WEBVTT - How Amy Coney Barrett Could Change the Law 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:06.400 --> 0:00:10.160 After four days of Supreme Court hearings, Judge Amy Coney 0:00:10.200 --> 0:00:12.959 Barrett is on her way to becoming the next justice 0:00:13.000 --> 0:00:16.400 on the Supreme Court. Barrett is an originalist like her 0:00:16.520 --> 0:00:21.119 mentor conservative icon Justice antonin Scalia, and she explained what 0:00:21.239 --> 0:00:26.040 that means. I interpret the Constitution as a law, that 0:00:26.200 --> 0:00:29.720 I interpret its texts as text, and I understand it 0:00:29.760 --> 0:00:32.560 to have the meaning that it had at the time 0:00:32.600 --> 0:00:36.160 people ratified it, so that meaning doesn't change over time, 0:00:36.159 --> 0:00:38.320 and it's not up to me to update it or 0:00:38.720 --> 0:00:42.040 infuse my own policy views into it. As has become 0:00:42.080 --> 0:00:46.080 the Norman Supreme Court nomination hearings, Barrett refused to answer 0:00:46.159 --> 0:00:49.680 questions about her views on abortion rights, voting rights, same 0:00:49.720 --> 0:00:52.920 sex marriage, gun rights, and even on some very basic 0:00:53.040 --> 0:00:56.280 legal principles. For example, does the prows and then have 0:00:56.400 --> 0:00:58.920 the authority to deny a person the right to vote 0:00:58.960 --> 0:01:01.960 based on their race. There was a lot of questioning 0:01:02.000 --> 0:01:05.800 about super precedents, generally meaning a case that's so well 0:01:05.880 --> 0:01:10.360 settled it can't be overruled. Judge Barrett defined several landmark 0:01:10.480 --> 0:01:13.959 Supreme Court cases as super president, such as Brown v. 0:01:14.040 --> 0:01:19.039 Board of Education, which struck down school segregation, Marlbury versus. Madison, 0:01:19.120 --> 0:01:23.400 which established the principle of judicial review, and Loving the Virginia, 0:01:23.520 --> 0:01:28.400 which invalidated prohibitions against interracial marriage. But she said Roe v. 0:01:28.560 --> 0:01:32.600 Wade was not a super precedent. Cases that are so 0:01:32.840 --> 0:01:36.920 well settled that no political actors and no people seriously 0:01:36.959 --> 0:01:39.400 pushed for their overruling. And I'm answering a lot of 0:01:39.480 --> 0:01:42.440 questions about Row, which I think indicates that wrote hasn't 0:01:42.440 --> 0:01:45.920 fall in that category. My guest is constitutional law professor 0:01:46.040 --> 0:01:50.160 Leah Littmann of the University of Michigan Law School. What's 0:01:50.200 --> 0:01:55.040 your general impression of her testimony. I think her testimony 0:01:55.040 --> 0:01:59.520 has been reviewing in small ways for people who know 0:01:59.560 --> 0:02:04.200 what to core. But she has studiously avoid saying anything 0:02:04.960 --> 0:02:09.799 about views or issues, and she's already expressed views. It's 0:02:09.800 --> 0:02:13.120 become typical for Supreme Court nominees. But Barrett refused to 0:02:13.160 --> 0:02:16.480 answer questions on a host of issues, even some she's 0:02:16.520 --> 0:02:20.679 expressed personal opinions on the past, such as abortion rights. 0:02:21.080 --> 0:02:25.720 Did she go further in avoidance than other nominees. I 0:02:25.760 --> 0:02:29.919 think she went further in the sense that unlike other nominees, 0:02:30.240 --> 0:02:36.600 she actually has expressed definitive views about whether Row is 0:02:36.639 --> 0:02:40.600 wrong and whether Row should be overruled, and so she 0:02:41.440 --> 0:02:45.680 doesn't have the ability to say I don't have views 0:02:45.880 --> 0:02:49.040 on that question, or you know, at the judge, I 0:02:49.080 --> 0:02:52.120 can't express views on them, given that her views are 0:02:52.120 --> 0:02:56.160 already out there. And so it's this odd disconnect between 0:02:57.000 --> 0:03:00.560 her views being out there, Republicans assisting she doesn't have 0:03:00.600 --> 0:03:04.400 any views, and Democrat being unable or unwilling to question 0:03:04.400 --> 0:03:08.200 her about this she has already expressed. Let's discuss this 0:03:08.320 --> 0:03:13.000 theory of super precedents. Is there a generally legally accepted 0:03:13.040 --> 0:03:17.080 principle of what constitutes a super precedent that shouldn't be 0:03:17.120 --> 0:03:21.079 reversed by the Supreme Court. I think what people do 0:03:21.520 --> 0:03:25.320 accept is that there are certain cases that the Supreme 0:03:25.320 --> 0:03:30.600 Court should not overrule. I think the court current legal 0:03:30.639 --> 0:03:36.080 test for what cases shouldn't be overruled involves considerations such 0:03:36.120 --> 0:03:39.280 as whether people have relied on that decision, whether they 0:03:39.320 --> 0:03:43.840 have shaped their lives around assuming that decision will continue 0:03:43.960 --> 0:03:49.640 to exist. The idea that precedents are not subject to 0:03:49.760 --> 0:03:56.840 being overruled merely because people don't disagree with them is 0:03:57.560 --> 0:04:02.760 something new. She has used that idea to deflect question 0:04:03.280 --> 0:04:07.480 about decisions about decisions such as a burg A Fell 0:04:07.600 --> 0:04:12.000 versus Hodges on marriage equality or Griswald versus Connecticut on 0:04:12.120 --> 0:04:15.720 access to conteception. She said there's just no chance that 0:04:15.840 --> 0:04:22.400 anyone would really frontily challenge those decisions today. But when 0:04:22.400 --> 0:04:26.760 she doesn't say the same about Row and Casey, she 0:04:26.960 --> 0:04:31.200 is making clear that in her view, on her understanding 0:04:31.320 --> 0:04:35.800 about what super precedent is, rowan Casey can be overruled, 0:04:36.040 --> 0:04:40.240 and she has explicitly called for their over ruling in 0:04:40.360 --> 0:04:45.760 earlier writings and appearances. I believe that even Justice Kavanaugh 0:04:45.880 --> 0:04:50.400 called Rowe precedent on precedent. Yes, that's correct. So he 0:04:50.560 --> 0:04:55.279 referred to the Supreme Court decision and planned Parenthood versus Stacy. 0:04:55.880 --> 0:04:58.760 That was a decision in which the Supreme Court said 0:04:58.920 --> 0:05:02.320 they will not over rule roversus Wade. He called that 0:05:02.400 --> 0:05:06.839 decision precedent on precedent. That's the decision that described when 0:05:07.040 --> 0:05:11.400 precedents shouldn't be overruled. It is precedent on when other 0:05:11.440 --> 0:05:15.680 precedents should be respected. She, however, has a view on 0:05:15.800 --> 0:05:19.560 precedent that does not track the Supreme Court precedent on 0:05:19.640 --> 0:05:24.160 precedent In Casey, her view seems to be that cases 0:05:24.200 --> 0:05:27.560 can be overruled as long as there are some people, 0:05:28.080 --> 0:05:32.680 or perhaps certain people, disagreeing with those decisions. I looked 0:05:32.680 --> 0:05:36.400 at her Law review article and she said there. In 0:05:36.480 --> 0:05:40.799 my view, however, super precedents do not illustrate a super 0:05:40.839 --> 0:05:45.080 strong effect of starry decisive at all. So is that 0:05:45.160 --> 0:05:50.000 an indication that even super precedents are reversible according to her? 0:05:50.480 --> 0:05:54.880 I think that's right. In her legal writings as an academic, 0:05:55.360 --> 0:06:00.160 she indicated that court's refusal to overturn certain decisions were 0:06:00.200 --> 0:06:05.279 incorrectly decided could itself violate the Constitution. So she doesn't 0:06:05.320 --> 0:06:08.480 think the mere fact that his decision isn't currently being 0:06:08.600 --> 0:06:14.000 questioned means that course shouldn't or couldn't overrule them. Far 0:06:14.120 --> 0:06:17.640 from this, she is instead using the concept of super 0:06:17.640 --> 0:06:22.279 precedent to deflect questions about certain areas of law. So 0:06:22.720 --> 0:06:27.000 from what she said and hasn't said about Row, can 0:06:27.040 --> 0:06:31.640 we conclude that she might vote to reverse Row. I 0:06:31.680 --> 0:06:35.039 think that that is a fair inference to draw from 0:06:35.080 --> 0:06:39.840 all of her prior writings and statements. Again, she has 0:06:40.000 --> 0:06:44.279 signed newspaper as calling for Row to be overturned. In 0:06:44.360 --> 0:06:47.400 her academic writing, she has made clear that she thinks 0:06:47.440 --> 0:06:52.480 the decision is Row was wrongly decided and equally important. 0:06:52.760 --> 0:06:55.560 As a judge on the Court of Appeals for the 0:06:55.600 --> 0:07:01.520 Seventh Circuits, she has embraced rulings that really fly in 0:07:01.640 --> 0:07:06.719 the face of existing Supreme Court precedents on abortion. She 0:07:06.960 --> 0:07:10.240 would have revisited a decision of the U. S. Court 0:07:10.280 --> 0:07:14.840 of Appeals that struck down an Indiana statute that required 0:07:14.920 --> 0:07:18.960 minors to obtain their parents to spent for obtaining abortions, 0:07:19.080 --> 0:07:21.880 and that statute did not contain what is called a 0:07:21.960 --> 0:07:27.040 judicial bypass provision, which allows minors to get a court 0:07:27.120 --> 0:07:31.440 determination that says you are able to make the decision 0:07:31.480 --> 0:07:34.480 about whether to have an abortion yourself and not notify 0:07:34.600 --> 0:07:40.080 your parents. Existing Supreme Court precedent says parental notification requirements 0:07:40.120 --> 0:07:44.320 are constitutional only if they contain a judicial bypass pervision, 0:07:44.680 --> 0:07:48.720 and yet Judge Barrett was willing to say this Indiana 0:07:48.720 --> 0:07:51.840 statute might be constitutional even though it does not have 0:07:51.920 --> 0:07:55.880 a judicial bypass provision. So, based on her decisions about 0:07:55.960 --> 0:07:59.640 respect for Supreme Court president on abortion, as well as 0:07:59.640 --> 0:08:03.720 her democt writings and advocacy, I think yes. All of 0:08:03.720 --> 0:08:08.040 the signs indicate she would overrule grow and other decisions 0:08:08.040 --> 0:08:11.200 protecting the right to an abortion. The Democrats focused on 0:08:11.240 --> 0:08:15.560 Obamacare throughout the hearings, and Barrett tried to distance herself 0:08:15.560 --> 0:08:20.040 from her past criticism of Chief Justice Robert's reasoning in 0:08:20.080 --> 0:08:25.200 the A c. A opinion. Did she succeed in explaining 0:08:25.400 --> 0:08:29.200 or showing that the case before the court now involves 0:08:29.280 --> 0:08:34.880 severability and so her past criticism is not relevant. I 0:08:34.920 --> 0:08:39.000 think she succeeded in some respects and failed in others. 0:08:39.160 --> 0:08:41.880 One thing she said is that the current challenge to 0:08:41.920 --> 0:08:46.120 the Affordable Care Act does not actually involve the protection 0:08:46.200 --> 0:08:50.160 for pre existing conditions. That's incorrect. The current case before 0:08:50.200 --> 0:08:54.000 the Supreme Court asks the Court to invalidate the entire 0:08:54.200 --> 0:08:58.960 Affordable Care Act, including its protection for pre existing conditions. Now, 0:08:58.960 --> 0:09:03.480 what she did say is that the legal question of sevorability, 0:09:03.840 --> 0:09:07.040 that is, whether the Court should invalidate the entire Affordable 0:09:07.120 --> 0:09:10.920 Care As if it concludes that the minimum coverage provision 0:09:10.960 --> 0:09:15.880 is unconstitutional. So that question is different from the part 0:09:15.960 --> 0:09:19.480 of the Chief Justice's opinion she was criticizing. But what 0:09:19.559 --> 0:09:22.600 she omitted is that the very first question in this 0:09:22.720 --> 0:09:25.200 Affordable Care Act case that the Supreme Court is going 0:09:25.240 --> 0:09:28.199 to hear in November is the same question that she 0:09:28.320 --> 0:09:32.640 criticized the Chief Justice for answering back in two thousand twelve. 0:09:33.000 --> 0:09:36.000 The question is whether the minimum coverage provision in the 0:09:36.040 --> 0:09:39.640 Affordable Care Act is constitutional? The Chief Justice that it was, 0:09:39.920 --> 0:09:42.839 and she criticized him for reaching that position. And that's 0:09:42.880 --> 0:09:45.240 the issue that the Court will take up in November. 0:09:45.720 --> 0:09:47.520 You said that if you know what to look for, 0:09:47.800 --> 0:09:51.120 you've got some hints. Are there other areas where you 0:09:51.200 --> 0:09:57.440 got some hints? About her philosophy? She called sexual orientation 0:09:57.559 --> 0:10:01.600 a sexual preference UM, even after editor Corono informed her 0:10:01.720 --> 0:10:05.599 about how that language is the meaning of LGBT couples. 0:10:05.640 --> 0:10:09.559 I think that UM and LGBT individuals. I think that 0:10:09.559 --> 0:10:15.520 that is revealing in her approach to LGBT rights. I 0:10:15.559 --> 0:10:20.200 think her at answers on issues of law of democracy 0:10:20.240 --> 0:10:23.320 were also revealing. So she refused to say whether the 0:10:23.360 --> 0:10:26.320 Constitution or federal laws just the president the authority to 0:10:26.400 --> 0:10:29.680 unilaterally delay a presidential election. She also refused to say 0:10:29.679 --> 0:10:33.840 whether voter intimidation is illegal. She refused to answer Senator 0:10:33.840 --> 0:10:37.679 Clobuchar's question about voting rights in the pandemic, and whether 0:10:37.720 --> 0:10:40.760 it was a threat to access to voting rights to 0:10:40.840 --> 0:10:43.319 force people to vote in person during the pandemic. And 0:10:43.360 --> 0:10:45.720 I think all of those answers, as well as some 0:10:45.800 --> 0:10:48.840 of her answers on other matters of reproductive justice, such 0:10:48.880 --> 0:10:52.800 as refusing to say whether in vitro fertilization was manslat 0:10:52.920 --> 0:10:55.520 or um, we're revealing to the kind of judge and 0:10:55.600 --> 0:10:58.480 justice that she is going to be. Barrett has embraced 0:10:58.600 --> 0:11:02.120 the judicial philosophy of a originalism and textualism of Justice 0:11:02.120 --> 0:11:05.920 Antonin Scalia, whom she clerked for. What does that tell 0:11:06.280 --> 0:11:10.720 us about her philosophy as a judge. I think her 0:11:10.880 --> 0:11:16.360 commitment to identifying herself with Justice Scalia tells us a 0:11:16.440 --> 0:11:20.160 lot about how she will vote on matters of reproductive justice. 0:11:20.280 --> 0:11:23.439 Jice Scalia, of course, called for Roe versus Way to 0:11:23.480 --> 0:11:27.000 be overruled. He likened the decision to the Supreme Court's 0:11:27.000 --> 0:11:31.800 Information decision and dread Scott forsus Stanford that held that 0:11:32.080 --> 0:11:35.800 the Constitution did not allow Congress to do anything about 0:11:35.840 --> 0:11:41.400 the institution of slavery um. It also brings her back 0:11:41.440 --> 0:11:44.080 to the Affordable Care Act, because, of course, Justice Scalia 0:11:44.200 --> 0:11:47.560 would have invalidated the entire Affordable Care Act in two 0:11:47.559 --> 0:11:52.160 thousand twelve, and so her identifying herself with Jfice Scalia's 0:11:52.200 --> 0:11:57.040 dresprudence calls to mind both of those key areas of law. 0:11:57.520 --> 0:12:02.040 Senator John Cornyn said, predicting how you might rule in 0:12:02.080 --> 0:12:05.400 a particular case, is that even possible? And she replied 0:12:05.440 --> 0:12:09.240 it's not possible. Are there ways to predict how justices 0:12:09.280 --> 0:12:12.319 will rule in a particular case or are we surprised 0:12:12.440 --> 0:12:16.640 enough that there aren't those ways. I think on some 0:12:16.720 --> 0:12:20.760 cases it might be difficult to predict exactly how justices 0:12:20.800 --> 0:12:23.559 will reach the results they do, and perhaps another case 0:12:23.679 --> 0:12:25.679 is difficult to predict how they will vote. But the 0:12:25.800 --> 0:12:29.760 reality is that in most of the high profile ideological 0:12:29.800 --> 0:12:34.200 cases that these confirmation hearings are focused on, the political 0:12:34.200 --> 0:12:37.600 party of the president who appoints a justice is extremely 0:12:37.640 --> 0:12:41.080 predictive about how a justice will vote. In fact, the 0:12:41.080 --> 0:12:45.040 Republican Party promised in its platform to only appoint justice 0:12:45.120 --> 0:12:48.960 who would overturn ro versus Wade and who would not 0:12:49.080 --> 0:12:51.240 vote to a foldy affordable care at if the chief 0:12:51.280 --> 0:12:53.640 Justice is and who would also question of burg offal 0:12:53.760 --> 0:12:57.319 versus conjects on marriage equality and they seem to think, 0:12:57.520 --> 0:13:00.079 the Republican Party, that is, that they can so le 0:13:00.320 --> 0:13:02.840 justices who will do those things they have promised to do. 0:13:02.920 --> 0:13:06.000 That Senator Josh Holly that he would not vote to 0:13:06.040 --> 0:13:09.120 confirm any nominee who he was not confident would not 0:13:09.360 --> 0:13:14.040 overturn Roe versus Ways, and he is confident in voting 0:13:14.040 --> 0:13:18.400 to confirm Justice Sit to the Supreme Court. So I 0:13:18.480 --> 0:13:22.560 think that Senator Cornin statement is out of death with 0:13:22.720 --> 0:13:26.800 the Republican Party understanding about how the selection of justices 0:13:27.200 --> 0:13:31.640 works and the reality about how the justices have voted 0:13:31.640 --> 0:13:34.680 in high profile and theological cases. So, when you have 0:13:34.840 --> 0:13:39.600 a nominee like this, who is very bright and has 0:13:39.960 --> 0:13:44.599 judicial experience, she's been a law school professor for decades, 0:13:45.559 --> 0:13:48.760 she is qualified? Is she not? She is qualified for 0:13:48.800 --> 0:13:51.360 the court? Is it harder to attack her because she 0:13:51.559 --> 0:13:55.840 is seemingly qualified for the court? Well, she's qualified in 0:13:55.880 --> 0:13:59.800 the sense that her credentials make her eligible to sir 0:14:00.360 --> 0:14:03.600 on the Supreme Court. But I think it's also safe 0:14:03.679 --> 0:14:06.640 to say that she has expressed views that are out 0:14:06.679 --> 0:14:10.000 of death with a majority of the United States. And also, 0:14:10.160 --> 0:14:14.240 and equally importantly, that her appointment itself is happening in 0:14:14.280 --> 0:14:17.200 a very unusual process, and so I think that the 0:14:17.200 --> 0:14:20.840 Democrats would be on strong ground pointing out that the 0:14:20.880 --> 0:14:23.920 appointment of a justice to the Sistreme Court as an 0:14:23.920 --> 0:14:28.800 election is underway after the Republican Party a Republican Senate 0:14:28.880 --> 0:14:32.160 has said justice should not be confirmed in an election 0:14:32.280 --> 0:14:35.920 year and blocked President Obama's not me during an election year. 0:14:36.320 --> 0:14:39.360 Those are very valid basis for opposing a nominee whose 0:14:39.440 --> 0:14:42.600 views on the law of democracy and reproductive justice are 0:14:43.080 --> 0:14:45.160 but very well known and also out of step with 0:14:45.320 --> 0:14:48.400 where a majority of Americans are today. This question, too 0:14:48.440 --> 0:14:51.960 is how much can you get from a judge writing 0:14:52.000 --> 0:14:55.200 a dissent. She wrote a dissent in a case where 0:14:55.440 --> 0:14:58.680 the court ruled that a felon did not have the 0:14:58.800 --> 0:15:01.480 right to get a gun in she her discent was 0:15:01.880 --> 0:15:04.240 he should have the right. So tell us about that 0:15:04.320 --> 0:15:07.800 descent and whether you can really read so much into 0:15:07.880 --> 0:15:13.120 a judge's descent. I think that descent is important for 0:15:13.280 --> 0:15:18.320 two reasons. First is it does make somewhat plain that 0:15:18.440 --> 0:15:22.800 her approach to the Second Amendment is more conservative than 0:15:23.320 --> 0:15:26.520 the majority of the Supreme Court. In the Supreme Court's 0:15:26.520 --> 0:15:30.000 decision in District of Columbia versus Power. Portions of the 0:15:30.040 --> 0:15:33.680 opinion indicated that the federal government and state governments could 0:15:33.720 --> 0:15:37.520 restrict the possession of firearms by persons with felony convictions. 0:15:37.560 --> 0:15:41.000 They noted that those prohibitions were long standing and likely constitutional. 0:15:41.360 --> 0:15:45.760 Judge Barrett, however, disagree. Equally important is what Judge Barrett 0:15:45.840 --> 0:15:48.800 said in that decision about voting rights. She went out 0:15:48.800 --> 0:15:51.280 of her way to note that the Second Amendment is 0:15:51.280 --> 0:15:54.680 an individual right and different from the right to vote. 0:15:55.120 --> 0:15:58.880 That is, she said the federal government couldn't prohibit all 0:15:58.920 --> 0:16:01.920 persons of felony can actions and owning firearms, but it 0:16:01.960 --> 0:16:05.960 could prevent persons of felony connections from voting. She called 0:16:06.240 --> 0:16:09.240 the right to vote not an individual right but diyok 0:16:09.320 --> 0:16:14.360 right limited to virtuous citizens. And that is revealing not 0:16:14.440 --> 0:16:17.360 only about her views on voting rights, but also about 0:16:17.360 --> 0:16:21.680 her willingness to go and decide issues that aren't directly 0:16:21.840 --> 0:16:24.360 before the court. She didn't have to weigh in on 0:16:24.840 --> 0:16:26.960 the scope of voting rights and a decision about the 0:16:26.960 --> 0:16:32.240 constitutionality of restrictions on firearm possession. Thanks for being the 0:16:32.240 --> 0:16:35.320 Bloomberg Lawn Show, Leah. That's Professor Leah Littman of the 0:16:35.400 --> 0:16:41.800 University of Michigan Law School, Microsoft and Wales Targo pledged 0:16:41.840 --> 0:16:44.960 to double their ranks of black leaders within five years. 0:16:45.520 --> 0:16:48.800 In response, they received letters from the US Labor Department 0:16:48.880 --> 0:16:52.480 asking how they would meet that commitment without discriminating on 0:16:52.520 --> 0:16:56.800 the basis of race. My guest is Samuel Baginstas a 0:16:56.880 --> 0:17:00.000 professor at the University of Michigan Law School. He served 0:17:00.120 --> 0:17:03.640 in the Jealics Departments Civil Rights Division. So what's the 0:17:03.680 --> 0:17:09.520 difference between affirmative action and discrimination in hiring. The phrase 0:17:09.560 --> 0:17:13.959 affirmative action really covers a whole lot of ground and 0:17:14.320 --> 0:17:17.960 sometimes a little bit confusing and misleading to to hear 0:17:18.000 --> 0:17:20.840 the phrase affirmative action. And it's core what it is 0:17:20.840 --> 0:17:24.480 is the idea that you want to make sure if 0:17:24.480 --> 0:17:27.479 you're running a business or a school, if you're an 0:17:27.480 --> 0:17:30.800 employer or whatever, you want to make sure that you're 0:17:30.840 --> 0:17:34.960 taking actions that don't unnecessarily exclude people based on their 0:17:35.040 --> 0:17:39.040 race or their sex, etcetera. And so you're taking steps 0:17:39.080 --> 0:17:43.359 to see the results of the actions you're taking and 0:17:43.480 --> 0:17:48.040 try to ensure that you get a sufficient representational qualified 0:17:48.080 --> 0:17:52.480 people in various positions. And so where this comes from, 0:17:53.000 --> 0:17:57.320 particularly in the employment setting UM is actually an executive 0:17:57.400 --> 0:18:01.400 order that Lyndon Johnson's side in nineteen five that explicitly 0:18:01.440 --> 0:18:06.000 ties affirmative action to non discrimination. Says employers have to 0:18:06.080 --> 0:18:11.520 take affirmative action to ensure that applicants and employees are 0:18:11.520 --> 0:18:14.920 treated without discrimination. So it shows if firma of action 0:18:15.000 --> 0:18:18.639 doesn't mean quotas. It doesn't mean, you know, putting a 0:18:18.680 --> 0:18:21.440 thumb on the scale for unqualified people. What it means 0:18:21.560 --> 0:18:24.959 is just making sure that you're not discriminating, and you know, 0:18:25.000 --> 0:18:29.400 consulting the results of your actions to check whether you're 0:18:29.440 --> 0:18:35.240 DISCRIMINATET So, Microsoft and Wells Fargo pledged to double the 0:18:35.359 --> 0:18:39.439 ranks of black leaders in their companies within five years. 0:18:39.520 --> 0:18:42.720 That was a target. Was there anything that you see 0:18:42.760 --> 0:18:46.600 that was wrong with them saying that? You know, if 0:18:46.640 --> 0:18:51.000 what they were doing is saying, no matter who applies, 0:18:51.200 --> 0:18:54.920 no matter what our pool is, you know, we are 0:18:55.480 --> 0:18:58.760 going to get to a certain number or certain percentage 0:18:59.160 --> 0:19:04.560 of African American managers. You know, that would very likely 0:19:04.600 --> 0:19:07.640 be a violation of the law. But that doesn't at 0:19:07.640 --> 0:19:10.160 all look like what they're doing. UM. What they're doing 0:19:10.200 --> 0:19:13.720 instead is saying, look, this is a goal we have. 0:19:14.040 --> 0:19:17.000 We have a goal of doubling our our percentage of 0:19:17.280 --> 0:19:22.320 African American managers UM. And those kinds of goals are 0:19:23.160 --> 0:19:26.320 really well entrenched in the law UM. And if you 0:19:26.359 --> 0:19:30.280 look at the programs that that Microsoft and Wales Fargo 0:19:30.359 --> 0:19:33.879 are adopting to make those goals real, you know, what 0:19:33.880 --> 0:19:36.679 they're doing is very very much in the realm of 0:19:36.720 --> 0:19:41.680 non discriminatory stuff. You know, they're working to expand their recruitment, 0:19:41.760 --> 0:19:45.320 to expand their pool. Uh, you know, exactly the kind 0:19:45.359 --> 0:19:47.840 of thing that we would want them to do to 0:19:47.880 --> 0:19:52.919 avoid discrimination. I think, you know, one interesting aspect of 0:19:52.960 --> 0:19:58.240 both Wells Fargo and Microsoft is that the very agency 0:19:58.280 --> 0:20:01.840 of the Department of Labor that has just sent them 0:20:01.920 --> 0:20:05.879 letters suggesting that they might be violating the law by 0:20:06.040 --> 0:20:10.439 setting a goal of improving minority representation and management. Just 0:20:10.600 --> 0:20:14.560 a couple of months ago, that same agency found each 0:20:14.800 --> 0:20:21.880 of these companies libel um for discriminating against African Americans 0:20:22.200 --> 0:20:25.359 in different ways. And so, you know, we have a 0:20:26.280 --> 0:20:31.320 pattern of past discrimination by each of these two companies 0:20:31.520 --> 0:20:34.520 that they're trying to overcome down. I think that's you know, 0:20:34.640 --> 0:20:38.280 something that they should get credit for, UM. But instead 0:20:38.720 --> 0:20:41.840 the Department of Labor is, you know, is acting in 0:20:41.880 --> 0:20:46.159 a sort of maddeningly inconsistent way, first whacking them for 0:20:46.280 --> 0:20:49.960 discriminating against African Americans and then threatening to whack them 0:20:50.040 --> 0:20:53.480 for trying to do something about in that the settlements, 0:20:53.480 --> 0:20:57.640 which were recent Microsoft paid three million dollars, Wells Fargo 0:20:57.760 --> 0:21:01.199 paid seven point eight millions. They did not admit that 0:21:01.240 --> 0:21:04.840 they had discriminated. Was it the Labor Department in the 0:21:04.840 --> 0:21:11.440 Trump administration that initiated that investigation into Microsoft and Wells Fargo? 0:21:11.680 --> 0:21:14.080 So it was it was the Trump administration that worked 0:21:14.080 --> 0:21:17.720 out the settlements. Um, but I believe the investigations were 0:21:17.760 --> 0:21:20.840 going on before the Trump administration. But you know, I 0:21:20.880 --> 0:21:24.640 think that just highlights, uh that what's going on here 0:21:24.880 --> 0:21:28.040 is as much about Trump as it is about just 0:21:28.160 --> 0:21:30.880 kind of straightforward enforcement of the law. I mean, it's 0:21:30.920 --> 0:21:35.280 not surprising that less than a month before the election, 0:21:35.520 --> 0:21:40.320 where the Trump administration is trying to gin up culture 0:21:40.320 --> 0:21:44.080 war issues, particularly around race. You know, you see this 0:21:44.240 --> 0:21:48.440 shot across the bow at two very large corporations. At 0:21:48.440 --> 0:21:52.120 the same time roughly that you see the you see 0:21:52.119 --> 0:21:56.560 the Trump administration suing Yale for its affirmative Action program 0:21:56.560 --> 0:21:59.760 and admissions. At the same time roughly that you see 0:21:59.760 --> 0:22:04.040 this new executive order from UH from President Trump that 0:22:04.400 --> 0:22:08.960 forbids federal contractors from doing certain kinds of diversity training 0:22:09.080 --> 0:22:13.440 that allegedly scapegoat or stereotype white people. Um, right, all 0:22:13.480 --> 0:22:16.520 of this is of a piece. It's it's all really 0:22:16.600 --> 0:22:20.080 political much more than it is about law enforcement. How 0:22:20.119 --> 0:22:23.359 odd is it that the Department of Labor sent out 0:22:23.400 --> 0:22:27.840 this letter to these two companies. It's odd that the 0:22:27.880 --> 0:22:33.359 Department of Labor is UH is asking these companies to 0:22:33.520 --> 0:22:38.080 justify actions that are very much the kind of actions 0:22:38.119 --> 0:22:42.280 that the Department of Labor's Office of Federal Contract Compliance 0:22:42.320 --> 0:22:47.000 Programs was set up to encourage companies to do. I 0:22:47.000 --> 0:22:49.240 mean the office of the Department of Labor that sent 0:22:49.320 --> 0:22:53.760 this letter. Their job is to encourage federal contractors to 0:22:53.840 --> 0:22:59.960 adopt affirmative action programs very much like the ones that Microsoft, 0:23:00.000 --> 0:23:02.920 often Wales, Fargo have adopted. And the idea that they're 0:23:02.920 --> 0:23:05.360 going to turn around now and say, oh, but once 0:23:05.440 --> 0:23:09.080 you've done that, that raises suspicions that you're violating the law. 0:23:09.600 --> 0:23:13.879 You know, it's just perverse and so so that's odd, 0:23:14.000 --> 0:23:16.600 and it's not odd that they send an investigated letter 0:23:16.640 --> 0:23:18.879 in general, that's how they open an investigation. But the 0:23:18.920 --> 0:23:23.800 substance of this investigation is very odd. Um, can the 0:23:23.880 --> 0:23:28.520 government just demand this information from federal contractors when there's 0:23:28.600 --> 0:23:31.600 no formal complaint. Well, you know, there have been a 0:23:31.680 --> 0:23:37.399 lot of fights recently over the Department of Labor's authority 0:23:37.800 --> 0:23:42.600 UM with regard to investigations uh in in in this 0:23:42.720 --> 0:23:47.440 precise area, and I think there's some lack of clarity. 0:23:47.480 --> 0:23:49.960 I think, you know, from the perspective of the Department 0:23:49.960 --> 0:23:53.000 of Labor, they've taken the position for a long time 0:23:53.080 --> 0:23:56.520 that they don't need a complaint uh to demand information, 0:23:57.119 --> 0:24:00.320 that this is part of their role in making sure 0:24:00.400 --> 0:24:05.720 that federal contractors are complying with the terms of the 0:24:05.800 --> 0:24:09.560 federal contract that require them not to discriminate and in 0:24:09.600 --> 0:24:13.040 fact to provide affirmative action. Again, you know, I think 0:24:13.359 --> 0:24:18.720 what's what's weird here is much more the substance of 0:24:18.760 --> 0:24:22.199 what they're asking about than the process and tell us 0:24:22.240 --> 0:24:27.040 about the Trump executive Order. So, a couple of weeks ago, 0:24:27.280 --> 0:24:32.680 President Trump signed an executive order which has this very 0:24:32.720 --> 0:24:37.840 innocuous title combating race and sex stereotyping. But what the 0:24:37.920 --> 0:24:44.120 executive order does is it forbids federal contractors from conducting 0:24:44.400 --> 0:24:50.480 workplace diversity and inclusion trainings that either promote race or 0:24:50.520 --> 0:24:55.160 sex stereotyping or promote race or sex scapegoating. And these 0:24:55.320 --> 0:24:59.600 terms race or sex stereotyping and racor sex scapegoating are 0:24:59.680 --> 0:25:03.600 defined on in the Executive Order in such a way 0:25:03.720 --> 0:25:09.040 that any training that teaches about the concept of white privilege, 0:25:09.160 --> 0:25:12.399 for example, would violate the terms of the order. Any 0:25:12.440 --> 0:25:16.600 training that teaches that people of particular races might have 0:25:16.840 --> 0:25:21.560 more unconscious or implicit or even explicit bias um with 0:25:21.600 --> 0:25:24.680 regard to other races might be in violation of the order. 0:25:24.800 --> 0:25:31.679 So it's really designed to stop this whole apparatus of 0:25:31.800 --> 0:25:35.600 workplace diversity and inclusion trainings UM. And again it's one 0:25:35.640 --> 0:25:39.000 of these culture war issues that President Trump, I think 0:25:39.040 --> 0:25:42.840 sees as a way of kind of promoting his re 0:25:43.000 --> 0:25:47.120 election among his base. Labor Department created telephone and email 0:25:47.200 --> 0:25:51.480 hotlines to report what you said offensive and anti American 0:25:51.640 --> 0:25:56.399 race and sex stereotyping scapegoating. Is that unusual for the 0:25:56.520 --> 0:26:00.359 for the Labor Department of hotlines like that, Well, you know, 0:26:00.440 --> 0:26:04.040 I think the Labor Department, like other federal enforcement agencies, 0:26:04.080 --> 0:26:07.840 will create hotlines when they when they're placing a very 0:26:07.920 --> 0:26:10.560 high priority on an enforcement issue, you know. And so 0:26:10.600 --> 0:26:14.160 I think it's just a sign that they are putting 0:26:14.160 --> 0:26:17.600 a priority on this. And and look, if they were 0:26:17.640 --> 0:26:21.199 to wait for written complaints, uh, they probably wouldn't be 0:26:21.240 --> 0:26:24.600 able to issue any press releases before the election about 0:26:25.119 --> 0:26:28.080 you know, diversity trainings they've taken down or threatened to 0:26:28.119 --> 0:26:32.000 take down. And so you know, if this is significantly 0:26:32.280 --> 0:26:36.040 about the election, much more than law enforcement in general, 0:26:36.480 --> 0:26:39.680 then you would expect them to have a hotline like this. Uh. 0:26:39.720 --> 0:26:41.959 You know. So again I think I think it's really 0:26:42.240 --> 0:26:45.199 something you have to look at in the context in 0:26:45.200 --> 0:26:48.160 which the Trump administration is acting. This is not just 0:26:48.320 --> 0:26:52.760 a technocratic law enforcement action. This is really about three 0:26:52.760 --> 0:26:56.600