1 00:00:00,480 --> 00:00:05,680 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,400 --> 00:00:10,160 Speaker 1: After four days of Supreme Court hearings, Judge Amy Coney 3 00:00:10,200 --> 00:00:12,959 Speaker 1: Barrett is on her way to becoming the next justice 4 00:00:13,000 --> 00:00:16,400 Speaker 1: on the Supreme Court. Barrett is an originalist like her 5 00:00:16,520 --> 00:00:21,119 Speaker 1: mentor conservative icon Justice antonin Scalia, and she explained what 6 00:00:21,239 --> 00:00:26,040 Speaker 1: that means. I interpret the Constitution as a law, that 7 00:00:26,200 --> 00:00:29,720 Speaker 1: I interpret its texts as text, and I understand it 8 00:00:29,760 --> 00:00:32,560 Speaker 1: to have the meaning that it had at the time 9 00:00:32,600 --> 00:00:36,160 Speaker 1: people ratified it, so that meaning doesn't change over time, 10 00:00:36,159 --> 00:00:38,320 Speaker 1: and it's not up to me to update it or 11 00:00:38,720 --> 00:00:42,040 Speaker 1: infuse my own policy views into it. As has become 12 00:00:42,080 --> 00:00:46,080 Speaker 1: the Norman Supreme Court nomination hearings, Barrett refused to answer 13 00:00:46,159 --> 00:00:49,680 Speaker 1: questions about her views on abortion rights, voting rights, same 14 00:00:49,720 --> 00:00:52,920 Speaker 1: sex marriage, gun rights, and even on some very basic 15 00:00:53,040 --> 00:00:56,280 Speaker 1: legal principles. For example, does the prows and then have 16 00:00:56,400 --> 00:00:58,920 Speaker 1: the authority to deny a person the right to vote 17 00:00:58,960 --> 00:01:01,960 Speaker 1: based on their race. There was a lot of questioning 18 00:01:02,000 --> 00:01:05,800 Speaker 1: about super precedents, generally meaning a case that's so well 19 00:01:05,880 --> 00:01:10,360 Speaker 1: settled it can't be overruled. Judge Barrett defined several landmark 20 00:01:10,480 --> 00:01:13,959 Speaker 1: Supreme Court cases as super president, such as Brown v. 21 00:01:14,040 --> 00:01:19,039 Speaker 1: Board of Education, which struck down school segregation, Marlbury versus. Madison, 22 00:01:19,120 --> 00:01:23,400 Speaker 1: which established the principle of judicial review, and Loving the Virginia, 23 00:01:23,520 --> 00:01:28,400 Speaker 1: which invalidated prohibitions against interracial marriage. But she said Roe v. 24 00:01:28,560 --> 00:01:32,600 Speaker 1: Wade was not a super precedent. Cases that are so 25 00:01:32,840 --> 00:01:36,920 Speaker 1: well settled that no political actors and no people seriously 26 00:01:36,959 --> 00:01:39,400 Speaker 1: pushed for their overruling. And I'm answering a lot of 27 00:01:39,480 --> 00:01:42,440 Speaker 1: questions about Row, which I think indicates that wrote hasn't 28 00:01:42,440 --> 00:01:45,920 Speaker 1: fall in that category. My guest is constitutional law professor 29 00:01:46,040 --> 00:01:50,160 Speaker 1: Leah Littmann of the University of Michigan Law School. What's 30 00:01:50,200 --> 00:01:55,040 Speaker 1: your general impression of her testimony. I think her testimony 31 00:01:55,040 --> 00:01:59,520 Speaker 1: has been reviewing in small ways for people who know 32 00:01:59,560 --> 00:02:04,200 Speaker 1: what to core. But she has studiously avoid saying anything 33 00:02:04,960 --> 00:02:09,799 Speaker 1: about views or issues, and she's already expressed views. It's 34 00:02:09,800 --> 00:02:13,120 Speaker 1: become typical for Supreme Court nominees. But Barrett refused to 35 00:02:13,160 --> 00:02:16,480 Speaker 1: answer questions on a host of issues, even some she's 36 00:02:16,520 --> 00:02:20,679 Speaker 1: expressed personal opinions on the past, such as abortion rights. 37 00:02:21,080 --> 00:02:25,720 Speaker 1: Did she go further in avoidance than other nominees. I 38 00:02:25,760 --> 00:02:29,919 Speaker 1: think she went further in the sense that unlike other nominees, 39 00:02:30,240 --> 00:02:36,600 Speaker 1: she actually has expressed definitive views about whether Row is 40 00:02:36,639 --> 00:02:40,600 Speaker 1: wrong and whether Row should be overruled, and so she 41 00:02:41,440 --> 00:02:45,680 Speaker 1: doesn't have the ability to say I don't have views 42 00:02:45,880 --> 00:02:49,040 Speaker 1: on that question, or you know, at the judge, I 43 00:02:49,080 --> 00:02:52,120 Speaker 1: can't express views on them, given that her views are 44 00:02:52,120 --> 00:02:56,160 Speaker 1: already out there. And so it's this odd disconnect between 45 00:02:57,000 --> 00:03:00,560 Speaker 1: her views being out there, Republicans assisting she doesn't have 46 00:03:00,600 --> 00:03:04,400 Speaker 1: any views, and Democrat being unable or unwilling to question 47 00:03:04,400 --> 00:03:08,200 Speaker 1: her about this she has already expressed. Let's discuss this 48 00:03:08,320 --> 00:03:13,000 Speaker 1: theory of super precedents. Is there a generally legally accepted 49 00:03:13,040 --> 00:03:17,080 Speaker 1: principle of what constitutes a super precedent that shouldn't be 50 00:03:17,120 --> 00:03:21,079 Speaker 1: reversed by the Supreme Court. I think what people do 51 00:03:21,520 --> 00:03:25,320 Speaker 1: accept is that there are certain cases that the Supreme 52 00:03:25,320 --> 00:03:30,600 Speaker 1: Court should not overrule. I think the court current legal 53 00:03:30,639 --> 00:03:36,080 Speaker 1: test for what cases shouldn't be overruled involves considerations such 54 00:03:36,120 --> 00:03:39,280 Speaker 1: as whether people have relied on that decision, whether they 55 00:03:39,320 --> 00:03:43,840 Speaker 1: have shaped their lives around assuming that decision will continue 56 00:03:43,960 --> 00:03:49,640 Speaker 1: to exist. The idea that precedents are not subject to 57 00:03:49,760 --> 00:03:56,840 Speaker 1: being overruled merely because people don't disagree with them is 58 00:03:57,560 --> 00:04:02,760 Speaker 1: something new. She has used that idea to deflect question 59 00:04:03,280 --> 00:04:07,480 Speaker 1: about decisions about decisions such as a burg A Fell 60 00:04:07,600 --> 00:04:12,000 Speaker 1: versus Hodges on marriage equality or Griswald versus Connecticut on 61 00:04:12,120 --> 00:04:15,720 Speaker 1: access to conteception. She said there's just no chance that 62 00:04:15,840 --> 00:04:22,400 Speaker 1: anyone would really frontily challenge those decisions today. But when 63 00:04:22,400 --> 00:04:26,760 Speaker 1: she doesn't say the same about Row and Casey, she 64 00:04:26,960 --> 00:04:31,200 Speaker 1: is making clear that in her view, on her understanding 65 00:04:31,320 --> 00:04:35,800 Speaker 1: about what super precedent is, rowan Casey can be overruled, 66 00:04:36,040 --> 00:04:40,240 Speaker 1: and she has explicitly called for their over ruling in 67 00:04:40,360 --> 00:04:45,760 Speaker 1: earlier writings and appearances. I believe that even Justice Kavanaugh 68 00:04:45,880 --> 00:04:50,400 Speaker 1: called Rowe precedent on precedent. Yes, that's correct. So he 69 00:04:50,560 --> 00:04:55,279 Speaker 1: referred to the Supreme Court decision and planned Parenthood versus Stacy. 70 00:04:55,880 --> 00:04:58,760 Speaker 1: That was a decision in which the Supreme Court said 71 00:04:58,920 --> 00:05:02,320 Speaker 1: they will not over rule roversus Wade. He called that 72 00:05:02,400 --> 00:05:06,839 Speaker 1: decision precedent on precedent. That's the decision that described when 73 00:05:07,040 --> 00:05:11,400 Speaker 1: precedents shouldn't be overruled. It is precedent on when other 74 00:05:11,440 --> 00:05:15,680 Speaker 1: precedents should be respected. She, however, has a view on 75 00:05:15,800 --> 00:05:19,560 Speaker 1: precedent that does not track the Supreme Court precedent on 76 00:05:19,640 --> 00:05:24,160 Speaker 1: precedent In Casey, her view seems to be that cases 77 00:05:24,200 --> 00:05:27,560 Speaker 1: can be overruled as long as there are some people, 78 00:05:28,080 --> 00:05:32,680 Speaker 1: or perhaps certain people, disagreeing with those decisions. I looked 79 00:05:32,680 --> 00:05:36,400 Speaker 1: at her Law review article and she said there. In 80 00:05:36,480 --> 00:05:40,799 Speaker 1: my view, however, super precedents do not illustrate a super 81 00:05:40,839 --> 00:05:45,080 Speaker 1: strong effect of starry decisive at all. So is that 82 00:05:45,160 --> 00:05:50,000 Speaker 1: an indication that even super precedents are reversible according to her? 83 00:05:50,480 --> 00:05:54,880 Speaker 1: I think that's right. In her legal writings as an academic, 84 00:05:55,360 --> 00:06:00,160 Speaker 1: she indicated that court's refusal to overturn certain decisions were 85 00:06:00,200 --> 00:06:05,279 Speaker 1: incorrectly decided could itself violate the Constitution. So she doesn't 86 00:06:05,320 --> 00:06:08,480 Speaker 1: think the mere fact that his decision isn't currently being 87 00:06:08,600 --> 00:06:14,000 Speaker 1: questioned means that course shouldn't or couldn't overrule them. Far 88 00:06:14,120 --> 00:06:17,640 Speaker 1: from this, she is instead using the concept of super 89 00:06:17,640 --> 00:06:22,279 Speaker 1: precedent to deflect questions about certain areas of law. So 90 00:06:22,720 --> 00:06:27,000 Speaker 1: from what she said and hasn't said about Row, can 91 00:06:27,040 --> 00:06:31,640 Speaker 1: we conclude that she might vote to reverse Row. I 92 00:06:31,680 --> 00:06:35,039 Speaker 1: think that that is a fair inference to draw from 93 00:06:35,080 --> 00:06:39,840 Speaker 1: all of her prior writings and statements. Again, she has 94 00:06:40,000 --> 00:06:44,279 Speaker 1: signed newspaper as calling for Row to be overturned. In 95 00:06:44,360 --> 00:06:47,400 Speaker 1: her academic writing, she has made clear that she thinks 96 00:06:47,440 --> 00:06:52,480 Speaker 1: the decision is Row was wrongly decided and equally important. 97 00:06:52,760 --> 00:06:55,560 Speaker 1: As a judge on the Court of Appeals for the 98 00:06:55,600 --> 00:07:01,520 Speaker 1: Seventh Circuits, she has embraced rulings that really fly in 99 00:07:01,640 --> 00:07:06,719 Speaker 1: the face of existing Supreme Court precedents on abortion. She 100 00:07:06,960 --> 00:07:10,240 Speaker 1: would have revisited a decision of the U. S. Court 101 00:07:10,280 --> 00:07:14,840 Speaker 1: of Appeals that struck down an Indiana statute that required 102 00:07:14,920 --> 00:07:18,960 Speaker 1: minors to obtain their parents to spent for obtaining abortions, 103 00:07:19,080 --> 00:07:21,880 Speaker 1: and that statute did not contain what is called a 104 00:07:21,960 --> 00:07:27,040 Speaker 1: judicial bypass provision, which allows minors to get a court 105 00:07:27,120 --> 00:07:31,440 Speaker 1: determination that says you are able to make the decision 106 00:07:31,480 --> 00:07:34,480 Speaker 1: about whether to have an abortion yourself and not notify 107 00:07:34,600 --> 00:07:40,080 Speaker 1: your parents. Existing Supreme Court precedent says parental notification requirements 108 00:07:40,120 --> 00:07:44,320 Speaker 1: are constitutional only if they contain a judicial bypass pervision, 109 00:07:44,680 --> 00:07:48,720 Speaker 1: and yet Judge Barrett was willing to say this Indiana 110 00:07:48,720 --> 00:07:51,840 Speaker 1: statute might be constitutional even though it does not have 111 00:07:51,920 --> 00:07:55,880 Speaker 1: a judicial bypass provision. So, based on her decisions about 112 00:07:55,960 --> 00:07:59,640 Speaker 1: respect for Supreme Court president on abortion, as well as 113 00:07:59,640 --> 00:08:03,720 Speaker 1: her democt writings and advocacy, I think yes. All of 114 00:08:03,720 --> 00:08:08,040 Speaker 1: the signs indicate she would overrule grow and other decisions 115 00:08:08,040 --> 00:08:11,200 Speaker 1: protecting the right to an abortion. The Democrats focused on 116 00:08:11,240 --> 00:08:15,560 Speaker 1: Obamacare throughout the hearings, and Barrett tried to distance herself 117 00:08:15,560 --> 00:08:20,040 Speaker 1: from her past criticism of Chief Justice Robert's reasoning in 118 00:08:20,080 --> 00:08:25,200 Speaker 1: the A c. A opinion. Did she succeed in explaining 119 00:08:25,400 --> 00:08:29,200 Speaker 1: or showing that the case before the court now involves 120 00:08:29,280 --> 00:08:34,880 Speaker 1: severability and so her past criticism is not relevant. I 121 00:08:34,920 --> 00:08:39,000 Speaker 1: think she succeeded in some respects and failed in others. 122 00:08:39,160 --> 00:08:41,880 Speaker 1: One thing she said is that the current challenge to 123 00:08:41,920 --> 00:08:46,120 Speaker 1: the Affordable Care Act does not actually involve the protection 124 00:08:46,200 --> 00:08:50,160 Speaker 1: for pre existing conditions. That's incorrect. The current case before 125 00:08:50,200 --> 00:08:54,000 Speaker 1: the Supreme Court asks the Court to invalidate the entire 126 00:08:54,200 --> 00:08:58,960 Speaker 1: Affordable Care Act, including its protection for pre existing conditions. Now, 127 00:08:58,960 --> 00:09:03,480 Speaker 1: what she did say is that the legal question of sevorability, 128 00:09:03,840 --> 00:09:07,040 Speaker 1: that is, whether the Court should invalidate the entire Affordable 129 00:09:07,120 --> 00:09:10,920 Speaker 1: Care As if it concludes that the minimum coverage provision 130 00:09:10,960 --> 00:09:15,880 Speaker 1: is unconstitutional. So that question is different from the part 131 00:09:15,960 --> 00:09:19,480 Speaker 1: of the Chief Justice's opinion she was criticizing. But what 132 00:09:19,559 --> 00:09:22,600 Speaker 1: she omitted is that the very first question in this 133 00:09:22,720 --> 00:09:25,200 Speaker 1: Affordable Care Act case that the Supreme Court is going 134 00:09:25,240 --> 00:09:28,199 Speaker 1: to hear in November is the same question that she 135 00:09:28,320 --> 00:09:32,640 Speaker 1: criticized the Chief Justice for answering back in two thousand twelve. 136 00:09:33,000 --> 00:09:36,000 Speaker 1: The question is whether the minimum coverage provision in the 137 00:09:36,040 --> 00:09:39,640 Speaker 1: Affordable Care Act is constitutional? The Chief Justice that it was, 138 00:09:39,920 --> 00:09:42,839 Speaker 1: and she criticized him for reaching that position. And that's 139 00:09:42,880 --> 00:09:45,240 Speaker 1: the issue that the Court will take up in November. 140 00:09:45,720 --> 00:09:47,520 Speaker 1: You said that if you know what to look for, 141 00:09:47,800 --> 00:09:51,120 Speaker 1: you've got some hints. Are there other areas where you 142 00:09:51,200 --> 00:09:57,440 Speaker 1: got some hints? About her philosophy? She called sexual orientation 143 00:09:57,559 --> 00:10:01,600 Speaker 1: a sexual preference UM, even after editor Corono informed her 144 00:10:01,720 --> 00:10:05,599 Speaker 1: about how that language is the meaning of LGBT couples. 145 00:10:05,640 --> 00:10:09,559 Speaker 1: I think that UM and LGBT individuals. I think that 146 00:10:09,559 --> 00:10:15,520 Speaker 1: that is revealing in her approach to LGBT rights. I 147 00:10:15,559 --> 00:10:20,200 Speaker 1: think her at answers on issues of law of democracy 148 00:10:20,240 --> 00:10:23,320 Speaker 1: were also revealing. So she refused to say whether the 149 00:10:23,360 --> 00:10:26,320 Speaker 1: Constitution or federal laws just the president the authority to 150 00:10:26,400 --> 00:10:29,680 Speaker 1: unilaterally delay a presidential election. She also refused to say 151 00:10:29,679 --> 00:10:33,840 Speaker 1: whether voter intimidation is illegal. She refused to answer Senator 152 00:10:33,840 --> 00:10:37,679 Speaker 1: Clobuchar's question about voting rights in the pandemic, and whether 153 00:10:37,720 --> 00:10:40,760 Speaker 1: it was a threat to access to voting rights to 154 00:10:40,840 --> 00:10:43,319 Speaker 1: force people to vote in person during the pandemic. And 155 00:10:43,360 --> 00:10:45,720 Speaker 1: I think all of those answers, as well as some 156 00:10:45,800 --> 00:10:48,840 Speaker 1: of her answers on other matters of reproductive justice, such 157 00:10:48,880 --> 00:10:52,800 Speaker 1: as refusing to say whether in vitro fertilization was manslat 158 00:10:52,920 --> 00:10:55,520 Speaker 1: or um, we're revealing to the kind of judge and 159 00:10:55,600 --> 00:10:58,480 Speaker 1: justice that she is going to be. Barrett has embraced 160 00:10:58,600 --> 00:11:02,120 Speaker 1: the judicial philosophy of a originalism and textualism of Justice 161 00:11:02,120 --> 00:11:05,920 Speaker 1: Antonin Scalia, whom she clerked for. What does that tell 162 00:11:06,280 --> 00:11:10,720 Speaker 1: us about her philosophy as a judge. I think her 163 00:11:10,880 --> 00:11:16,360 Speaker 1: commitment to identifying herself with Justice Scalia tells us a 164 00:11:16,440 --> 00:11:20,160 Speaker 1: lot about how she will vote on matters of reproductive justice. 165 00:11:20,280 --> 00:11:23,439 Speaker 1: Jice Scalia, of course, called for Roe versus Way to 166 00:11:23,480 --> 00:11:27,000 Speaker 1: be overruled. He likened the decision to the Supreme Court's 167 00:11:27,000 --> 00:11:31,800 Speaker 1: Information decision and dread Scott forsus Stanford that held that 168 00:11:32,080 --> 00:11:35,800 Speaker 1: the Constitution did not allow Congress to do anything about 169 00:11:35,840 --> 00:11:41,400 Speaker 1: the institution of slavery um. It also brings her back 170 00:11:41,440 --> 00:11:44,080 Speaker 1: to the Affordable Care Act, because, of course, Justice Scalia 171 00:11:44,200 --> 00:11:47,560 Speaker 1: would have invalidated the entire Affordable Care Act in two 172 00:11:47,559 --> 00:11:52,160 Speaker 1: thousand twelve, and so her identifying herself with Jfice Scalia's 173 00:11:52,200 --> 00:11:57,040 Speaker 1: dresprudence calls to mind both of those key areas of law. 174 00:11:57,520 --> 00:12:02,040 Speaker 1: Senator John Cornyn said, predicting how you might rule in 175 00:12:02,080 --> 00:12:05,400 Speaker 1: a particular case, is that even possible? And she replied 176 00:12:05,440 --> 00:12:09,240 Speaker 1: it's not possible. Are there ways to predict how justices 177 00:12:09,280 --> 00:12:12,319 Speaker 1: will rule in a particular case or are we surprised 178 00:12:12,440 --> 00:12:16,640 Speaker 1: enough that there aren't those ways. I think on some 179 00:12:16,720 --> 00:12:20,760 Speaker 1: cases it might be difficult to predict exactly how justices 180 00:12:20,800 --> 00:12:23,559 Speaker 1: will reach the results they do, and perhaps another case 181 00:12:23,679 --> 00:12:25,679 Speaker 1: is difficult to predict how they will vote. But the 182 00:12:25,800 --> 00:12:29,760 Speaker 1: reality is that in most of the high profile ideological 183 00:12:29,800 --> 00:12:34,200 Speaker 1: cases that these confirmation hearings are focused on, the political 184 00:12:34,200 --> 00:12:37,600 Speaker 1: party of the president who appoints a justice is extremely 185 00:12:37,640 --> 00:12:41,080 Speaker 1: predictive about how a justice will vote. In fact, the 186 00:12:41,080 --> 00:12:45,040 Speaker 1: Republican Party promised in its platform to only appoint justice 187 00:12:45,120 --> 00:12:48,960 Speaker 1: who would overturn ro versus Wade and who would not 188 00:12:49,080 --> 00:12:51,240 Speaker 1: vote to a foldy affordable care at if the chief 189 00:12:51,280 --> 00:12:53,640 Speaker 1: Justice is and who would also question of burg offal 190 00:12:53,760 --> 00:12:57,319 Speaker 1: versus conjects on marriage equality and they seem to think, 191 00:12:57,520 --> 00:13:00,079 Speaker 1: the Republican Party, that is, that they can so le 192 00:13:00,320 --> 00:13:02,840 Speaker 1: justices who will do those things they have promised to do. 193 00:13:02,920 --> 00:13:06,000 Speaker 1: That Senator Josh Holly that he would not vote to 194 00:13:06,040 --> 00:13:09,120 Speaker 1: confirm any nominee who he was not confident would not 195 00:13:09,360 --> 00:13:14,040 Speaker 1: overturn Roe versus Ways, and he is confident in voting 196 00:13:14,040 --> 00:13:18,400 Speaker 1: to confirm Justice Sit to the Supreme Court. So I 197 00:13:18,480 --> 00:13:22,560 Speaker 1: think that Senator Cornin statement is out of death with 198 00:13:22,720 --> 00:13:26,800 Speaker 1: the Republican Party understanding about how the selection of justices 199 00:13:27,200 --> 00:13:31,640 Speaker 1: works and the reality about how the justices have voted 200 00:13:31,640 --> 00:13:34,680 Speaker 1: in high profile and theological cases. So, when you have 201 00:13:34,840 --> 00:13:39,600 Speaker 1: a nominee like this, who is very bright and has 202 00:13:39,960 --> 00:13:44,599 Speaker 1: judicial experience, she's been a law school professor for decades, 203 00:13:45,559 --> 00:13:48,760 Speaker 1: she is qualified? Is she not? She is qualified for 204 00:13:48,800 --> 00:13:51,360 Speaker 1: the court? Is it harder to attack her because she 205 00:13:51,559 --> 00:13:55,840 Speaker 1: is seemingly qualified for the court? Well, she's qualified in 206 00:13:55,880 --> 00:13:59,800 Speaker 1: the sense that her credentials make her eligible to sir 207 00:14:00,360 --> 00:14:03,600 Speaker 1: on the Supreme Court. But I think it's also safe 208 00:14:03,679 --> 00:14:06,640 Speaker 1: to say that she has expressed views that are out 209 00:14:06,679 --> 00:14:10,000 Speaker 1: of death with a majority of the United States. And also, 210 00:14:10,160 --> 00:14:14,240 Speaker 1: and equally importantly, that her appointment itself is happening in 211 00:14:14,280 --> 00:14:17,200 Speaker 1: a very unusual process, and so I think that the 212 00:14:17,200 --> 00:14:20,840 Speaker 1: Democrats would be on strong ground pointing out that the 213 00:14:20,880 --> 00:14:23,920 Speaker 1: appointment of a justice to the Sistreme Court as an 214 00:14:23,920 --> 00:14:28,800 Speaker 1: election is underway after the Republican Party a Republican Senate 215 00:14:28,880 --> 00:14:32,160 Speaker 1: has said justice should not be confirmed in an election 216 00:14:32,280 --> 00:14:35,920 Speaker 1: year and blocked President Obama's not me during an election year. 217 00:14:36,320 --> 00:14:39,360 Speaker 1: Those are very valid basis for opposing a nominee whose 218 00:14:39,440 --> 00:14:42,600 Speaker 1: views on the law of democracy and reproductive justice are 219 00:14:43,080 --> 00:14:45,160 Speaker 1: but very well known and also out of step with 220 00:14:45,320 --> 00:14:48,400 Speaker 1: where a majority of Americans are today. This question, too 221 00:14:48,440 --> 00:14:51,960 Speaker 1: is how much can you get from a judge writing 222 00:14:52,000 --> 00:14:55,200 Speaker 1: a dissent. She wrote a dissent in a case where 223 00:14:55,440 --> 00:14:58,680 Speaker 1: the court ruled that a felon did not have the 224 00:14:58,800 --> 00:15:01,480 Speaker 1: right to get a gun in she her discent was 225 00:15:01,880 --> 00:15:04,240 Speaker 1: he should have the right. So tell us about that 226 00:15:04,320 --> 00:15:07,800 Speaker 1: descent and whether you can really read so much into 227 00:15:07,880 --> 00:15:13,120 Speaker 1: a judge's descent. I think that descent is important for 228 00:15:13,280 --> 00:15:18,320 Speaker 1: two reasons. First is it does make somewhat plain that 229 00:15:18,440 --> 00:15:22,800 Speaker 1: her approach to the Second Amendment is more conservative than 230 00:15:23,320 --> 00:15:26,520 Speaker 1: the majority of the Supreme Court. In the Supreme Court's 231 00:15:26,520 --> 00:15:30,000 Speaker 1: decision in District of Columbia versus Power. Portions of the 232 00:15:30,040 --> 00:15:33,680 Speaker 1: opinion indicated that the federal government and state governments could 233 00:15:33,720 --> 00:15:37,520 Speaker 1: restrict the possession of firearms by persons with felony convictions. 234 00:15:37,560 --> 00:15:41,000 Speaker 1: They noted that those prohibitions were long standing and likely constitutional. 235 00:15:41,360 --> 00:15:45,760 Speaker 1: Judge Barrett, however, disagree. Equally important is what Judge Barrett 236 00:15:45,840 --> 00:15:48,800 Speaker 1: said in that decision about voting rights. She went out 237 00:15:48,800 --> 00:15:51,280 Speaker 1: of her way to note that the Second Amendment is 238 00:15:51,280 --> 00:15:54,680 Speaker 1: an individual right and different from the right to vote. 239 00:15:55,120 --> 00:15:58,880 Speaker 1: That is, she said the federal government couldn't prohibit all 240 00:15:58,920 --> 00:16:01,920 Speaker 1: persons of felony can actions and owning firearms, but it 241 00:16:01,960 --> 00:16:05,960 Speaker 1: could prevent persons of felony connections from voting. She called 242 00:16:06,240 --> 00:16:09,240 Speaker 1: the right to vote not an individual right but diyok 243 00:16:09,320 --> 00:16:14,360 Speaker 1: right limited to virtuous citizens. And that is revealing not 244 00:16:14,440 --> 00:16:17,360 Speaker 1: only about her views on voting rights, but also about 245 00:16:17,360 --> 00:16:21,680 Speaker 1: her willingness to go and decide issues that aren't directly 246 00:16:21,840 --> 00:16:24,360 Speaker 1: before the court. She didn't have to weigh in on 247 00:16:24,840 --> 00:16:26,960 Speaker 1: the scope of voting rights and a decision about the 248 00:16:26,960 --> 00:16:32,240 Speaker 1: constitutionality of restrictions on firearm possession. Thanks for being the 249 00:16:32,240 --> 00:16:35,320 Speaker 1: Bloomberg Lawn Show, Leah. That's Professor Leah Littman of the 250 00:16:35,400 --> 00:16:41,800 Speaker 1: University of Michigan Law School, Microsoft and Wales Targo pledged 251 00:16:41,840 --> 00:16:44,960 Speaker 1: to double their ranks of black leaders within five years. 252 00:16:45,520 --> 00:16:48,800 Speaker 1: In response, they received letters from the US Labor Department 253 00:16:48,880 --> 00:16:52,480 Speaker 1: asking how they would meet that commitment without discriminating on 254 00:16:52,520 --> 00:16:56,800 Speaker 1: the basis of race. My guest is Samuel Baginstas a 255 00:16:56,880 --> 00:17:00,000 Speaker 1: professor at the University of Michigan Law School. He served 256 00:17:00,120 --> 00:17:03,640 Speaker 1: in the Jealics Departments Civil Rights Division. So what's the 257 00:17:03,680 --> 00:17:09,520 Speaker 1: difference between affirmative action and discrimination in hiring. The phrase 258 00:17:09,560 --> 00:17:13,959 Speaker 1: affirmative action really covers a whole lot of ground and 259 00:17:14,320 --> 00:17:17,960 Speaker 1: sometimes a little bit confusing and misleading to to hear 260 00:17:18,000 --> 00:17:20,840 Speaker 1: the phrase affirmative action. And it's core what it is 261 00:17:20,840 --> 00:17:24,480 Speaker 1: is the idea that you want to make sure if 262 00:17:24,480 --> 00:17:27,479 Speaker 1: you're running a business or a school, if you're an 263 00:17:27,480 --> 00:17:30,800 Speaker 1: employer or whatever, you want to make sure that you're 264 00:17:30,840 --> 00:17:34,960 Speaker 1: taking actions that don't unnecessarily exclude people based on their 265 00:17:35,040 --> 00:17:39,040 Speaker 1: race or their sex, etcetera. And so you're taking steps 266 00:17:39,080 --> 00:17:43,359 Speaker 1: to see the results of the actions you're taking and 267 00:17:43,480 --> 00:17:48,040 Speaker 1: try to ensure that you get a sufficient representational qualified 268 00:17:48,080 --> 00:17:52,480 Speaker 1: people in various positions. And so where this comes from, 269 00:17:53,000 --> 00:17:57,320 Speaker 1: particularly in the employment setting UM is actually an executive 270 00:17:57,400 --> 00:18:01,400 Speaker 1: order that Lyndon Johnson's side in nineteen five that explicitly 271 00:18:01,440 --> 00:18:06,000 Speaker 1: ties affirmative action to non discrimination. Says employers have to 272 00:18:06,080 --> 00:18:11,520 Speaker 1: take affirmative action to ensure that applicants and employees are 273 00:18:11,520 --> 00:18:14,920 Speaker 1: treated without discrimination. So it shows if firma of action 274 00:18:15,000 --> 00:18:18,639 Speaker 1: doesn't mean quotas. It doesn't mean, you know, putting a 275 00:18:18,680 --> 00:18:21,440 Speaker 1: thumb on the scale for unqualified people. What it means 276 00:18:21,560 --> 00:18:24,959 Speaker 1: is just making sure that you're not discriminating, and you know, 277 00:18:25,000 --> 00:18:29,400 Speaker 1: consulting the results of your actions to check whether you're 278 00:18:29,440 --> 00:18:35,240 Speaker 1: DISCRIMINATET So, Microsoft and Wells Fargo pledged to double the 279 00:18:35,359 --> 00:18:39,439 Speaker 1: ranks of black leaders in their companies within five years. 280 00:18:39,520 --> 00:18:42,720 Speaker 1: That was a target. Was there anything that you see 281 00:18:42,760 --> 00:18:46,600 Speaker 1: that was wrong with them saying that? You know, if 282 00:18:46,640 --> 00:18:51,000 Speaker 1: what they were doing is saying, no matter who applies, 283 00:18:51,200 --> 00:18:54,920 Speaker 1: no matter what our pool is, you know, we are 284 00:18:55,480 --> 00:18:58,760 Speaker 1: going to get to a certain number or certain percentage 285 00:18:59,160 --> 00:19:04,560 Speaker 1: of African American managers. You know, that would very likely 286 00:19:04,600 --> 00:19:07,640 Speaker 1: be a violation of the law. But that doesn't at 287 00:19:07,640 --> 00:19:10,160 Speaker 1: all look like what they're doing. UM. What they're doing 288 00:19:10,200 --> 00:19:13,720 Speaker 1: instead is saying, look, this is a goal we have. 289 00:19:14,040 --> 00:19:17,000 Speaker 1: We have a goal of doubling our our percentage of 290 00:19:17,280 --> 00:19:22,320 Speaker 1: African American managers UM. And those kinds of goals are 291 00:19:23,160 --> 00:19:26,320 Speaker 1: really well entrenched in the law UM. And if you 292 00:19:26,359 --> 00:19:30,280 Speaker 1: look at the programs that that Microsoft and Wales Fargo 293 00:19:30,359 --> 00:19:33,879 Speaker 1: are adopting to make those goals real, you know, what 294 00:19:33,880 --> 00:19:36,679 Speaker 1: they're doing is very very much in the realm of 295 00:19:36,720 --> 00:19:41,680 Speaker 1: non discriminatory stuff. You know, they're working to expand their recruitment, 296 00:19:41,760 --> 00:19:45,320 Speaker 1: to expand their pool. Uh, you know, exactly the kind 297 00:19:45,359 --> 00:19:47,840 Speaker 1: of thing that we would want them to do to 298 00:19:47,880 --> 00:19:52,919 Speaker 1: avoid discrimination. I think, you know, one interesting aspect of 299 00:19:52,960 --> 00:19:58,240 Speaker 1: both Wells Fargo and Microsoft is that the very agency 300 00:19:58,280 --> 00:20:01,840 Speaker 1: of the Department of Labor that has just sent them 301 00:20:01,920 --> 00:20:05,879 Speaker 1: letters suggesting that they might be violating the law by 302 00:20:06,040 --> 00:20:10,439 Speaker 1: setting a goal of improving minority representation and management. Just 303 00:20:10,600 --> 00:20:14,560 Speaker 1: a couple of months ago, that same agency found each 304 00:20:14,800 --> 00:20:21,880 Speaker 1: of these companies libel um for discriminating against African Americans 305 00:20:22,200 --> 00:20:25,359 Speaker 1: in different ways. And so, you know, we have a 306 00:20:26,280 --> 00:20:31,320 Speaker 1: pattern of past discrimination by each of these two companies 307 00:20:31,520 --> 00:20:34,520 Speaker 1: that they're trying to overcome down. I think that's you know, 308 00:20:34,640 --> 00:20:38,280 Speaker 1: something that they should get credit for, UM. But instead 309 00:20:38,720 --> 00:20:41,840 Speaker 1: the Department of Labor is, you know, is acting in 310 00:20:41,880 --> 00:20:46,159 Speaker 1: a sort of maddeningly inconsistent way, first whacking them for 311 00:20:46,280 --> 00:20:49,960 Speaker 1: discriminating against African Americans and then threatening to whack them 312 00:20:50,040 --> 00:20:53,480 Speaker 1: for trying to do something about in that the settlements, 313 00:20:53,480 --> 00:20:57,640 Speaker 1: which were recent Microsoft paid three million dollars, Wells Fargo 314 00:20:57,760 --> 00:21:01,199 Speaker 1: paid seven point eight millions. They did not admit that 315 00:21:01,240 --> 00:21:04,840 Speaker 1: they had discriminated. Was it the Labor Department in the 316 00:21:04,840 --> 00:21:11,440 Speaker 1: Trump administration that initiated that investigation into Microsoft and Wells Fargo? 317 00:21:11,680 --> 00:21:14,080 Speaker 1: So it was it was the Trump administration that worked 318 00:21:14,080 --> 00:21:17,720 Speaker 1: out the settlements. Um, but I believe the investigations were 319 00:21:17,760 --> 00:21:20,840 Speaker 1: going on before the Trump administration. But you know, I 320 00:21:20,880 --> 00:21:24,640 Speaker 1: think that just highlights, uh that what's going on here 321 00:21:24,880 --> 00:21:28,040 Speaker 1: is as much about Trump as it is about just 322 00:21:28,160 --> 00:21:30,880 Speaker 1: kind of straightforward enforcement of the law. I mean, it's 323 00:21:30,920 --> 00:21:35,280 Speaker 1: not surprising that less than a month before the election, 324 00:21:35,520 --> 00:21:40,320 Speaker 1: where the Trump administration is trying to gin up culture 325 00:21:40,320 --> 00:21:44,080 Speaker 1: war issues, particularly around race. You know, you see this 326 00:21:44,240 --> 00:21:48,440 Speaker 1: shot across the bow at two very large corporations. At 327 00:21:48,440 --> 00:21:52,120 Speaker 1: the same time roughly that you see the you see 328 00:21:52,119 --> 00:21:56,560 Speaker 1: the Trump administration suing Yale for its affirmative Action program 329 00:21:56,560 --> 00:21:59,760 Speaker 1: and admissions. At the same time roughly that you see 330 00:21:59,760 --> 00:22:04,040 Speaker 1: this new executive order from UH from President Trump that 331 00:22:04,400 --> 00:22:08,960 Speaker 1: forbids federal contractors from doing certain kinds of diversity training 332 00:22:09,080 --> 00:22:13,440 Speaker 1: that allegedly scapegoat or stereotype white people. Um, right, all 333 00:22:13,480 --> 00:22:16,520 Speaker 1: of this is of a piece. It's it's all really 334 00:22:16,600 --> 00:22:20,080 Speaker 1: political much more than it is about law enforcement. How 335 00:22:20,119 --> 00:22:23,359 Speaker 1: odd is it that the Department of Labor sent out 336 00:22:23,400 --> 00:22:27,840 Speaker 1: this letter to these two companies. It's odd that the 337 00:22:27,880 --> 00:22:33,359 Speaker 1: Department of Labor is UH is asking these companies to 338 00:22:33,520 --> 00:22:38,080 Speaker 1: justify actions that are very much the kind of actions 339 00:22:38,119 --> 00:22:42,280 Speaker 1: that the Department of Labor's Office of Federal Contract Compliance 340 00:22:42,320 --> 00:22:47,000 Speaker 1: Programs was set up to encourage companies to do. I 341 00:22:47,000 --> 00:22:49,240 Speaker 1: mean the office of the Department of Labor that sent 342 00:22:49,320 --> 00:22:53,760 Speaker 1: this letter. Their job is to encourage federal contractors to 343 00:22:53,840 --> 00:22:59,960 Speaker 1: adopt affirmative action programs very much like the ones that Microsoft, 344 00:23:00,000 --> 00:23:02,920 Speaker 1: often Wales, Fargo have adopted. And the idea that they're 345 00:23:02,920 --> 00:23:05,360 Speaker 1: going to turn around now and say, oh, but once 346 00:23:05,440 --> 00:23:09,080 Speaker 1: you've done that, that raises suspicions that you're violating the law. 347 00:23:09,600 --> 00:23:13,879 Speaker 1: You know, it's just perverse and so so that's odd, 348 00:23:14,000 --> 00:23:16,600 Speaker 1: and it's not odd that they send an investigated letter 349 00:23:16,640 --> 00:23:18,879 Speaker 1: in general, that's how they open an investigation. But the 350 00:23:18,920 --> 00:23:23,800 Speaker 1: substance of this investigation is very odd. Um, can the 351 00:23:23,880 --> 00:23:28,520 Speaker 1: government just demand this information from federal contractors when there's 352 00:23:28,600 --> 00:23:31,600 Speaker 1: no formal complaint. Well, you know, there have been a 353 00:23:31,680 --> 00:23:37,399 Speaker 1: lot of fights recently over the Department of Labor's authority 354 00:23:37,800 --> 00:23:42,600 Speaker 1: UM with regard to investigations uh in in in this 355 00:23:42,720 --> 00:23:47,440 Speaker 1: precise area, and I think there's some lack of clarity. 356 00:23:47,480 --> 00:23:49,960 Speaker 1: I think, you know, from the perspective of the Department 357 00:23:49,960 --> 00:23:53,000 Speaker 1: of Labor, they've taken the position for a long time 358 00:23:53,080 --> 00:23:56,520 Speaker 1: that they don't need a complaint uh to demand information, 359 00:23:57,119 --> 00:24:00,320 Speaker 1: that this is part of their role in making sure 360 00:24:00,400 --> 00:24:05,720 Speaker 1: that federal contractors are complying with the terms of the 361 00:24:05,800 --> 00:24:09,560 Speaker 1: federal contract that require them not to discriminate and in 362 00:24:09,600 --> 00:24:13,040 Speaker 1: fact to provide affirmative action. Again, you know, I think 363 00:24:13,359 --> 00:24:18,720 Speaker 1: what's what's weird here is much more the substance of 364 00:24:18,760 --> 00:24:22,199 Speaker 1: what they're asking about than the process and tell us 365 00:24:22,240 --> 00:24:27,040 Speaker 1: about the Trump executive Order. So, a couple of weeks ago, 366 00:24:27,280 --> 00:24:32,680 Speaker 1: President Trump signed an executive order which has this very 367 00:24:32,720 --> 00:24:37,840 Speaker 1: innocuous title combating race and sex stereotyping. But what the 368 00:24:37,920 --> 00:24:44,120 Speaker 1: executive order does is it forbids federal contractors from conducting 369 00:24:44,400 --> 00:24:50,480 Speaker 1: workplace diversity and inclusion trainings that either promote race or 370 00:24:50,520 --> 00:24:55,160 Speaker 1: sex stereotyping or promote race or sex scapegoating. And these 371 00:24:55,320 --> 00:24:59,600 Speaker 1: terms race or sex stereotyping and racor sex scapegoating are 372 00:24:59,680 --> 00:25:03,600 Speaker 1: defined on in the Executive Order in such a way 373 00:25:03,720 --> 00:25:09,040 Speaker 1: that any training that teaches about the concept of white privilege, 374 00:25:09,160 --> 00:25:12,399 Speaker 1: for example, would violate the terms of the order. Any 375 00:25:12,440 --> 00:25:16,600 Speaker 1: training that teaches that people of particular races might have 376 00:25:16,840 --> 00:25:21,560 Speaker 1: more unconscious or implicit or even explicit bias um with 377 00:25:21,600 --> 00:25:24,680 Speaker 1: regard to other races might be in violation of the order. 378 00:25:24,800 --> 00:25:31,679 Speaker 1: So it's really designed to stop this whole apparatus of 379 00:25:31,800 --> 00:25:35,600 Speaker 1: workplace diversity and inclusion trainings UM. And again it's one 380 00:25:35,640 --> 00:25:39,000 Speaker 1: of these culture war issues that President Trump, I think 381 00:25:39,040 --> 00:25:42,840 Speaker 1: sees as a way of kind of promoting his re 382 00:25:43,000 --> 00:25:47,120 Speaker 1: election among his base. Labor Department created telephone and email 383 00:25:47,200 --> 00:25:51,480 Speaker 1: hotlines to report what you said offensive and anti American 384 00:25:51,640 --> 00:25:56,399 Speaker 1: race and sex stereotyping scapegoating. Is that unusual for the 385 00:25:56,520 --> 00:26:00,359 Speaker 1: for the Labor Department of hotlines like that, Well, you know, 386 00:26:00,440 --> 00:26:04,040 Speaker 1: I think the Labor Department, like other federal enforcement agencies, 387 00:26:04,080 --> 00:26:07,840 Speaker 1: will create hotlines when they when they're placing a very 388 00:26:07,920 --> 00:26:10,560 Speaker 1: high priority on an enforcement issue, you know. And so 389 00:26:10,600 --> 00:26:14,160 Speaker 1: I think it's just a sign that they are putting 390 00:26:14,160 --> 00:26:17,600 Speaker 1: a priority on this. And and look, if they were 391 00:26:17,640 --> 00:26:21,199 Speaker 1: to wait for written complaints, uh, they probably wouldn't be 392 00:26:21,240 --> 00:26:24,600 Speaker 1: able to issue any press releases before the election about 393 00:26:25,119 --> 00:26:28,080 Speaker 1: you know, diversity trainings they've taken down or threatened to 394 00:26:28,119 --> 00:26:32,000 Speaker 1: take down. And so you know, if this is significantly 395 00:26:32,280 --> 00:26:36,040 Speaker 1: about the election, much more than law enforcement in general, 396 00:26:36,480 --> 00:26:39,680 Speaker 1: then you would expect them to have a hotline like this. Uh. 397 00:26:39,720 --> 00:26:41,959 Speaker 1: You know. So again I think I think it's really 398 00:26:42,240 --> 00:26:45,199 Speaker 1: something you have to look at in the context in 399 00:26:45,200 --> 00:26:48,160 Speaker 1: which the Trump administration is acting. This is not just 400 00:26:48,320 --> 00:26:52,760 Speaker 1: a technocratic law enforcement action. This is really about three 401 00:26:52,760 --> 00:26:56,600 Speaker 1: weeks before the election and the Trump administration is taking 402 00:26:56,640 --> 00:26:59,119 Speaker 1: a bunch of steps to try to do what it 403 00:26:59,160 --> 00:27:03,760 Speaker 1: thinks will motivate its base. But what happens if Joe 404 00:27:03,760 --> 00:27:10,000 Speaker 1: Biden wins the election. Can these executive orders and the 405 00:27:10,160 --> 00:27:16,040 Speaker 1: various enforcement efforts by the Labor Department be turned around quickly? Yes, 406 00:27:16,280 --> 00:27:19,000 Speaker 1: they could be turned around very quickly. So, I mean 407 00:27:19,040 --> 00:27:23,000 Speaker 1: the executive order could be eliminated with the stroke of 408 00:27:23,000 --> 00:27:27,440 Speaker 1: a pen. It's just another executive order to rescind the 409 00:27:27,480 --> 00:27:30,800 Speaker 1: Trump executive order. That's all that would be necessary. Uh, 410 00:27:30,840 --> 00:27:35,400 Speaker 1: these investigations of Microsoft and Wells Fargo and any other 411 00:27:35,440 --> 00:27:39,159 Speaker 1: companies that are out there. Uh, you know, all it 412 00:27:39,200 --> 00:27:42,440 Speaker 1: would take is new leadership in the Labor Department taking 413 00:27:42,520 --> 00:27:45,240 Speaker 1: a look at the facts and saying, you know, on 414 00:27:45,359 --> 00:27:47,800 Speaker 1: the facts, we don't really think there's a violation here. 415 00:27:47,840 --> 00:27:51,800 Speaker 1: And now I think a responsible new administration that came 416 00:27:51,840 --> 00:27:55,800 Speaker 1: in would look at the facts and and make a 417 00:27:55,840 --> 00:27:59,640 Speaker 1: decision based on that rather than just sort of reflectively 418 00:27:59,680 --> 00:28:03,320 Speaker 1: saying anything Trump did was bad. So so we're reversing 419 00:28:03,359 --> 00:28:06,320 Speaker 1: everything Trump did. But you know, from the looks of it, 420 00:28:06,680 --> 00:28:10,760 Speaker 1: the facts suggest that there's not really a violation here, 421 00:28:10,760 --> 00:28:13,440 Speaker 1: and what's really going on here is politics. And if 422 00:28:13,480 --> 00:28:16,760 Speaker 1: that proves to be true, and the new administration finds that, 423 00:28:16,920 --> 00:28:20,879 Speaker 1: they could end the investigations very quickly. Has the Labor 424 00:28:20,960 --> 00:28:29,520 Speaker 1: Department in its outlook or enforcement changed under Eugene Scalia? Well, 425 00:28:29,560 --> 00:28:32,560 Speaker 1: I think you know what we've seen under Eugene Scalia 426 00:28:32,880 --> 00:28:38,640 Speaker 1: is uh much more centralization. Uh in the Secretary's office. 427 00:28:38,720 --> 00:28:41,560 Speaker 1: Send in people close to the Secretary's office at the 428 00:28:41,600 --> 00:28:44,480 Speaker 1: Labor Department. You know, he's been a very strong Secretary 429 00:28:44,480 --> 00:28:48,040 Speaker 1: of Labor, uh in the sense that he really takes 430 00:28:48,080 --> 00:28:52,239 Speaker 1: responsibility for running all of the department. Um. You know, 431 00:28:52,360 --> 00:28:56,240 Speaker 1: and so I think there had been some concern under 432 00:28:56,280 --> 00:28:59,360 Speaker 1: the prior secretary by folks in the Trump White House 433 00:28:59,480 --> 00:29:03,280 Speaker 1: that may be the agenda of the Trump administration wasn't 434 00:29:03,320 --> 00:29:08,960 Speaker 1: being effectively implemented, uh, in part because maybe Secretary Acosta 435 00:29:09,080 --> 00:29:11,600 Speaker 1: wasn't as fully on board with the Trump agenda, and 436 00:29:11,640 --> 00:29:14,840 Speaker 1: maybe in part because he wasn't as strong in terms 437 00:29:14,960 --> 00:29:20,280 Speaker 1: of managing from a centralized management perspective. But Eugene Scalia 438 00:29:20,360 --> 00:29:22,200 Speaker 1: has shown that he's a true member of the Trump 439 00:29:22,240 --> 00:29:25,040 Speaker 1: team and that he is a very effective manager to 440 00:29:25,280 --> 00:29:28,680 Speaker 1: implement the Trump agenda throughout the Lated Department. Do you 441 00:29:28,760 --> 00:29:33,720 Speaker 1: think it's wiser for CEOs of these big companies not 442 00:29:33,920 --> 00:29:38,760 Speaker 1: to announce targets for hiring, Well, I think that's what 443 00:29:39,160 --> 00:29:44,480 Speaker 1: the Trump administration is trying to suggest with these actions, UM. 444 00:29:44,600 --> 00:29:48,120 Speaker 1: And I think that would be a real shame, because, 445 00:29:49,200 --> 00:29:53,880 Speaker 1: you know, it certainly looks like from the Trump administration's perspective, 446 00:29:53,920 --> 00:29:58,280 Speaker 1: if you announce that you have a diversity goal at 447 00:29:58,320 --> 00:30:01,800 Speaker 1: some point in the future that that it's going to 448 00:30:01,840 --> 00:30:04,600 Speaker 1: create a target of a different type is to effectively 449 00:30:04,640 --> 00:30:07,560 Speaker 1: paying a target on the back of the company um 450 00:30:07,880 --> 00:30:12,760 Speaker 1: in a Department of Labor administrative investigation. And what that 451 00:30:12,760 --> 00:30:17,320 Speaker 1: would do then is discourage employers from taking the actions 452 00:30:17,400 --> 00:30:20,320 Speaker 1: they need to take to make sure that they're not 453 00:30:21,160 --> 00:30:25,320 Speaker 1: unnecessarily excluded and qualified people based on their race, you know. 454 00:30:25,320 --> 00:30:29,080 Speaker 1: And that's you know, from the beginning of the Affirmative 455 00:30:29,080 --> 00:30:32,560 Speaker 1: Action Executive Order in nineteen sixty five. The whole point 456 00:30:32,800 --> 00:30:35,800 Speaker 1: of this order and of this agency within the Department 457 00:30:35,800 --> 00:30:39,120 Speaker 1: of Labor was to encourage employers to take a hard 458 00:30:39,160 --> 00:30:43,040 Speaker 1: look at themselves and see whether what they were doing 459 00:30:43,320 --> 00:30:48,040 Speaker 1: was excluding qualified people based on race. And and the 460 00:30:48,080 --> 00:30:51,960 Speaker 1: goals are a core part of that. They're not quotas, 461 00:30:52,120 --> 00:30:55,360 Speaker 1: They're just a way of, you know, seeing how far 462 00:30:56,400 --> 00:31:00,400 Speaker 1: how far a company is from where it would be 463 00:31:00,440 --> 00:31:03,200 Speaker 1: if it were acting fairly, and a spur to taking 464 00:31:03,240 --> 00:31:07,160 Speaker 1: actions to remove unnecessary barriers. And that seems to be 465 00:31:07,240 --> 00:31:12,280 Speaker 1: again what Microsoft and Wells Fargo are doing here. And 466 00:31:12,720 --> 00:31:15,320 Speaker 1: I think the signal of the Trump administration is sending 467 00:31:15,760 --> 00:31:18,200 Speaker 1: is a scary one because what it would do is 468 00:31:18,680 --> 00:31:23,400 Speaker 1: discourage efforts to integrate American workplaces and to integrate the 469 00:31:23,480 --> 00:31:26,920 Speaker 1: management ranks of American workplaces, because remember that's really what 470 00:31:27,560 --> 00:31:31,240 Speaker 1: these investigations are about. We have companies who said, you know, 471 00:31:31,480 --> 00:31:34,200 Speaker 1: three percent of our managers, six percent of our managers 472 00:31:34,200 --> 00:31:38,680 Speaker 1: are African American, thirteen percent of Americans are African American. 473 00:31:38,760 --> 00:31:41,920 Speaker 1: Looks like there's something wrong here. Let's see what we 474 00:31:42,000 --> 00:31:44,840 Speaker 1: can do. What what are we doing that's stopping people 475 00:31:44,920 --> 00:31:47,640 Speaker 1: from being hired and advancing and employment to get to 476 00:31:47,720 --> 00:31:51,480 Speaker 1: that point. If we're committed to equal opportunity, that's something 477 00:31:51,520 --> 00:31:54,360 Speaker 1: we should want employers to do. Thanks for being on 478 00:31:54,400 --> 00:31:58,640 Speaker 1: the Bloomberg Law Show. That's Samuel bag Installs, a professor 479 00:31:58,640 --> 00:32:01,680 Speaker 1: at the University of Michigan Law School. And that's it 480 00:32:01,760 --> 00:32:04,280 Speaker 1: for the edition of the Bloomberg Law Show. Remember you 481 00:32:04,320 --> 00:32:06,320 Speaker 1: can always get the latest legal news by going to 482 00:32:06,360 --> 00:32:10,360 Speaker 1: our Bloomberg Law Podcast. You can find them on iTunes, SoundCloud, 483 00:32:10,520 --> 00:32:14,560 Speaker 1: or at Bloomberg dot com slash podcast Slash Law. I'm 484 00:32:14,640 --> 00:32:17,840 Speaker 1: June Grosso. Thanks so much for listening, and remember to 485 00:32:17,840 --> 00:32:20,239 Speaker 1: tune to The Bloomberg Law Show every weeknight at ten 486 00:32:20,320 --> 00:32:22,760 Speaker 1: pm Eastern right here on Bloomberg Radio.