1
00:00:03,200 --> 00:00:09,639
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio Today.

2
00:00:09,800 --> 00:00:14,360
Speaker 2: South Carolina Supreme Court reversed a decision made in January

3
00:00:14,720 --> 00:00:18,520
Speaker 2: and allowed the state's six week abortion ban to take effect.

4
00:00:18,880 --> 00:00:22,520
Speaker 2: Why the reversal, The only female justice who wrote the

5
00:00:22,640 --> 00:00:27,280
Speaker 2: January opinion retired, leaving an all male bench. As state

6
00:00:27,320 --> 00:00:31,360
Speaker 2: abortion bans multiply, the legal battle over the abortion drug

7
00:00:31,360 --> 00:00:35,760
Speaker 2: MIFA pristone becomes more important for access to abortion, and

8
00:00:35,840 --> 00:00:39,239
Speaker 2: the conservative Fifth Circuit has turned back the clock and

9
00:00:39,479 --> 00:00:43,920
Speaker 2: rolled back FDA regulations which made the drug more widely available.

10
00:00:44,320 --> 00:00:46,760
Speaker 2: The fight over the abortion pill will end at the

11
00:00:46,800 --> 00:00:50,720
Speaker 2: Supreme Court, and April order from the court effectively keeps

12
00:00:50,720 --> 00:00:54,680
Speaker 2: the existing MIFA pristone regulations in place until the High

13
00:00:54,760 --> 00:00:57,800
Speaker 2: Court rules again on the matter or refuses to hear.

14
00:00:57,680 --> 00:00:58,720
Speaker 1: The case on appeal.

15
00:00:59,240 --> 00:01:02,640
Speaker 2: White House Press Secretary Carene Jean Pierre says, the Biden

16
00:01:02,680 --> 00:01:06,760
Speaker 2: administration is prepared to fight to keep myth A pristone

17
00:01:06,880 --> 00:01:07,880
Speaker 2: readily available.

18
00:01:08,840 --> 00:01:12,440
Speaker 3: What we're saying is we're prepared for a long legal fight,

19
00:01:13,040 --> 00:01:15,479
Speaker 3: and that's the promise that we can make to millions

20
00:01:15,480 --> 00:01:16,840
Speaker 3: of women across the country. Right now.

21
00:01:17,080 --> 00:01:19,600
Speaker 2: My guest is Mary Ziegler, a professor at the UC

22
00:01:19,800 --> 00:01:23,480
Speaker 2: Davis School of Law. This was a divided ruling explain

23
00:01:23,520 --> 00:01:26,360
Speaker 2: what the Fifth Circuit did, So this is.

24
00:01:26,280 --> 00:01:28,760
Speaker 3: Obviously in the middle of litigation. So one thing to

25
00:01:28,800 --> 00:01:31,080
Speaker 3: be clear about at the outset is that the Fifth

26
00:01:31,080 --> 00:01:33,759
Speaker 3: Circuit did not actually change the situation on the ground.

27
00:01:33,880 --> 00:01:36,000
Speaker 3: So the US Supreme Court is issue to stay in

28
00:01:36,040 --> 00:01:39,600
Speaker 3: this case that happened last spring. That date basically freezes

29
00:01:39,640 --> 00:01:41,960
Speaker 3: the status quo with respect him if for pristone, as

30
00:01:42,000 --> 00:01:45,360
Speaker 3: the litigation probably continues on the merits to the Supreme Court.

31
00:01:45,560 --> 00:01:47,600
Speaker 3: But the Fifth Circuit was weighing in this time not

32
00:01:47,680 --> 00:01:50,080
Speaker 3: on whether to grant to stay, but on whether the

33
00:01:50,120 --> 00:01:53,480
Speaker 3: outcome should be similar when the case is resolved on

34
00:01:53,520 --> 00:01:57,800
Speaker 3: the merits. So the majority held that on the merits,

35
00:01:58,040 --> 00:02:01,040
Speaker 3: the FDA lacked the authority to change the rules on

36
00:02:01,080 --> 00:02:05,080
Speaker 3: methachristone in both twenty sixteen and twenty twenty one, so

37
00:02:05,200 --> 00:02:07,840
Speaker 3: they would have essentially turned the clock back to before

38
00:02:07,880 --> 00:02:12,160
Speaker 3: twenty sixteen and reimposed a lot of restrictions on methachristone.

39
00:02:12,320 --> 00:02:15,280
Speaker 3: We also had an opinion by Judge Hoe, concurring and

40
00:02:15,320 --> 00:02:18,080
Speaker 3: dissenting in part that would have gone even further in

41
00:02:18,160 --> 00:02:19,200
Speaker 3: a few different ways.

42
00:02:19,360 --> 00:02:22,800
Speaker 2: Yeah. So this was a very conservative panel of two

43
00:02:22,840 --> 00:02:27,640
Speaker 2: Trump appointees, one George W. Bush appointee and Judge Ho

44
00:02:27,840 --> 00:02:32,760
Speaker 2: if he wanted to invalidate the whole thing, the FDA approval, correct.

45
00:02:32,520 --> 00:02:34,880
Speaker 3: Yeah, I'm not sure any of the judges really thought

46
00:02:34,880 --> 00:02:37,960
Speaker 3: the FDA had the approval authority in two thousand. But

47
00:02:38,000 --> 00:02:40,840
Speaker 3: the majority simply thought that the plantiffs had brought the

48
00:02:40,880 --> 00:02:44,120
Speaker 3: case too late, that they didn't have any justification for

49
00:02:44,240 --> 00:02:46,919
Speaker 3: waiting as long as they did to challenge an approval

50
00:02:46,919 --> 00:02:49,080
Speaker 3: that came almost, you know, twenty five years ago. At

51
00:02:49,080 --> 00:02:51,519
Speaker 3: this point, Judge Hoe disagreed on that point and said

52
00:02:51,520 --> 00:02:54,160
Speaker 3: the FDA had never had the authority to approve mithopristone

53
00:02:54,200 --> 00:02:57,000
Speaker 3: in the first place. He also added a lot of

54
00:02:57,040 --> 00:03:00,799
Speaker 3: thoughts on the Federal Comstock Act, which the majority declined

55
00:03:00,840 --> 00:03:02,600
Speaker 3: really to discuss at any kind of length.

56
00:03:03,040 --> 00:03:06,720
Speaker 2: So, the FDA is the agency that approves drugs. Why

57
00:03:06,760 --> 00:03:09,200
Speaker 2: do they think that the FDA doesn't have authority to

58
00:03:09,280 --> 00:03:10,720
Speaker 2: approve MIFA pristone.

59
00:03:10,919 --> 00:03:15,000
Speaker 3: So the argument is that the FDA proceeded under Subpart H,

60
00:03:15,200 --> 00:03:18,840
Speaker 3: which is a regulation that allows for somewhat expedited approval

61
00:03:18,919 --> 00:03:22,240
Speaker 3: of drugs and the plaintiffs in this case, and ultimately

62
00:03:22,400 --> 00:03:26,720
Speaker 3: Judge Hoe believed that the subpart each authority wasn't appropriate because,

63
00:03:26,919 --> 00:03:30,079
Speaker 3: as they argued, pregnancy isn't a disease. Judge ho said,

64
00:03:30,080 --> 00:03:33,160
Speaker 3: it isn't a condition in the sense that Subpart EH means,

65
00:03:33,480 --> 00:03:36,240
Speaker 3: it's sort of a normal right of passage. And he

66
00:03:36,320 --> 00:03:40,200
Speaker 3: also added that as the plaintiffs did, that MYTHI pristone,

67
00:03:40,240 --> 00:03:44,280
Speaker 3: in their view, is not safer than the alternative methods

68
00:03:44,320 --> 00:03:47,000
Speaker 3: of abortions. So for both of those reasons, they argued,

69
00:03:47,200 --> 00:03:50,800
Speaker 3: Judge Hoke ultimately concluded that the FDA didn't have the

70
00:03:50,800 --> 00:03:53,000
Speaker 3: authority to approve MIA pristone in two thousand.

71
00:03:53,720 --> 00:03:57,160
Speaker 2: Did they have any scientific backing for saying that MiFi

72
00:03:57,240 --> 00:04:00,960
Speaker 2: pristone isn't safer than let's say, it's surgical abortion.

73
00:04:01,640 --> 00:04:03,920
Speaker 3: Not much, right, I mean, this is a case where

74
00:04:04,080 --> 00:04:07,840
Speaker 3: the majority's criticisms of the FDA were essentially that they

75
00:04:07,920 --> 00:04:10,760
Speaker 3: weren't thorough enough, not that they were wrong necessarily, but

76
00:04:10,800 --> 00:04:12,880
Speaker 3: that they could have gathered more evidence, or they should

77
00:04:12,880 --> 00:04:16,000
Speaker 3: have relied on different studies, or they didn't have essentially

78
00:04:16,040 --> 00:04:18,960
Speaker 3: holding the FDA to a higher standard than usually would

79
00:04:19,000 --> 00:04:22,240
Speaker 3: apply to drug approvals or lifting of restrictions. I think

80
00:04:22,320 --> 00:04:26,480
Speaker 3: Judge host concerns were more almost sort of linguistic, right

81
00:04:26,520 --> 00:04:29,440
Speaker 3: that if you don't think pregnancy is a disease, the

82
00:04:29,480 --> 00:04:33,039
Speaker 3: safety profile mythriystone becomes less important, right, because that's one

83
00:04:33,080 --> 00:04:37,279
Speaker 3: of the concerns that Judge Hoe really prioritized in his opinion.

84
00:04:37,520 --> 00:04:39,200
Speaker 3: I think this is an example where you know, the

85
00:04:39,240 --> 00:04:42,120
Speaker 3: science is getting either contested or ignored.

86
00:04:42,880 --> 00:04:46,000
Speaker 2: And just for those who are not familiar, tell us

87
00:04:46,080 --> 00:04:49,520
Speaker 2: about you know, the importance of mythi priss stone to

88
00:04:49,600 --> 00:04:51,200
Speaker 2: those seeking an abortion.

89
00:04:51,400 --> 00:04:54,159
Speaker 3: And methipriston is important in more than one way. It's

90
00:04:54,240 --> 00:04:56,279
Speaker 3: one of the drugs that's used in a majority of

91
00:04:56,320 --> 00:04:59,760
Speaker 3: abortions in the United States. Pill based abortions are also

92
00:04:59,800 --> 00:05:02,719
Speaker 3: in important from the standpoint of access in states where

93
00:05:02,720 --> 00:05:06,560
Speaker 3: abortion is criminal, because there are nonprofit organizations that are

94
00:05:06,560 --> 00:05:09,520
Speaker 3: willing to send abortion pills into states even if doing

95
00:05:09,560 --> 00:05:12,880
Speaker 3: so is criminal. Obviously, if those pills are not available,

96
00:05:12,880 --> 00:05:16,479
Speaker 3: it becomes much harder for nonprofits to circumvent those laws.

97
00:05:16,680 --> 00:05:20,120
Speaker 3: We've seen proposals for an alternative where myth of pristone

98
00:05:20,160 --> 00:05:23,719
Speaker 3: to become one available. The other drug in that protocol

99
00:05:23,800 --> 00:05:28,040
Speaker 3: is called misiprostal. So some providers are already preparing for

100
00:05:28,200 --> 00:05:32,800
Speaker 3: misiprostal only abortions, which are possible. They're not as effective.

101
00:05:33,080 --> 00:05:36,279
Speaker 3: They're safe, but they have more complications and they're less

102
00:05:36,320 --> 00:05:40,600
Speaker 3: effective than the current standard protocol. So that's the possibility

103
00:05:40,720 --> 00:05:43,320
Speaker 3: should things come out a certain way. When all is

104
00:05:43,360 --> 00:05:44,600
Speaker 3: said and done.

105
00:05:44,680 --> 00:05:47,440
Speaker 2: Let's just say, at the end of the road, this

106
00:05:47,560 --> 00:05:52,480
Speaker 2: goes against the FDA, Could the FDA just start another

107
00:05:52,600 --> 00:05:55,320
Speaker 2: process and improvem if a priystone, you know, through a

108
00:05:55,320 --> 00:05:56,320
Speaker 2: full process.

109
00:05:56,720 --> 00:05:59,880
Speaker 3: Yeah. Absolutely, that would be very time consuming. Even on

110
00:06:00,400 --> 00:06:03,560
Speaker 3: the fifth Circuit, if the majority's decision were to hold

111
00:06:03,560 --> 00:06:05,359
Speaker 3: that is the same myth of pristone didn't have to

112
00:06:05,400 --> 00:06:07,960
Speaker 3: be withdrawn and could be taken under the pre twenty

113
00:06:07,960 --> 00:06:10,839
Speaker 3: sixteen protocol. Even that would cause a lot of chaos

114
00:06:10,880 --> 00:06:13,280
Speaker 3: because it's not clear if all the existing MITHI pristone

115
00:06:13,279 --> 00:06:15,800
Speaker 3: would need to be relabeled, and also, you know, people

116
00:06:15,839 --> 00:06:18,840
Speaker 3: would have to make multiple in person visits to a physician.

117
00:06:19,160 --> 00:06:21,760
Speaker 3: The FDA couldn't theory reapprove MITHRA pristone. It's just that

118
00:06:22,000 --> 00:06:25,960
Speaker 3: that process, especially if it's not the accelerated process, would

119
00:06:26,000 --> 00:06:28,960
Speaker 3: be time consuming and also would be politically uncertain of course,

120
00:06:29,000 --> 00:06:33,240
Speaker 3: because we've seen you know, Republican presidential candidates signaling disapproval

121
00:06:33,240 --> 00:06:35,480
Speaker 3: of MITHI pristone. Then they might have an interest in

122
00:06:35,520 --> 00:06:38,720
Speaker 3: reshaping FDA to make that kind of approval process either

123
00:06:38,760 --> 00:06:39,960
Speaker 3: slower or impossible.

124
00:06:40,560 --> 00:06:43,799
Speaker 2: When the District judges ruling came out, you know, many

125
00:06:43,960 --> 00:06:47,360
Speaker 2: legal experts thought it wasn't in line with precedent. It

126
00:06:47,400 --> 00:06:50,240
Speaker 2: was sort of in left field. Maybe I shouldn't say

127
00:06:50,320 --> 00:06:53,599
Speaker 2: right field, because the judge is known for being anti

128
00:06:53,720 --> 00:06:58,800
Speaker 2: abortion and anti LGBTQ. It reminds me of the Obamacare decision,

129
00:06:58,800 --> 00:07:01,480
Speaker 2: where there was an outlier judge who made this ruling

130
00:07:01,560 --> 00:07:04,599
Speaker 2: and everyone thought that, okay, the Fifth Circuit will knock

131
00:07:04,640 --> 00:07:06,880
Speaker 2: it down, and then we ended up with years of

132
00:07:06,920 --> 00:07:09,239
Speaker 2: litigation over that judge's ruling.

133
00:07:10,120 --> 00:07:12,120
Speaker 3: Yeah, I mean, I think what we are seeing both

134
00:07:12,160 --> 00:07:14,760
Speaker 3: in Judge Matthew tasmerick u is the District judge ruling,

135
00:07:14,920 --> 00:07:17,280
Speaker 3: and honestly in Judge Hose ruling, which has struck others

136
00:07:17,360 --> 00:07:19,680
Speaker 3: as very extreme. It's kind of a shifting of the

137
00:07:19,720 --> 00:07:22,560
Speaker 3: Overton windows. So once a conservative judge steaks out a

138
00:07:22,560 --> 00:07:25,920
Speaker 3: position that in right field, as you said, instead of

139
00:07:25,960 --> 00:07:28,480
Speaker 3: other conservative judges saying that's a bridge too far, We're

140
00:07:28,480 --> 00:07:30,840
Speaker 3: not going to do that. Instead, we've seen them come

141
00:07:30,880 --> 00:07:34,000
Speaker 3: back with decisions that are also really sweeping and unusual,

142
00:07:34,120 --> 00:07:36,480
Speaker 3: but less so than the original right or less so

143
00:07:36,680 --> 00:07:38,960
Speaker 3: like contrast to Judge Hose ruling. And I think that

144
00:07:39,000 --> 00:07:42,160
Speaker 3: creates a new normal for the judiciary where conservative courts

145
00:07:42,160 --> 00:07:44,600
Speaker 3: are going to go further whether it comes to things

146
00:07:44,640 --> 00:07:47,840
Speaker 3: like standing or merits or abortion access, but they're going

147
00:07:47,880 --> 00:07:50,120
Speaker 3: to frame it as if they're not right because they're

148
00:07:50,120 --> 00:07:51,840
Speaker 3: not going as far as some of their colleagues.

149
00:07:52,240 --> 00:07:56,960
Speaker 2: And just to be clear, they're making these decisions when

150
00:07:56,960 --> 00:07:59,040
Speaker 2: the merits of the case haven't even been.

151
00:07:58,920 --> 00:08:02,760
Speaker 3: Litigated yet, right, I mean, especially on the original opinion

152
00:08:02,800 --> 00:08:05,840
Speaker 3: by Judge kas Merrick was just a stay ruling. So

153
00:08:06,080 --> 00:08:08,640
Speaker 3: there's a lot that can happen in these kinds of

154
00:08:08,720 --> 00:08:11,480
Speaker 3: situations where we don't have yet merits rulings. Then we

155
00:08:11,520 --> 00:08:14,040
Speaker 3: don't have The only guidance we have from the US

156
00:08:14,080 --> 00:08:17,880
Speaker 3: Supreme Court is that there's been a stay issue, right,

157
00:08:17,920 --> 00:08:20,400
Speaker 3: So the signs are not full steam ahead even from

158
00:08:20,440 --> 00:08:22,120
Speaker 3: the US Supreme Court, and yet this is still the

159
00:08:22,200 --> 00:08:23,200
Speaker 3: kind of outcome we'rece theme.

160
00:08:23,560 --> 00:08:25,840
Speaker 2: I was wondering that and I was wondering whether I

161
00:08:25,920 --> 00:08:29,960
Speaker 2: was reading too much into the Supreme Courts deciding to

162
00:08:30,040 --> 00:08:34,360
Speaker 2: keep mifor pristone fully available as the litigation plays out,

163
00:08:34,520 --> 00:08:37,880
Speaker 2: because it seemed like the Justices might be sending a message.

164
00:08:37,440 --> 00:08:39,760
Speaker 1: To the Fifth Circuit not to go out on a limb.

165
00:08:39,760 --> 00:08:43,040
Speaker 3: Again, Yeah, I mean, we don't know entirely, right, because

166
00:08:43,080 --> 00:08:45,200
Speaker 3: when the Supreme Court issues a stay like that, they

167
00:08:45,240 --> 00:08:48,680
Speaker 3: don't explain why. We don't know who voted, how beyond

168
00:08:49,080 --> 00:08:52,520
Speaker 3: the fact that some of the justices recorded the sense,

169
00:08:52,640 --> 00:08:56,160
Speaker 3: so they're just Justice Alito and Justice Thomas. Other than that,

170
00:08:56,280 --> 00:08:58,080
Speaker 3: we can just read between the lines. The one thing

171
00:08:58,160 --> 00:08:59,880
Speaker 3: we do know is that one of the factors in

172
00:09:00,000 --> 00:09:03,240
Speaker 3: granting estay is who's likely to prevail on the merits.

173
00:09:03,280 --> 00:09:06,120
Speaker 3: So the Supreme Court is thinking about that right, They

174
00:09:06,160 --> 00:09:08,560
Speaker 3: have to think about that in granting estay, and so

175
00:09:08,640 --> 00:09:11,080
Speaker 3: we can infer that at least as of last spring,

176
00:09:11,520 --> 00:09:13,559
Speaker 3: there were a majority of the justices who thought the

177
00:09:13,600 --> 00:09:16,000
Speaker 3: plaintiffs were ultimately going to loose this case.

178
00:09:16,679 --> 00:09:20,840
Speaker 2: This ruling would interfere with states where abortion is legal,

179
00:09:21,280 --> 00:09:24,480
Speaker 2: and Justice Brett Kavanaugh said the court had to be

180
00:09:24,559 --> 00:09:29,440
Speaker 2: scrupulously neutral since he's a pivotal vote on abortion.

181
00:09:29,640 --> 00:09:31,880
Speaker 1: How much depends on him sticking to that.

182
00:09:32,559 --> 00:09:34,640
Speaker 3: Yeah, I mean, I think that's part of what's going on.

183
00:09:34,679 --> 00:09:36,800
Speaker 3: I mean, I think honestly most of what will happen

184
00:09:36,800 --> 00:09:39,160
Speaker 3: in this case will depend on if the plaintiffs has standing,

185
00:09:39,240 --> 00:09:41,560
Speaker 3: because this is a case that, regardless of what you

186
00:09:41,559 --> 00:09:45,160
Speaker 3: think about the merits, just has very very weak procedurally.

187
00:09:45,640 --> 00:09:48,360
Speaker 3: So I think it's fairly easy for someone like Kavanaugh

188
00:09:48,400 --> 00:09:50,160
Speaker 3: who would be torn. I think, on the one hand,

189
00:09:50,160 --> 00:09:52,640
Speaker 3: between the fact that he probably is sympathetic to the

190
00:09:52,640 --> 00:09:55,320
Speaker 3: plaintiff's arguments and the fact that he said he was

191
00:09:55,360 --> 00:09:58,920
Speaker 3: going to remain neutral as the Constitution is in his

192
00:09:59,080 --> 00:10:01,440
Speaker 3: view on a version, he may not even need to

193
00:10:01,440 --> 00:10:04,280
Speaker 3: go there with this case because it is so procedurally defective,

194
00:10:04,280 --> 00:10:06,720
Speaker 3: it will be easy to just say, you know, sorry,

195
00:10:06,840 --> 00:10:09,440
Speaker 3: I can't really get into it because you people don't

196
00:10:09,480 --> 00:10:10,600
Speaker 3: have standing, and leave.

197
00:10:10,480 --> 00:10:13,040
Speaker 2: It at best, explain the standing issue as far as

198
00:10:13,080 --> 00:10:14,079
Speaker 2: the plaintiffs here.

199
00:10:14,360 --> 00:10:17,319
Speaker 3: Sure. So, the plaintiffs here are a group of anti

200
00:10:17,400 --> 00:10:20,439
Speaker 3: abortion doctors. They are in a group called the Alliance

201
00:10:20,480 --> 00:10:24,400
Speaker 3: for Hippocratic Medicine, and standing, as most people remember, sort

202
00:10:24,400 --> 00:10:26,520
Speaker 3: of has to do with whether you were actually injured

203
00:10:26,520 --> 00:10:28,480
Speaker 3: by a law, whether you have enough skin in the

204
00:10:28,520 --> 00:10:31,160
Speaker 3: game to be in court challenging it. And the problem

205
00:10:31,200 --> 00:10:34,040
Speaker 3: for these doctors essentially is that they're speculating that they're

206
00:10:34,080 --> 00:10:35,960
Speaker 3: going to have an injury in the future, and that

207
00:10:36,120 --> 00:10:39,080
Speaker 3: was ultimately the conclusion drawn by the Fifth Circuits. So essentially,

208
00:10:39,120 --> 00:10:41,760
Speaker 3: with the Circuits said, well, mith a pristone is a drug,

209
00:10:41,800 --> 00:10:44,840
Speaker 3: It's complication rate isn't zero. So some percentage of people

210
00:10:44,840 --> 00:10:47,440
Speaker 3: who take mitha pristone are going to have complications. Some

211
00:10:47,600 --> 00:10:50,320
Speaker 3: percentage of those people are going to go not to

212
00:10:50,360 --> 00:10:53,640
Speaker 3: their original provider but to the emergency room, and some

213
00:10:53,760 --> 00:10:55,760
Speaker 3: percentage of those people are going to end up in

214
00:10:55,760 --> 00:10:58,679
Speaker 3: front of these specific doctors as opposed to other doctors

215
00:10:58,679 --> 00:11:01,800
Speaker 3: who don't have objections to ortion in the same emergency room,

216
00:11:02,280 --> 00:11:03,920
Speaker 3: and assuming these places are even going to be in

217
00:11:03,920 --> 00:11:05,920
Speaker 3: the emergency room. So it's sort of in prints upon

218
00:11:06,000 --> 00:11:09,360
Speaker 3: inference upon infernce, a lot of which aren't really very convincing.

219
00:11:09,640 --> 00:11:13,439
Speaker 3: So ordinarily, especially conservative judges are much more demanding than

220
00:11:13,440 --> 00:11:17,320
Speaker 3: that when finding standing. So most people are speculating that

221
00:11:17,360 --> 00:11:20,120
Speaker 3: there reason the Supreme Court granted this stay was just

222
00:11:20,160 --> 00:11:22,960
Speaker 3: because that case for standing is really hard to make

223
00:11:23,040 --> 00:11:24,400
Speaker 3: with this straight face, and.

224
00:11:24,400 --> 00:11:27,400
Speaker 2: I assume the pharmaceutical industry would be up in arms

225
00:11:27,400 --> 00:11:30,760
Speaker 2: because the court would be interfering with the FDA approval

226
00:11:31,600 --> 00:11:32,280
Speaker 2: of a drug.

227
00:11:32,920 --> 00:11:35,160
Speaker 3: Yeah, and also opening the door, by the way, to

228
00:11:35,440 --> 00:11:38,800
Speaker 3: a lot of lawsuits about drug approval because the argument

229
00:11:38,840 --> 00:11:41,959
Speaker 3: that I just made about standing, you know, mythipristone doesn't

230
00:11:42,000 --> 00:11:44,720
Speaker 3: have a very high complication rate. The New York Times

231
00:11:44,760 --> 00:11:47,000
Speaker 3: reviewed I think over one hundred studies on the drug

232
00:11:47,080 --> 00:11:50,120
Speaker 3: and found the complication rate was aboutzero point three percent.

233
00:11:50,559 --> 00:11:53,280
Speaker 3: So if the standard is any drug with a complication

234
00:11:53,440 --> 00:11:57,199
Speaker 3: rate you know, around what mythipristones is or higher, it's

235
00:11:57,240 --> 00:12:00,679
Speaker 3: hard to see how you couldn't have acted. This group's

236
00:12:00,840 --> 00:12:02,560
Speaker 3: challenging the approval of any drug.

237
00:12:03,080 --> 00:12:07,400
Speaker 2: How would they enforce a ban on MIFA pristone being

238
00:12:07,480 --> 00:12:11,520
Speaker 2: sent through the mail If organizations in blue states where

239
00:12:11,520 --> 00:12:17,239
Speaker 2: abortion is legal decide to, you know, send out MIFA pristone.

240
00:12:16,600 --> 00:12:20,440
Speaker 3: Well, we're the court to ultimately conclude that the FDA

241
00:12:21,320 --> 00:12:25,199
Speaker 3: didn't have the authority to approve myth a pristone, or alternatively,

242
00:12:25,280 --> 00:12:28,440
Speaker 3: that it violates the Federal Comstock Act for the FDA

243
00:12:28,559 --> 00:12:31,319
Speaker 3: to mail myth apristone, then it would really come down

244
00:12:31,360 --> 00:12:34,319
Speaker 3: to federal law enforcement enforcing it. So the FDA itself

245
00:12:34,440 --> 00:12:38,600
Speaker 3: has enforcement authority and could theoretically prosecute people in blue

246
00:12:38,640 --> 00:12:42,599
Speaker 3: states for continuing to mail a drug that was unapproved.

247
00:12:42,920 --> 00:12:45,679
Speaker 3: Were the Comstock Act argument to be vindicated and you

248
00:12:45,840 --> 00:12:48,400
Speaker 3: had a Republican in the White House, the DOJ could

249
00:12:48,440 --> 00:12:50,920
Speaker 3: do the same. So I think the common denominator there

250
00:12:51,000 --> 00:12:53,400
Speaker 3: you're seeing is a lot depends on who's in the

251
00:12:53,440 --> 00:12:55,840
Speaker 3: White House. And that's one of, you know, my great

252
00:12:55,920 --> 00:12:58,360
Speaker 3: frustrations as a watcher of all of this is that

253
00:12:58,440 --> 00:13:02,400
Speaker 3: we're not hearing republic candidates asked about that. We're not

254
00:13:02,520 --> 00:13:05,480
Speaker 3: hearing them asked about Comstock or FDA or the things

255
00:13:05,520 --> 00:13:09,319
Speaker 3: that interior Republican president could actually do. We're hearing hypotheticals

256
00:13:09,320 --> 00:13:12,440
Speaker 3: about bans at ten weeks, six weeks, you know, twelve weeks,

257
00:13:12,480 --> 00:13:14,040
Speaker 3: none of which are going to pass. But I think

258
00:13:14,120 --> 00:13:17,120
Speaker 3: we're seeing in this litigation and possibilities that really could

259
00:13:17,160 --> 00:13:19,600
Speaker 3: be transformative. We're a Republican to be in office.

260
00:13:19,960 --> 00:13:21,480
Speaker 1: Let's start to the states for a moment.

261
00:13:21,840 --> 00:13:24,880
Speaker 2: These fights over abortion are going on in both state

262
00:13:25,120 --> 00:13:29,720
Speaker 2: and federal courts. What's the difference for those bringing these lawsuits.

263
00:13:30,160 --> 00:13:32,240
Speaker 3: I think we've seen a deliberate attempt on the part

264
00:13:32,280 --> 00:13:35,719
Speaker 3: of abortion rights supporters to focus on state court and

265
00:13:35,880 --> 00:13:40,240
Speaker 3: challenging state bans, in part because state constitutional traditions could

266
00:13:40,280 --> 00:13:43,480
Speaker 3: be more expansive than the federal law, and because you know,

267
00:13:43,600 --> 00:13:46,520
Speaker 3: the conservative Supreme Court is unlikely to be sympathetic to

268
00:13:46,679 --> 00:13:51,040
Speaker 3: arguments that abortion bans are unconstitutional. Conversely, we've seen other

269
00:13:51,160 --> 00:13:54,120
Speaker 3: efforts by conservative lawyers to bring things into federal court

270
00:13:54,200 --> 00:13:55,800
Speaker 3: on the Comstock Act, which is a part of the

271
00:13:55,840 --> 00:13:58,240
Speaker 3: Smith of Pristone case, is also part of a whole

272
00:13:58,280 --> 00:14:01,760
Speaker 3: bunch of other cases actually coming from blue states, where

273
00:14:01,760 --> 00:14:06,000
Speaker 3: we've seen conservative lawyers fighting for local laws banning abortion

274
00:14:06,360 --> 00:14:09,120
Speaker 3: and saying that the state, the blue state, has to

275
00:14:09,200 --> 00:14:12,480
Speaker 3: comply with federal law, namely the Comstock Act. So we're

276
00:14:12,520 --> 00:14:14,920
Speaker 3: seeing I think, a kind of chess match in terms

277
00:14:14,960 --> 00:14:16,880
Speaker 3: of which court, which movement wants to.

278
00:14:16,920 --> 00:14:21,320
Speaker 1: Be in wichapel at. State courts have ruled on abortion.

279
00:14:22,080 --> 00:14:24,880
Speaker 3: So we've heard from the Idaho Supreme Court to South

280
00:14:24,960 --> 00:14:29,840
Speaker 3: Carolina Supreme Court, the Oklahoma Supreme Court. There's litigation pending

281
00:14:30,560 --> 00:14:33,400
Speaker 3: in other state supreme courts. We've also heard from state

282
00:14:33,480 --> 00:14:36,160
Speaker 3: supreme courts that haven't changed their minds, like the Montana

283
00:14:36,240 --> 00:14:39,480
Speaker 3: Supreme Court, and we have litigation pending in any number

284
00:14:39,520 --> 00:14:43,040
Speaker 3: of places as well, Utah, Iowa. So this is a

285
00:14:43,200 --> 00:14:46,920
Speaker 3: very active issue in state supreme courts, and we've seen,

286
00:14:47,800 --> 00:14:50,760
Speaker 3: you know, mixed results, but I would say surprisingly good

287
00:14:50,840 --> 00:14:54,320
Speaker 3: results for abortion rights supporters, given that almost all of

288
00:14:54,360 --> 00:14:57,000
Speaker 3: the courts where this litigation is happening are quite conservative.

289
00:14:57,720 --> 00:15:00,920
Speaker 2: Even in states like Kansas and Kentucky where there was

290
00:15:00,960 --> 00:15:04,400
Speaker 2: a lot of hoop law because the voters defeated ballot

291
00:15:04,520 --> 00:15:07,360
Speaker 2: questions that would have found no right to abortion in

292
00:15:07,440 --> 00:15:11,320
Speaker 2: the state constitution. But even in those states, the bands

293
00:15:11,360 --> 00:15:14,600
Speaker 2: on abortion are still in place, right, Yeah, Well, and.

294
00:15:14,800 --> 00:15:18,160
Speaker 3: So there's been I think in those ballot initiative states

295
00:15:18,280 --> 00:15:21,440
Speaker 3: there's often been. So Kansas doesn't have a ban. Kentucky's

296
00:15:21,520 --> 00:15:23,960
Speaker 3: vote was a little bit different because Kentucky was voting

297
00:15:24,480 --> 00:15:28,080
Speaker 3: not to declare that the state constitution had no abortion rights. Essentially,

298
00:15:28,200 --> 00:15:30,160
Speaker 3: Kentucky voters were saying, we're going to leave it up

299
00:15:30,200 --> 00:15:32,240
Speaker 3: to our Supreme Court to figure out, we're not going

300
00:15:32,320 --> 00:15:35,160
Speaker 3: to pre judge, so that state's abortion ban remains in place.

301
00:15:35,440 --> 00:15:38,960
Speaker 3: Other states like Michigan had abortion bans and voted for

302
00:15:39,040 --> 00:15:41,880
Speaker 3: ballot initiatives that wipe them away. So I think we're

303
00:15:41,960 --> 00:15:44,600
Speaker 3: seeing that it's not just whether or not you have

304
00:15:44,720 --> 00:15:48,240
Speaker 3: a ballot initiative, it's what ballot initiative you have. So,

305
00:15:49,120 --> 00:15:52,960
Speaker 3: for example, in Ohio, coming this November, voters are looking

306
00:15:53,080 --> 00:15:56,040
Speaker 3: at a substantive measure that would actually create abortion rights

307
00:15:56,080 --> 00:15:58,640
Speaker 3: and also likely not wipe.

308
00:15:58,680 --> 00:16:01,320
Speaker 4: The law off the books, but to its removal.

309
00:16:01,480 --> 00:16:03,720
Speaker 3: Likely by a court that strikes it down down the road.

310
00:16:04,080 --> 00:16:07,160
Speaker 2: I mean, this is why the legal landscape as far

311
00:16:07,240 --> 00:16:11,440
Speaker 2: as abortion is concerned, is so confusing to people. It's

312
00:16:11,560 --> 00:16:14,080
Speaker 2: just it's hard to keep up with it, even if

313
00:16:14,120 --> 00:16:14,600
Speaker 2: you're trying.

314
00:16:15,400 --> 00:16:17,680
Speaker 3: It is I mean, it's constantly changing, and I mean

315
00:16:17,720 --> 00:16:20,280
Speaker 3: I think that that's probably the most important thing people

316
00:16:20,400 --> 00:16:23,000
Speaker 3: can do when trying to keep up with this is

317
00:16:23,080 --> 00:16:26,560
Speaker 3: to realize that whatever snapshot you have is just that

318
00:16:26,760 --> 00:16:29,680
Speaker 3: it's not a forever thing. That the law can and

319
00:16:29,800 --> 00:16:34,040
Speaker 3: will change. And I think that makes it important for

320
00:16:34,120 --> 00:16:36,520
Speaker 3: people who really care about this issue to continue to,

321
00:16:36,840 --> 00:16:38,800
Speaker 3: you know, think about it when they're going to the polls,

322
00:16:38,800 --> 00:16:41,560
Speaker 3: in particular, because this is not a situation where something

323
00:16:41,640 --> 00:16:43,720
Speaker 3: will be resolved and you can simply put it on

324
00:16:43,800 --> 00:16:46,200
Speaker 3: the back burner and ignore it in pavor of other issues.

325
00:16:46,240 --> 00:16:47,440
Speaker 3: It's going to continue coming up.

326
00:16:47,840 --> 00:16:51,880
Speaker 2: Well, you certainly have an encyclopedic knowledge about abortion law,

327
00:16:52,120 --> 00:16:55,360
Speaker 2: and as always I appreciate your sharing it with us.

328
00:16:55,840 --> 00:16:58,720
Speaker 1: That's Professor Mary Ziegler of the UC Davis Law School.

329
00:17:00,640 --> 00:17:04,520
Speaker 3: Well, mister Reid, do we have an agreement on custody

330
00:17:04,720 --> 00:17:04,920
Speaker 3: or not?

331
00:17:05,600 --> 00:17:08,360
Speaker 2: No, I see.

332
00:17:09,800 --> 00:17:12,000
Speaker 3: In that case, there will be a custody hearing on

333
00:17:12,200 --> 00:17:14,360
Speaker 3: the nineteenth at nine am.

334
00:17:14,800 --> 00:17:16,040
Speaker 4: Court is adjourn.

335
00:17:17,680 --> 00:17:21,760
Speaker 2: Whether it's the comedy Liar Liar or the drama marriage Story,

336
00:17:22,320 --> 00:17:25,600
Speaker 2: movies about divorce have a lot of common themes, but

337
00:17:25,840 --> 00:17:28,679
Speaker 2: one theme that none of them have is a couple

338
00:17:29,040 --> 00:17:31,800
Speaker 2: not being able to get a divorce because of a

339
00:17:31,920 --> 00:17:35,800
Speaker 2: shortage of judges. But that's exactly the situation in New

340
00:17:35,920 --> 00:17:39,959
Speaker 2: Jersey where there's a backlog of nearly four thousand divorce cases,

341
00:17:40,440 --> 00:17:44,360
Speaker 2: delays of many years, and blocks on any divorce trials

342
00:17:44,400 --> 00:17:49,359
Speaker 2: in several counties, all because there aren't enough judges. Joining

343
00:17:49,400 --> 00:17:53,560
Speaker 2: me is Alex Ebert Bloomberg Laws senior correspondent who's investigated

344
00:17:53,640 --> 00:17:59,119
Speaker 2: this tell us generally about the backlog of divorce and

345
00:17:59,320 --> 00:18:01,639
Speaker 2: family law cases in New Jersey.

346
00:18:02,280 --> 00:18:04,760
Speaker 4: So The backlog of cases in New Jersey ebbs and

347
00:18:04,840 --> 00:18:08,120
Speaker 4: flows over the years because of its unique political process,

348
00:18:08,560 --> 00:18:11,560
Speaker 4: But right now there's a serious crunch throughout the state

349
00:18:11,960 --> 00:18:15,240
Speaker 4: in both divorce and family law cases. There are a

350
00:18:15,400 --> 00:18:20,520
Speaker 4: backlog of more than four seven hundred family law cases

351
00:18:20,880 --> 00:18:25,480
Speaker 4: in an additional four thousand divorce and separation proceedings that

352
00:18:25,600 --> 00:18:29,320
Speaker 4: are really really posing problems to family attorneys.

353
00:18:29,760 --> 00:18:34,120
Speaker 2: The state's chief Justice has stopped civil and matrimonial trials

354
00:18:34,240 --> 00:18:38,000
Speaker 2: in several counties, but are they moving ahead in other

355
00:18:38,160 --> 00:18:40,800
Speaker 2: counties or has it all come to a complete stop

356
00:18:41,359 --> 00:18:42,200
Speaker 2: barely so.

357
00:18:42,400 --> 00:18:45,399
Speaker 4: I've spoken with many attorneys in the state but are

358
00:18:45,600 --> 00:18:49,480
Speaker 4: just woefully sad about the situation. It's come to the

359
00:18:49,520 --> 00:18:52,760
Speaker 4: point where it's difficult to get any trial at all

360
00:18:52,920 --> 00:18:56,200
Speaker 4: moving forward in a contested divorce case. And it's because

361
00:18:56,560 --> 00:19:00,760
Speaker 4: there's so few judges to handle these matters that the

362
00:19:00,880 --> 00:19:03,520
Speaker 4: judges on the bench, no matter which count you're in,

363
00:19:04,040 --> 00:19:07,119
Speaker 4: have to prioritize the emergencies that come before them in

364
00:19:07,240 --> 00:19:11,480
Speaker 4: family law cases over these divorced and separation proceedings. And

365
00:19:11,640 --> 00:19:15,880
Speaker 4: so if it's someone an abusive relationship, or if it's

366
00:19:16,000 --> 00:19:19,200
Speaker 4: an emergency over something that might cause harm to a child,

367
00:19:19,800 --> 00:19:21,920
Speaker 4: then you're going to have that pop up and sort

368
00:19:21,920 --> 00:19:24,240
Speaker 4: of interfere with the ability to run a trial. Then

369
00:19:24,560 --> 00:19:27,920
Speaker 4: if you take that compounding issue over years of people

370
00:19:28,040 --> 00:19:30,760
Speaker 4: not being appointed to these judge ships, you just get

371
00:19:30,800 --> 00:19:34,000
Speaker 4: a backlog of so many cases it's impossible to get

372
00:19:34,040 --> 00:19:34,640
Speaker 4: anything done.

373
00:19:35,359 --> 00:19:38,800
Speaker 2: One lawyer told you it's like families are stuck in limbo.

374
00:19:39,240 --> 00:19:42,480
Speaker 2: Another that children are living in toxic environments.

375
00:19:43,280 --> 00:19:44,000
Speaker 3: Yeah, these are.

376
00:19:44,000 --> 00:19:47,880
Speaker 4: Really sad stories, June, and it can be anything from

377
00:19:48,200 --> 00:19:51,560
Speaker 4: you know, families where mom and dad are fighting, to

378
00:19:51,680 --> 00:19:55,760
Speaker 4: situations where a parent can't move their kid into a

379
00:19:55,840 --> 00:19:58,280
Speaker 4: school district because they can't get an order from a court.

380
00:19:58,800 --> 00:20:02,840
Speaker 4: Sometimes these issues written to the family structure completely. There's

381
00:20:03,040 --> 00:20:07,040
Speaker 4: a couple instances where folks are scared that one a

382
00:20:07,080 --> 00:20:10,399
Speaker 4: strange partner is going to take the passport of a

383
00:20:10,520 --> 00:20:13,840
Speaker 4: child and actually kidnap them out of the country, which

384
00:20:13,840 --> 00:20:15,880
Speaker 4: would make it very difficult to get the child back.

385
00:20:16,280 --> 00:20:19,000
Speaker 4: And since publishing this piece, I've actually had people reach

386
00:20:19,080 --> 00:20:22,240
Speaker 4: out to me with similar stories and it can be

387
00:20:22,359 --> 00:20:25,120
Speaker 4: really heartbreaking to hear what these families are going through.

388
00:20:25,760 --> 00:20:28,399
Speaker 2: So let's talk about the big question, why are there

389
00:20:28,600 --> 00:20:31,840
Speaker 2: so many judicial vacancies in New Jersey.

390
00:20:32,560 --> 00:20:34,959
Speaker 4: So there are a few factors, and I'll lay them

391
00:20:35,000 --> 00:20:38,480
Speaker 4: out for you, but the largest one is this unique

392
00:20:38,480 --> 00:20:42,720
Speaker 4: political process New Jersey has called senatorial currency. So we

393
00:20:42,840 --> 00:20:45,920
Speaker 4: know about the blue slip system in the federal court, right,

394
00:20:46,080 --> 00:20:50,800
Speaker 4: so home senators can refuse to allow the appointment of

395
00:20:50,920 --> 00:20:54,680
Speaker 4: a judge in their home state. The same thing applies

396
00:20:54,840 --> 00:20:58,320
Speaker 4: in New Jersey, but for the counties. But the strange,

397
00:20:58,520 --> 00:21:01,840
Speaker 4: unique thing about New Jersey is that there are often

398
00:21:02,040 --> 00:21:06,000
Speaker 4: more than one state senator that lives in a particular county,

399
00:21:06,480 --> 00:21:09,600
Speaker 4: and so these state senators can use this ability to

400
00:21:09,680 --> 00:21:12,840
Speaker 4: block a nomination to get something else out of the

401
00:21:12,960 --> 00:21:15,359
Speaker 4: governor's team or other senators.

402
00:21:16,440 --> 00:21:18,680
Speaker 1: So is this courtesy?

403
00:21:19,240 --> 00:21:21,560
Speaker 2: Is it part of any law? Is it part of

404
00:21:21,640 --> 00:21:25,240
Speaker 2: a regulation? Is it just a practice that people honor.

405
00:21:26,320 --> 00:21:29,440
Speaker 4: It is so fascinating when you raise that question with

406
00:21:29,600 --> 00:21:31,960
Speaker 4: people in the know. It's a mix of these things.

407
00:21:32,080 --> 00:21:32,199
Speaker 3: Right.

408
00:21:32,480 --> 00:21:35,400
Speaker 4: There's no law that it points to, so it's sort

409
00:21:35,440 --> 00:21:40,000
Speaker 4: of an unspoken agreement among the Senate and it's recognized

410
00:21:40,040 --> 00:21:42,800
Speaker 4: and respected by the rest of the state government. And

411
00:21:43,080 --> 00:21:46,119
Speaker 4: back in the nineties, there was a legal challenge that

412
00:21:46,320 --> 00:21:50,560
Speaker 4: was actually foisted forward by the Whitman administration the governor

413
00:21:50,600 --> 00:21:55,320
Speaker 4: at the time seeking to undo senatorial courtesy, and the

414
00:21:55,920 --> 00:21:59,480
Speaker 4: Supreme Court in New Jersey actually said it's fine. You know,

415
00:21:59,640 --> 00:22:03,040
Speaker 4: they approved of the process. And so it's gone from

416
00:22:03,160 --> 00:22:07,560
Speaker 4: this handshake agreement among the political system to now being

417
00:22:08,560 --> 00:22:12,240
Speaker 4: adopted and accepted throughout the state and is considered to

418
00:22:12,280 --> 00:22:15,399
Speaker 4: be part of the state's constitutional fabric and framework. And

419
00:22:15,840 --> 00:22:18,720
Speaker 4: it's fascinating because when you talk with people, they will

420
00:22:18,920 --> 00:22:21,080
Speaker 4: say that it's sort of like a force of nature.

421
00:22:21,280 --> 00:22:23,119
Speaker 4: There's not really anything you can do to get rid

422
00:22:23,160 --> 00:22:25,199
Speaker 4: of it, and so it's just working through it as

423
00:22:25,240 --> 00:22:27,520
Speaker 4: best as you can to get more judges on the bench.

424
00:22:28,359 --> 00:22:32,600
Speaker 2: If this dates back decades, why is it causing more

425
00:22:32,680 --> 00:22:37,200
Speaker 2: problems now? Why is it holding up more judicial appointments now?

426
00:22:37,800 --> 00:22:41,240
Speaker 4: That's a great question. So there's a couple facets to this.

427
00:22:41,520 --> 00:22:44,359
Speaker 4: The biggest and most important one is that the state

428
00:22:44,440 --> 00:22:47,679
Speaker 4: has a larger crunch on the dockets right now because

429
00:22:47,720 --> 00:22:50,600
Speaker 4: of the pandemic. You know, like every state, it took

430
00:22:50,680 --> 00:22:53,280
Speaker 4: New Jersey a while to get used to remote proceedings.

431
00:22:53,480 --> 00:22:55,520
Speaker 4: It's had to deal with all of the legal issues

432
00:22:55,560 --> 00:22:58,960
Speaker 4: around remote proceedings, and it's still getting.

433
00:22:58,760 --> 00:22:59,119
Speaker 3: Used to it.

434
00:22:59,280 --> 00:23:03,000
Speaker 4: You know we are in state litigation, but because of that,

435
00:23:03,720 --> 00:23:07,360
Speaker 4: there were more early retirements from judges as they were

436
00:23:07,520 --> 00:23:11,240
Speaker 4: slammed with more and more work. And these early retirements

437
00:23:11,320 --> 00:23:14,639
Speaker 4: build up because the state can't replace these judges fast

438
00:23:14,720 --> 00:23:18,560
Speaker 4: enough to deal with these burden backets, and so we've

439
00:23:18,600 --> 00:23:23,080
Speaker 4: seen more early retirements now, people taking retirement before the

440
00:23:23,160 --> 00:23:27,040
Speaker 4: state's mandatory retirement age of seventy because they're just overwhelmed

441
00:23:27,080 --> 00:23:27,720
Speaker 4: and overworked.

442
00:23:28,200 --> 00:23:30,680
Speaker 2: We live in a very partisan time in this country.

443
00:23:31,160 --> 00:23:33,240
Speaker 2: Is that also at play here?

444
00:23:34,359 --> 00:23:37,280
Speaker 4: Yes, there is an aspect of it that is partisans

445
00:23:37,520 --> 00:23:41,080
Speaker 4: in that there isn't so much that the governor's office

446
00:23:41,160 --> 00:23:44,080
Speaker 4: can do in order to put pressure on these senators.

447
00:23:44,520 --> 00:23:47,400
Speaker 4: There's just less accountability for the Senate than there used

448
00:23:47,440 --> 00:23:51,440
Speaker 4: to be. According to a Rutgers law professor, John Farmer,

449
00:23:51,600 --> 00:23:54,960
Speaker 4: who was actually in the Witman administration and was helping

450
00:23:55,040 --> 00:23:58,920
Speaker 4: with these nominations, he said that they would apply pressure

451
00:23:59,000 --> 00:24:02,840
Speaker 4: to a senator to the press, and hopefully the negative

452
00:24:03,240 --> 00:24:06,520
Speaker 4: attention on whatever that senator wanted the whold up the

453
00:24:06,640 --> 00:24:10,600
Speaker 4: nomination would eventually grind on that senator and the senator

454
00:24:10,640 --> 00:24:12,960
Speaker 4: would have to give in and allow the nomination to

455
00:24:13,040 --> 00:24:15,960
Speaker 4: go forward. Now, that's not the case. We're getting hold

456
00:24:16,040 --> 00:24:20,359
Speaker 4: ups from both Democrats and from Republicans because Farmer says

457
00:24:20,760 --> 00:24:23,840
Speaker 4: we're just less accountable now as a political system to

458
00:24:24,000 --> 00:24:25,560
Speaker 4: the people due to partisanship.

459
00:24:26,119 --> 00:24:29,560
Speaker 2: You spoke to a former family court judge tell us

460
00:24:29,760 --> 00:24:31,720
Speaker 2: about how she described her workload.

461
00:24:32,080 --> 00:24:35,800
Speaker 4: Judge Lisa Cristo, you know what a fascinating interview. She

462
00:24:35,960 --> 00:24:40,680
Speaker 4: described her workload as something that would terrify me. Constant

463
00:24:40,760 --> 00:24:45,000
Speaker 4: interruptions all the time, and an incredible workload where you

464
00:24:45,160 --> 00:24:48,080
Speaker 4: have to stay on point to get things done throughout

465
00:24:48,119 --> 00:24:50,480
Speaker 4: your day. She said that in the morning she would

466
00:24:50,520 --> 00:24:54,120
Speaker 4: handle about eight different family law cases, and then after

467
00:24:54,280 --> 00:24:57,440
Speaker 4: lunch she'd handle another eight family law cases. So we're

468
00:24:57,520 --> 00:25:00,480
Speaker 4: talking rapid succession here. You never know how alone they're

469
00:25:00,520 --> 00:25:03,600
Speaker 4: going to take. And in between she was constantly being

470
00:25:03,680 --> 00:25:07,920
Speaker 4: interrupted by emergencies on her docket from people that needed

471
00:25:07,960 --> 00:25:10,240
Speaker 4: to get out of a dangerous situation in their home

472
00:25:10,600 --> 00:25:13,320
Speaker 4: or needed to protect the child. Then on top of that,

473
00:25:13,640 --> 00:25:16,480
Speaker 4: every single night she was bringing home paperwork to prefare

474
00:25:16,560 --> 00:25:18,640
Speaker 4: for the next day. You know, she said that after

475
00:25:18,720 --> 00:25:21,240
Speaker 4: twenty years of doing it, she just couldn't believe that

476
00:25:21,320 --> 00:25:22,400
Speaker 4: she was able to get it done.

477
00:25:23,080 --> 00:25:26,919
Speaker 2: Let's talk about the spillover effect with other civil cases

478
00:25:27,320 --> 00:25:32,760
Speaker 2: where you have elderly people and others not able to

479
00:25:32,920 --> 00:25:36,200
Speaker 2: move forward with their cases because of the backlog.

480
00:25:37,280 --> 00:25:43,960
Speaker 4: Yeah, this is such a strange spillover problem. But a

481
00:25:44,000 --> 00:25:46,960
Speaker 4: lot of folks they might not realize that that trial

482
00:25:47,080 --> 00:25:51,959
Speaker 4: date is essential to building leverage to settle. So if

483
00:25:52,040 --> 00:25:54,440
Speaker 4: an attorney doesn't have a trial date and they're trying

484
00:25:54,480 --> 00:25:57,440
Speaker 4: to get an insurance company to pay up for a

485
00:25:57,560 --> 00:26:00,760
Speaker 4: claim for an injured person, they're not going to be

486
00:26:00,800 --> 00:26:03,359
Speaker 4: able to do it because the insurance company has the

487
00:26:03,480 --> 00:26:06,200
Speaker 4: incentive of just kicking the can down the road. And

488
00:26:06,320 --> 00:26:08,520
Speaker 4: that's not a bad thing. It's the insurance company is

489
00:26:08,560 --> 00:26:10,720
Speaker 4: looking out for its bottom line and if there's no

490
00:26:10,920 --> 00:26:13,240
Speaker 4: need to pay money now, why pay it. But that

491
00:26:13,440 --> 00:26:16,320
Speaker 4: means that injured folks are in such a poor situation

492
00:26:16,600 --> 00:26:19,480
Speaker 4: because they're not able to work anymore, or because they

493
00:26:19,560 --> 00:26:22,639
Speaker 4: really need the money that they're now taking out what

494
00:26:22,880 --> 00:26:27,040
Speaker 4: someone considered predatory loans amounts with interest in excess of

495
00:26:27,119 --> 00:26:31,080
Speaker 4: thirty percent that are taken out on their future earnings

496
00:26:31,160 --> 00:26:35,200
Speaker 4: from the settlement, and so over time, if these trial

497
00:26:35,320 --> 00:26:40,159
Speaker 4: courts cannot set dates for these cases, that interest builds

498
00:26:40,240 --> 00:26:42,320
Speaker 4: up and builds up, and it eats into their settlements

499
00:26:42,400 --> 00:26:43,480
Speaker 4: until they just disappear.

500
00:26:44,280 --> 00:26:47,720
Speaker 2: So a Rutgers law professor, John Farmer told you that

501
00:26:48,119 --> 00:26:52,000
Speaker 2: this courtesy appointment system, it has the potential to really

502
00:26:52,240 --> 00:26:56,479
Speaker 2: undermine the public's confidence in the judiciary. What do they

503
00:26:56,560 --> 00:26:59,560
Speaker 2: say on the other side of the issue, You know,

504
00:26:59,640 --> 00:27:02,200
Speaker 2: what's a reason for keeping this in place.

505
00:27:02,760 --> 00:27:06,480
Speaker 4: The reason for keeping this in place is to create

506
00:27:06,680 --> 00:27:11,040
Speaker 4: a bargaining and leveraging system for the Senate. For decades,

507
00:27:11,160 --> 00:27:14,000
Speaker 4: it has been a way to get other nominations through,

508
00:27:14,560 --> 00:27:18,280
Speaker 4: and so you will see a boatload of nominations go

509
00:27:18,480 --> 00:27:20,879
Speaker 4: through at the same time that one of these judicial

510
00:27:20,960 --> 00:27:24,399
Speaker 4: nominations go through. And it's because the Senators use this

511
00:27:24,560 --> 00:27:28,720
Speaker 4: as a prerogative to basically move the gears of state government.

512
00:27:29,240 --> 00:27:32,879
Speaker 4: Without this system, you would have a much more powerful

513
00:27:33,280 --> 00:27:37,000
Speaker 4: governor than you currently do. Right now, the Senate holds

514
00:27:37,080 --> 00:27:40,760
Speaker 4: the cards and because of that, both Republicans and Democrats

515
00:27:40,840 --> 00:27:44,200
Speaker 4: that have courtesy power, they can use that to leverage

516
00:27:44,520 --> 00:27:47,359
Speaker 4: different policies that they want need, and they can also

517
00:27:47,520 --> 00:27:51,480
Speaker 4: use it to improve the quality of the judiciary. You'll

518
00:27:51,560 --> 00:27:56,280
Speaker 4: hear Senator John Bramnick, who's the top Republican on the

519
00:27:56,320 --> 00:28:00,280
Speaker 4: Senate Judiciary as well as other senators, say that this

520
00:28:00,520 --> 00:28:04,760
Speaker 4: process where you get so much scrutiny from senators, improves

521
00:28:04,840 --> 00:28:07,960
Speaker 4: the judiciary New Jersey, and I think that the state

522
00:28:08,040 --> 00:28:10,399
Speaker 4: bar leaders would agree that. I didn't speak with a

523
00:28:10,440 --> 00:28:14,080
Speaker 4: single attorney who said that the process led for worst judges.

524
00:28:14,200 --> 00:28:16,639
Speaker 4: They all say the judges are pretty great. It's just

525
00:28:16,680 --> 00:28:17,199
Speaker 4: there aren't that.

526
00:28:17,320 --> 00:28:19,959
Speaker 2: Many of them, and it could take as many as

527
00:28:20,040 --> 00:28:23,880
Speaker 2: five senators to agree on a judge before an appointment

528
00:28:23,920 --> 00:28:24,480
Speaker 2: goes forward.

529
00:28:25,520 --> 00:28:29,080
Speaker 4: It can yes, and so the process can be arduous,

530
00:28:29,240 --> 00:28:31,399
Speaker 4: it can be long, and it can be a single

531
00:28:31,520 --> 00:28:35,200
Speaker 4: senator that holds it up. You could have four senators

532
00:28:35,359 --> 00:28:38,760
Speaker 4: that all sign off, and then one person, because of

533
00:28:38,840 --> 00:28:42,920
Speaker 4: a policy, because of a personal beef, decides this person can't.

534
00:28:42,720 --> 00:28:43,360
Speaker 1: Sit on the bench.

535
00:28:44,360 --> 00:28:47,400
Speaker 2: In light of this shortage of judges, why are the

536
00:28:47,560 --> 00:28:51,920
Speaker 2: governor and the state Senate leader touting the number of

537
00:28:52,080 --> 00:28:53,320
Speaker 2: judges they've appointed?

538
00:28:54,200 --> 00:28:58,000
Speaker 4: So the political system responded to our request for comment,

539
00:28:58,120 --> 00:29:01,640
Speaker 4: both the governor and Senate leadership by pointing to the

540
00:29:01,760 --> 00:29:04,920
Speaker 4: results they've gotten in the past. They say correctly that

541
00:29:05,320 --> 00:29:08,080
Speaker 4: last year the numbers were higher and the amount of

542
00:29:08,160 --> 00:29:13,320
Speaker 4: vacancies was greater, and they've done yeomen's work to appoint

543
00:29:13,880 --> 00:29:16,880
Speaker 4: judges and get the benches filled, but it's just not

544
00:29:17,200 --> 00:29:21,280
Speaker 4: keeping up with the state's needs. So Governor Murphy and

545
00:29:21,360 --> 00:29:24,320
Speaker 4: sent a president to Kari. They're in this pest situation

546
00:29:24,600 --> 00:29:28,320
Speaker 4: where the legislature isn't present in Trenton right now. They're

547
00:29:28,400 --> 00:29:31,720
Speaker 4: out campaigning and it's a part time legislature anyway, so

548
00:29:31,960 --> 00:29:34,920
Speaker 4: getting folks into the room to hammer out these deals

549
00:29:35,360 --> 00:29:38,640
Speaker 4: and get pass any blockages and the courtesy process is difficult.

550
00:29:39,120 --> 00:29:41,640
Speaker 4: So they point to their success in getting people on

551
00:29:41,720 --> 00:29:45,520
Speaker 4: the bench, whereas state bar leaders and attorneys that are

552
00:29:45,560 --> 00:29:47,880
Speaker 4: in the trenches say that it's just not enough.

553
00:29:48,600 --> 00:29:50,760
Speaker 1: So what's the solution. Is there a solution?

554
00:29:51,520 --> 00:29:56,440
Speaker 4: Throughout our conversations with the attorneys and law professors and

555
00:29:56,720 --> 00:30:00,720
Speaker 4: the administration, what always puzzled me was how is this

556
00:30:00,840 --> 00:30:04,479
Speaker 4: going to get fixed? And I didn't hear a single

557
00:30:05,120 --> 00:30:08,520
Speaker 4: thought from anyone that it could. It was really a

558
00:30:08,640 --> 00:30:12,479
Speaker 4: matter of getting more judges through this arcane process than

559
00:30:12,520 --> 00:30:15,080
Speaker 4: it was fixing the process. It's been a fight in

560
00:30:15,160 --> 00:30:17,760
Speaker 4: the state for decades, and it seems like everyone is

561
00:30:17,840 --> 00:30:21,720
Speaker 4: resigned to the unique nature of the political to and

562
00:30:21,880 --> 00:30:24,840
Speaker 4: fro of New Jersey, even if it means the fewer

563
00:30:24,920 --> 00:30:25,800
Speaker 4: judges around the bench.

564
00:30:26,240 --> 00:30:28,080
Speaker 1: A lot of investigation went into your story.

565
00:30:28,120 --> 00:30:32,080
Speaker 2: It's really interesting. Thanks so much, Alex. That's Alex Ebert,

566
00:30:32,160 --> 00:30:36,080
Speaker 2: Bloomberg Law Senior Correspondent, and that's it for this edition

567
00:30:36,120 --> 00:30:38,760
Speaker 2: of The Bloomberg Law Show. Remember you can always get

568
00:30:38,800 --> 00:30:41,880
Speaker 2: the latest legal news on our Bloomberg Law Podcast. You

569
00:30:41,960 --> 00:30:45,920
Speaker 2: can find them on Apple Podcasts, Spotify, and at www

570
00:30:46,200 --> 00:30:50,440
Speaker 2: dot Bloomberg dot com, slash podcast Slash Law, And remember

571
00:30:50,480 --> 00:30:53,400
Speaker 2: to tune into The Bloomberg Law Show every weeknight at

572
00:30:53,480 --> 00:30:56,960
Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're

573
00:30:57,040 --> 00:30:58,240
Speaker 2: listening to Bloomberg