Lagger is a veteran appellate lawyer who has been 0:09:54.840 --> 0:09:59.360 Acting Solicitor General since January. Join me as Kimberly Strawberry 0:09:59.480 --> 0:10:03.839 Robinson Bloomberg Law Supreme Court reporter. So tell us about 0:10:03.920 --> 0:10:08.200 the importance of the role of the Solicitor General. Well, sure, 0:10:08.280 --> 0:10:11.680 So the Solicitor General, although it's an office that really 0:10:11.760 --> 0:10:15.920 is sort of unknown outside of elite appellant circles, it's 0:10:15.960 --> 0:10:18.880 actually the number four position within the d o J. 0:10:19.160 --> 0:10:23.000 And so not only is it the federal government top 0:10:23.120 --> 0:10:26.880 lawyer at the Supreme Court, but it really oversees all 0:10:27.120 --> 0:10:31.480 of the federal appellate litigation and really determines which cases 0:10:31.800 --> 0:10:34.839 the federal government is going to appeal up to the 0:10:34.840 --> 0:10:37.720 appellate courts and perhaps eventually to the Supreme Court. So 0:10:37.720 --> 0:10:41.040 it's a very powerful office. Uh, and certainly one that 0:10:41.240 --> 0:10:44.640 I'm surprised to see having not been filled for so long. 0:10:45.520 --> 0:10:48.400 Is this the longest that the solicitor general spot has 0:10:48.440 --> 0:10:52.199 been left open with an acting solicito general. Certainly, it's 0:10:52.320 --> 0:10:55.920 the longest in modern times and has really been unprecedented 0:10:56.080 --> 0:10:59.720 in the last several decades. Listeners may remember that under 0:10:59.720 --> 0:11:02.800 the Ump administration there was some grumbling that it was 0:11:02.880 --> 0:11:05.760 taking that administration quite a long time to still the 0:11:05.800 --> 0:11:08.680 solicitor general spot as well, But even then we had 0:11:08.720 --> 0:11:12.200 a nominee in early March, and so not having a 0:11:12.240 --> 0:11:16.720 nominee until August is really quite interesting. And the solicitor 0:11:16.840 --> 0:11:20.200 General that position has to be confirmed by the Senate, 0:11:20.679 --> 0:11:22.840 that's right, This is one that has to be confirmed 0:11:22.880 --> 0:11:25.680 by the Senate. So even though the White House announced 0:11:25.679 --> 0:11:28.800 its intention to have pre Lager be the nominee, we 0:11:28.920 --> 0:11:32.319 still don't have word on when her confirmation hearings might be. 0:11:32.760 --> 0:11:35.480 Although you know, the office is in pretty good hands 0:11:35.520 --> 0:11:37.560 until that time. There are a lot of career deputies 0:11:37.600 --> 0:11:40.800 there that have been there some since the seventies and nineties, 0:11:40.920 --> 0:11:43.440 so there's a lot of institutional knowledge. While we wait 0:11:43.520 --> 0:11:45.240 to see whether or not pre Lagger is going to 0:11:45.320 --> 0:11:50.640 be confirmed. So tell us about Elizabeth pre Lagger. Sure, Well, 0:11:50.640 --> 0:11:52.679 she's a long time d o J attorney. She had 0:11:52.720 --> 0:11:56.520 previously been an assistant in the Solicitor General's office, and 0:11:56.520 --> 0:11:59.320 then I argued some cases in front of the U s. 0:11:59.320 --> 0:12:02.360 Supreme Corps. And then she was briefly detailed to the 0:12:02.440 --> 0:12:07.480 Mueller investigation investigating potential Russian interference in the twenty sixteen election. 0:12:07.920 --> 0:12:11.600 That's likely because she speaks fluent Russian. After that and 0:12:11.760 --> 0:12:13.400 before she went into the d O day she was 0:12:13.400 --> 0:12:15.640 in private practice. But she is one of the few 0:12:15.920 --> 0:12:19.480 female attorneys who has argued regularly in front of the 0:12:19.520 --> 0:12:22.800 Supreme Court, and she's done so on behalf of the 0:12:22.800 --> 0:12:25.640 Biden administration a couple of times since taking on the 0:12:25.679 --> 0:12:29.600 acting SG role in in late January. And she clerk 0:12:29.679 --> 0:12:33.360 for Merrick Garland and also for the first female Solicitor 0:12:33.440 --> 0:12:36.840 General who is now a Supreme Court Justice, Elena Kagan. 0:12:37.640 --> 0:12:39.920 That's right, So she has a pretty impressive background with 0:12:40.080 --> 0:12:43.000 guard to clerkships. Not only did she clerk for now 0:12:43.040 --> 0:12:46.040 Attorney General Merrick Garland, which I can't help but think 0:12:46.160 --> 0:12:48.880 helped her prospects of getting this little for their general. No, 0:12:49.360 --> 0:12:52.720 but She also clerked for two Supreme Court Justices, Ruth 0:12:52.760 --> 0:12:55.880 Vader Ginsburg and then Elena Kagan. And you mentioned that 0:12:55.920 --> 0:13:00.000 Elena Kagan was the first female Solicitor General and Elizabeth 0:13:00.000 --> 0:13:02.720 Prologer would be just the second. She seems to have 0:13:02.960 --> 0:13:06.280 a lot of experience, she seems top notch. Why was 0:13:06.320 --> 0:13:10.200 there a delay in naming her as a nominee. Well, 0:13:10.200 --> 0:13:14.080 we've heard from sources, you know, former individuals but in 0:13:14.120 --> 0:13:17.160 the Solicitor General's office that there was some handling between 0:13:17.200 --> 0:13:20.240 the White House and the Department of Justice. As I mentioned, 0:13:20.320 --> 0:13:24.360 Plager but probably got some backing from Merrick Garland Um 0:13:24.440 --> 0:13:27.320 who has championed her career for a very long time. 0:13:27.760 --> 0:13:31.439 But the White House has really placed an emphasis on diversity, 0:13:31.559 --> 0:13:35.319 both racially and with professional experience. And we've been hearing 0:13:35.320 --> 0:13:38.640 that the White House was looking for either an attorney 0:13:38.640 --> 0:13:41.800 of color to leave the office or for somebody with 0:13:41.920 --> 0:13:45.200 criminal defense background, and there's a lot of pressure on 0:13:45.240 --> 0:13:48.240 the White House to kind of reverse the traditional pipeline 0:13:48.240 --> 0:13:50.880 that we see in these high up d o J. 0:13:51.080 --> 0:13:55.559 Positions that really rely on prosecutors, and we really haven't 0:13:55.600 --> 0:13:58.880 seen it happen yet. So the delay in naming a nominee, 0:13:58.880 --> 0:14:00.840 as you write, a p is to have worked in 0:14:00.880 --> 0:14:04.080 her favor. Well, that's right, because you know, as I said, 0:14:04.160 --> 0:14:06.720 she has been doing this job on an acting basis 0:14:07.120 --> 0:14:09.920 um for an unprecedented amount of time. We've seen her 0:14:10.080 --> 0:14:12.520 really take on some of the hardest jobs that a 0:14:12.600 --> 0:14:15.400 solicitor general has to do. That is taking over from 0:14:15.440 --> 0:14:19.840 a previous administration and deciding when the solicitor General's office 0:14:19.960 --> 0:14:23.960 is going to change positions from a previous administration. As 0:14:24.000 --> 0:14:26.120 you can imagine, there were some differences in the way 0:14:26.160 --> 0:14:29.280 of thinking about certain cases between the Trump administration and 0:14:29.320 --> 0:14:33.000 the Biden administration, you know, and Elizabeth Prologer was at 0:14:33.040 --> 0:14:35.800 the front of deciding whether or not the federal government 0:14:35.880 --> 0:14:38.080 should you know, do a one eighty, or whether or 0:14:38.160 --> 0:14:40.400 not they should stick the course and maybe not take 0:14:40.440 --> 0:14:44.120 a hit to their institutional reputation. So she has less 0:14:44.120 --> 0:14:48.560 senior federal government experience than prior solicitor generals. Does that 0:14:48.640 --> 0:14:52.000 really make a difference, Well, you know, I guess we'll 0:14:52.040 --> 0:14:54.120 have to see whether or not it's something that comes 0:14:54.160 --> 0:14:57.200 up in her confirmation hearing. You know, the solicitor General's 0:14:57.240 --> 0:15:00.040 office has often been used as a stepping stone to 0:15:00.160 --> 0:15:03.240 the Supreme Court. We've already mentioned Elena Kagan, but of 0:15:03.280 --> 0:15:05.960 course you know third Good Marshal was another really high 0:15:05.960 --> 0:15:09.160 profile Solicitor General who eventually got the nod to be 0:15:09.280 --> 0:15:11.840 on the Supreme Court. I think this is something that's 0:15:11.880 --> 0:15:14.840 changing in the dynamic of the office. Going back to 0:15:15.200 --> 0:15:18.040 George Bush's Solita General Robert Bork, we actually saw him 0:15:18.080 --> 0:15:21.040 step down from the d C Circuit to take on 0:15:21.080 --> 0:15:24.520 the Solicitor general role of judge ship that's really considered 0:15:24.520 --> 0:15:27.120 to be on the second most important court of the country. 0:15:27.400 --> 0:15:31.360 Um So, now we see, particularly with President Trump's nominee, 0:15:31.400 --> 0:15:34.440 that those kinds of credentials are not being required, and 0:15:34.480 --> 0:15:37.080 we'll see if that's something that continues with pur Lager 0:15:37.160 --> 0:15:40.480 and beyond. So, Kimberly, the White House had to make 0:15:40.520 --> 0:15:45.840 a decision because of a law. Tell us about that law, right, So, 0:15:45.960 --> 0:15:48.600 this is a law that was intended to really prevent 0:15:48.760 --> 0:15:52.520 and runs around the sentence advice and consent role, where 0:15:52.760 --> 0:15:55.200 you know, presidents would just name someone an acting role 0:15:55.240 --> 0:15:58.720 and lead them there for years, perhaps you know, many 0:15:58.800 --> 0:16:02.000 years spanning their whole had been illustration. And so under 0:16:02.040 --> 0:16:05.600 this law, the d o J has only so long 0:16:05.680 --> 0:16:08.320 that it can have somebody work on an acting basis 0:16:08.360 --> 0:16:12.000 before you know, they need to have somebody up for nomination, 0:16:12.240 --> 0:16:16.400 and that timeline runs out in November. Now, once Elizabeth 0:16:16.680 --> 0:16:20.120 Prologger is formally nominated and her nomination is sent to 0:16:20.120 --> 0:16:24.280 the Senate, that timeline will move beyond. But it hasn't 0:16:24.280 --> 0:16:26.200 really happened that the d o J has been coming 0:16:26.240 --> 0:16:28.040 up on a timeline like this. As we talked, this 0:16:28.080 --> 0:16:33.000 has really been an unprecedented delay. Did Divide administration offer 0:16:33.400 --> 0:16:38.640 the job to California Supreme Court Justice Leandre Krueger, Well, 0:16:38.680 --> 0:16:41.440 that's something that we heard very early in the process, 0:16:41.640 --> 0:16:44.720 uh sometime in January that not only did the White 0:16:44.720 --> 0:16:48.760 House um offer her the nomination once, but twice and 0:16:48.920 --> 0:16:52.480 she declined. You know that that's something you know that 0:16:52.640 --> 0:16:54.800 isn't out of the realm to think that someone would 0:16:54.800 --> 0:16:58.800 step down from a prestigious place like a justice on 0:16:58.840 --> 0:17:01.880 the California's Court, because as I mentioned, you know, this 0:17:02.120 --> 0:17:05.399 is a stepping stone to the Supreme Court, and Leander 0:17:05.440 --> 0:17:08.040 Krueger is one of the leading candidates, one of the 0:17:08.119 --> 0:17:11.679 few leading candidates UM for the next opening on the 0:17:11.720 --> 0:17:15.400 Supreme Court. As we've talked about before, this Listener General's 0:17:15.440 --> 0:17:19.720 office has faced criticism for its lack of gender diversity. 0:17:20.200 --> 0:17:23.679 The Soldiery General's Office put forward sixty one minute argument 0:17:23.720 --> 0:17:27.760 in fifty eight cases compared with ten women. Are they 0:17:27.840 --> 0:17:33.119 working on gender diversity with prologer there? Now, that's something 0:17:33.160 --> 0:17:35.760 that you know, we've heard from the Biden administrations that 0:17:35.840 --> 0:17:38.800 they do want to have more diversity. You know. Not 0:17:38.920 --> 0:17:42.760 only is the number from last term concerning, but it's 0:17:42.840 --> 0:17:45.960 even more concerning because it's really seen as a driver 0:17:46.240 --> 0:17:50.479 of the total imbalance between men and female attorneys arguing 0:17:50.520 --> 0:17:53.080 at the Supreme Court. That's really because the Soldier of 0:17:53.119 --> 0:17:56.480 General's Office participates in so many of these oral arguments. 0:17:56.480 --> 0:17:59.359 They are in approximately two thirds of these cases. So 0:17:59.480 --> 0:18:02.600 if you have an Sg's office that isn't really well 0:18:02.680 --> 0:18:06.000 balanced and isn't diverse, you're not going to have you know, 0:18:06.080 --> 0:18:09.800 attorneys as a whole who are representative um of the 0:18:09.840 --> 0:18:12.800 country who are arguing at the court. There's also a 0:18:12.840 --> 0:18:17.640 problem with racial diversity as well, right, and that's probably 0:18:17.800 --> 0:18:21.720 even bigger are problem for the Solicitor General's Office than 0:18:22.520 --> 0:18:27.160 than the gender diversity and really diversity on so many 0:18:27.240 --> 0:18:30.080 levels as a problem in the office. You know, beyond 0:18:30.119 --> 0:18:33.359 just racial and gender diversity. There really is just one 0:18:33.680 --> 0:18:37.719 kind of typical professional pipeline um you know that we 0:18:37.760 --> 0:18:41.679 see traditionally to the Solicitor General's office. That is, you know, 0:18:41.720 --> 0:18:45.399 a Supreme Court clerkship, a prestigious job in you know, 0:18:45.480 --> 0:18:49.440 an appellate shop in Washington, and then you know some 0:18:49.560 --> 0:18:53.359 kind of prosecutor rule or siding with the federal government. 0:18:53.400 --> 0:18:55.639 And so that's something that Carlager is not going to 0:18:55.760 --> 0:18:58.440 offer a lot of diversity, and that the Biden administration 0:18:58.480 --> 0:19:01.240 will continue to be pressed on. This is not a 0:19:01.320 --> 0:19:03.600 job you know right out of law school. These are 0:19:03.720 --> 0:19:09.560 very experienced attorneys who are going for these jobs, that's right. 0:19:09.600 --> 0:19:13.240 These are typically people who have you know, several years 0:19:13.400 --> 0:19:17.359 um practicing in private practice that you know that's on 0:19:17.440 --> 0:19:20.560 top of these prestigious clerkships. You know, Prai Lauger is 0:19:20.600 --> 0:19:23.479 certainly not out of bounds with having you know, clerks 0:19:23.480 --> 0:19:26.520 for Americ Garland and then two Supreme Court justices. So 0:19:26.960 --> 0:19:29.960 it's definitely not something in entry level position, but they're 0:19:30.040 --> 0:19:34.520 really sought out positions within the federal government that you know, 0:19:34.600 --> 0:19:38.119 attorneys generally stay in for about five years before you know, 0:19:38.600 --> 0:19:41.800 moving out and allowing others to step into that prestigious role. 0:19:42.320 --> 0:19:46.280 And how big is the office? How many attorneys? Well, 0:19:46.280 --> 0:19:48.560 there's been some movement in the number of attorneys. There's 0:19:48.560 --> 0:19:52.879 approximately twenty to twenty three attorneys in the office, and 0:19:52.960 --> 0:19:56.520 those split between kind of temporary positions, these five year 0:19:56.560 --> 0:20:01.720 positions to career positions. I mentioned one of the deputies 0:20:01.800 --> 0:20:05.000 has been there since the nine seventies um and then 0:20:05.480 --> 0:20:09.119 also balanced with some political appointees. So not only is 0:20:09.160 --> 0:20:12.800 the Solicitor general political pointee, but also their principal deputy, 0:20:13.400 --> 0:20:16.040 which is the role that Prelauter is serving them now. 0:20:16.320 --> 0:20:19.280 So we're getting closer, not quite there yet to the 0:20:19.320 --> 0:20:22.080 first Funday in October. Let's talk about some of the 0:20:22.560 --> 0:20:29.320 high profile cases, starting with the abortion case. Right this uh, 0:20:29.480 --> 0:20:31.480 you know, this next term that's coming up is really 0:20:31.480 --> 0:20:34.840 going to be quite a test for you know, the 0:20:34.920 --> 0:20:39.119 Supreme Court. This abortion case is Dobbs versus Jackson Women's 0:20:39.119 --> 0:20:44.280 Health Organization, and it's a challenge to Mississippi's Gestational Age Act, 0:20:44.359 --> 0:20:48.680 which bans abortion after fifteen weeks. Now, the question formally 0:20:48.760 --> 0:20:52.080 presented to the justices here is about so called pre 0:20:52.200 --> 0:20:56.280 viability abortions. But the briefs from the party and from 0:20:56.440 --> 0:21:00.159 the supporting briefs from Amikus all really go after or 0:21:00.280 --> 0:21:02.920 Row versus Wade, and the right to have an abortion 0:21:03.040 --> 0:21:06.320 at all. Abortion remains one of the most contentious issues 0:21:06.440 --> 0:21:11.720 in this country. Another contentious issue is Second Amendment rights. 0:21:12.119 --> 0:21:15.919 Tell us about that case, that's right the case. The 0:21:15.920 --> 0:21:19.440 Supreme Court will also take up this very contentious issue 0:21:19.520 --> 0:21:23.919 in New York State Rights Rifle versus and Sorry, the 0:21:23.920 --> 0:21:26.280 Supreme Court will also take up this issue in New 0:21:26.320 --> 0:21:30.360 York State Rifle and Pistol Association versus Corelett. Now, this 0:21:30.440 --> 0:21:35.000 is a challenge just to New York's concealed carry permit process, 0:21:35.080 --> 0:21:38.879 and the question is really whether state legislatures can place 0:21:39.040 --> 0:21:42.399 limits um on a consumed carry permit or whether the 0:21:42.480 --> 0:21:46.800 Second Amendment uh limits what the state legislatures can do. 0:21:47.119 --> 0:21:51.120 And in particular, New York provides local authorities with quite 0:21:51.119 --> 0:21:54.159 a bit of disprestion when deciding whether or not to 0:21:54.200 --> 0:21:57.760 grant these permits. And that is what in the individual 0:21:57.800 --> 0:22:02.240 tier challenging that that kind of dis Russian violates the Constitution. 0:22:03.000 --> 0:22:07.080 And you have several justices on the Supreme Court, conservative 0:22:07.160 --> 0:22:12.000 justices who have wanted to take up a Second Amendment 0:22:12.040 --> 0:22:15.880 case because they haven't taken up one in about a decade. Right, 0:22:15.920 --> 0:22:19.200 we have seen kind of a minority of the conservative 0:22:19.240 --> 0:22:22.239 justices for a long time saying that, you know, there 0:22:22.280 --> 0:22:26.159 are questions that are left open, uh, since the Supreme 0:22:26.200 --> 0:22:30.480 Court really heard one of its landmark cases heller Um, 0:22:30.520 --> 0:22:33.479 deciding some Second Amendment issues, and that you know, federal 0:22:33.560 --> 0:22:36.840 lower federal courts don't really need guidance on these issues. 0:22:36.880 --> 0:22:39.800 But we've seen a majority of the justice saying that 0:22:39.880 --> 0:22:42.680 they didn't want to tackle the issue. They've been really 0:22:42.720 --> 0:22:46.320 denying cases that deal with these same issues, uh, for 0:22:46.400 --> 0:22:49.840 almost a decade, And it wasn't until we saw, you know, 0:22:50.400 --> 0:22:53.800 Justice Barrett come into the picture that we saw one 0:22:53.800 --> 0:22:56.879 of these cases actually get granted at the Supreme Court. 0:22:57.320 --> 0:23:01.119 So with these two issues alone, it seems like next 0:23:01.200 --> 0:23:04.400 term is going to be a lot more controversial then 0:23:04.480 --> 0:23:07.680 this term was. That's right. You know, if you look 0:23:07.720 --> 0:23:10.159 back at this last term, you kind of saw an 0:23:10.160 --> 0:23:13.560 effort by at least some of the justices to moderate 0:23:13.880 --> 0:23:16.439 some of the rulings to kind of not go as 0:23:16.520 --> 0:23:20.199 far as conservatives may have wanted them to go. But 0:23:20.520 --> 0:23:24.000 these cases are going to really be where the rubber 0:23:24.040 --> 0:23:26.320 meets the road. Are we going to see the conservative 0:23:26.359 --> 0:23:30.480 justices really moderate and kind of kind of uphold precedent, 0:23:30.600 --> 0:23:33.280 or are we going to see them go big on 0:23:33.520 --> 0:23:38.320 these two very controversial issues. Now, the marathon bomber case 0:23:39.240 --> 0:23:43.520 that's coming before the Supreme Court, what's the issue there? Right? 0:23:43.560 --> 0:23:47.399 So that is a really interesting case because, uh, you know, 0:23:47.640 --> 0:23:51.280 it is about these capital sentences that Joe Harris or 0:23:51.320 --> 0:23:57.240 not of actually got for his participation in the marathon bombing, 0:23:57.640 --> 0:24:00.880 but it doesn't actually deal with his guilt or the sense. Instead, 0:24:00.960 --> 0:24:03.320 the justices are going to look at some technical issues 0:24:04.080 --> 0:24:07.959 related to jury selection in the case and evidence that 0:24:08.040 --> 0:24:10.639 was used during the sentencing phase. But this is a 0:24:10.640 --> 0:24:13.800 really interesting case for the Solicitor General. Uh, you know, 0:24:13.840 --> 0:24:16.480 that being the topic that we started off with in 0:24:16.520 --> 0:24:20.119 that you know, the Biden administration or then candidate Biden 0:24:20.160 --> 0:24:23.760 really campaigned against the death penalty, and here we see 0:24:23.800 --> 0:24:27.600