Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: After four days of Supreme Court hearings, Judge Amy Coney
Speaker 1: Barrett is on her way to becoming the next justice
Speaker 1: on the Supreme Court. Barrett is an originalist like her
Speaker 1: mentor conservative icon Justice antonin Scalia, and she explained what
Speaker 1: that means. I interpret the Constitution as a law, that
Speaker 1: I interpret its texts as text, and I understand it
Speaker 1: to have the meaning that it had at the time
Speaker 1: people ratified it, so that meaning doesn't change over time,
Speaker 1: and it's not up to me to update it or
Speaker 1: infuse my own policy views into it. As has become
Speaker 1: the Norman Supreme Court nomination hearings, Barrett refused to answer
Speaker 1: questions about her views on abortion rights, voting rights, same
Speaker 1: sex marriage, gun rights, and even on some very basic
Speaker 1: legal principles. For example, does the prows and then have
Speaker 1: the authority to deny a person the right to vote
Speaker 1: based on their race. There was a lot of questioning
Speaker 1: about super precedents, generally meaning a case that's so well
Speaker 1: settled it can't be overruled. Judge Barrett defined several landmark
Speaker 1: Supreme Court cases as super president, such as Brown v.
Speaker 1: Board of Education, which struck down school segregation, Marlbury versus. Madison,
Speaker 1: which established the principle of judicial review, and Loving the Virginia,
Speaker 1: which invalidated prohibitions against interracial marriage. But she said Roe v.
Speaker 1: Wade was not a super precedent. Cases that are so
Speaker 1: well settled that no political actors and no people seriously
Speaker 1: pushed for their overruling. And I'm answering a lot of
Speaker 1: questions about Row, which I think indicates that wrote hasn't
Speaker 1: fall in that category. My guest is constitutional law professor
Speaker 1: Leah Littmann of the University of Michigan Law School. What's
Speaker 1: your general impression of her testimony. I think her testimony
Speaker 1: has been reviewing in small ways for people who know
Speaker 1: what to core. But she has studiously avoid saying anything
Speaker 1: about views or issues, and she's already expressed views. It's
Speaker 1: become typical for Supreme Court nominees. But Barrett refused to
Speaker 1: answer questions on a host of issues, even some she's
Speaker 1: expressed personal opinions on the past, such as abortion rights.
Speaker 1: Did she go further in avoidance than other nominees. I
Speaker 1: think she went further in the sense that unlike other nominees,
Speaker 1: she actually has expressed definitive views about whether Row is
Speaker 1: wrong and whether Row should be overruled, and so she
Speaker 1: doesn't have the ability to say I don't have views
Speaker 1: on that question, or you know, at the judge, I
Speaker 1: can't express views on them, given that her views are
Speaker 1: already out there. And so it's this odd disconnect between
Speaker 1: her views being out there, Republicans assisting she doesn't have
Speaker 1: any views, and Democrat being unable or unwilling to question
Speaker 1: her about this she has already expressed. Let's discuss this
Speaker 1: theory of super precedents. Is there a generally legally accepted
Speaker 1: principle of what constitutes a super precedent that shouldn't be
Speaker 1: reversed by the Supreme Court. I think what people do
Speaker 1: accept is that there are certain cases that the Supreme
Speaker 1: Court should not overrule. I think the court current legal
Speaker 1: test for what cases shouldn't be overruled involves considerations such
Speaker 1: as whether people have relied on that decision, whether they
Speaker 1: have shaped their lives around assuming that decision will continue
Speaker 1: to exist. The idea that precedents are not subject to
Speaker 1: being overruled merely because people don't disagree with them is
Speaker 1: something new. She has used that idea to deflect question
Speaker 1: about decisions about decisions such as a burg A Fell
Speaker 1: versus Hodges on marriage equality or Griswald versus Connecticut on
Speaker 1: access to conteception. She said there's just no chance that
Speaker 1: anyone would really frontily challenge those decisions today. But when
Speaker 1: she doesn't say the same about Row and Casey, she
Speaker 1: is making clear that in her view, on her understanding
Speaker 1: about what super precedent is, rowan Casey can be overruled,
Speaker 1: and she has explicitly called for their over ruling in
Speaker 1: earlier writings and appearances. I believe that even Justice Kavanaugh
Speaker 1: called Rowe precedent on precedent. Yes, that's correct. So he
Speaker 1: referred to the Supreme Court decision and planned Parenthood versus Stacy.
Speaker 1: That was a decision in which the Supreme Court said
Speaker 1: they will not over rule roversus Wade. He called that
Speaker 1: decision precedent on precedent. That's the decision that described when
Speaker 1: precedents shouldn't be overruled. It is precedent on when other
Speaker 1: precedents should be respected. She, however, has a view on
Speaker 1: precedent that does not track the Supreme Court precedent on
Speaker 1: precedent In Casey, her view seems to be that cases
Speaker 1: can be overruled as long as there are some people,
Speaker 1: or perhaps certain people, disagreeing with those decisions. I looked
Speaker 1: at her Law review article and she said there. In
Speaker 1: my view, however, super precedents do not illustrate a super
Speaker 1: strong effect of starry decisive at all. So is that
Speaker 1: an indication that even super precedents are reversible according to her?
Speaker 1: I think that's right. In her legal writings as an academic,
Speaker 1: she indicated that court's refusal to overturn certain decisions were
Speaker 1: incorrectly decided could itself violate the Constitution. So she doesn't
Speaker 1: think the mere fact that his decision isn't currently being
Speaker 1: questioned means that course shouldn't or couldn't overrule them. Far
Speaker 1: from this, she is instead using the concept of super
Speaker 1: precedent to deflect questions about certain areas of law. So
Speaker 1: from what she said and hasn't said about Row, can
Speaker 1: we conclude that she might vote to reverse Row. I
Speaker 1: think that that is a fair inference to draw from
Speaker 1: all of her prior writings and statements. Again, she has
Speaker 1: signed newspaper as calling for Row to be overturned. In
Speaker 1: her academic writing, she has made clear that she thinks
Speaker 1: the decision is Row was wrongly decided and equally important.
Speaker 1: As a judge on the Court of Appeals for the
Speaker 1: Seventh Circuits, she has embraced rulings that really fly in
Speaker 1: the face of existing Supreme Court precedents on abortion. She
Speaker 1: would have revisited a decision of the U. S. Court
Speaker 1: of Appeals that struck down an Indiana statute that required
Speaker 1: minors to obtain their parents to spent for obtaining abortions,
Speaker 1: and that statute did not contain what is called a
Speaker 1: judicial bypass provision, which allows minors to get a court
Speaker 1: determination that says you are able to make the decision
Speaker 1: about whether to have an abortion yourself and not notify
Speaker 1: your parents. Existing Supreme Court precedent says parental notification requirements
Speaker 1: are constitutional only if they contain a judicial bypass pervision,
Speaker 1: and yet Judge Barrett was willing to say this Indiana
Speaker 1: statute might be constitutional even though it does not have
Speaker 1: a judicial bypass provision. So, based on her decisions about
Speaker 1: respect for Supreme Court president on abortion, as well as
Speaker 1: her democt writings and advocacy, I think yes. All of
Speaker 1: the signs indicate she would overrule grow and other decisions
Speaker 1: protecting the right to an abortion. The Democrats focused on
Speaker 1: Obamacare throughout the hearings, and Barrett tried to distance herself
Speaker 1: from her past criticism of Chief Justice Robert's reasoning in
Speaker 1: the A c. A opinion. Did she succeed in explaining
Speaker 1: or showing that the case before the court now involves
Speaker 1: severability and so her past criticism is not relevant. I
Speaker 1: think she succeeded in some respects and failed in others.
Speaker 1: One thing she said is that the current challenge to
Speaker 1: the Affordable Care Act does not actually involve the protection
Speaker 1: for pre existing conditions. That's incorrect. The current case before
Speaker 1: the Supreme Court asks the Court to invalidate the entire
Speaker 1: Affordable Care Act, including its protection for pre existing conditions. Now,
Speaker 1: what she did say is that the legal question of sevorability,
Speaker 1: that is, whether the Court should invalidate the entire Affordable
Speaker 1: Care As if it concludes that the minimum coverage provision
Speaker 1: is unconstitutional. So that question is different from the part
Speaker 1: of the Chief Justice's opinion she was criticizing. But what
Speaker 1: she omitted is that the very first question in this
Speaker 1: Affordable Care Act case that the Supreme Court is going
Speaker 1: to hear in November is the same question that she
Speaker 1: criticized the Chief Justice for answering back in two thousand twelve.
Speaker 1: The question is whether the minimum coverage provision in the
Speaker 1: Affordable Care Act is constitutional? The Chief Justice that it was,
Speaker 1: and she criticized him for reaching that position. And that's
Speaker 1: the issue that the Court will take up in November.
Speaker 1: You said that if you know what to look for,
Speaker 1: you've got some hints. Are there other areas where you
Speaker 1: got some hints? About her philosophy? She called sexual orientation
Speaker 1: a sexual preference UM, even after editor Corono informed her
Speaker 1: about how that language is the meaning of LGBT couples.
Speaker 1: I think that UM and LGBT individuals. I think that
Speaker 1: that is revealing in her approach to LGBT rights. I
Speaker 1: think her at answers on issues of law of democracy
Speaker 1: were also revealing. So she refused to say whether the
Speaker 1: Constitution or federal laws just the president the authority to
Speaker 1: unilaterally delay a presidential election. She also refused to say
Speaker 1: whether voter intimidation is illegal. She refused to answer Senator
Speaker 1: Clobuchar's question about voting rights in the pandemic, and whether
Speaker 1: it was a threat to access to voting rights to
Speaker 1: force people to vote in person during the pandemic. And
Speaker 1: I think all of those answers, as well as some
Speaker 1: of her answers on other matters of reproductive justice, such
Speaker 1: as refusing to say whether in vitro fertilization was manslat
Speaker 1: or um, we're revealing to the kind of judge and
Speaker 1: justice that she is going to be. Barrett has embraced
Speaker 1: the judicial philosophy of a originalism and textualism of Justice
Speaker 1: Antonin Scalia, whom she clerked for. What does that tell
Speaker 1: us about her philosophy as a judge. I think her
Speaker 1: commitment to identifying herself with Justice Scalia tells us a
Speaker 1: lot about how she will vote on matters of reproductive justice.
Speaker 1: Jice Scalia, of course, called for Roe versus Way to
Speaker 1: be overruled. He likened the decision to the Supreme Court's
Speaker 1: Information decision and dread Scott forsus Stanford that held that
Speaker 1: the Constitution did not allow Congress to do anything about
Speaker 1: the institution of slavery um. It also brings her back
Speaker 1: to the Affordable Care Act, because, of course, Justice Scalia
Speaker 1: would have invalidated the entire Affordable Care Act in two
Speaker 1: thousand twelve, and so her identifying herself with Jfice Scalia's
Speaker 1: dresprudence calls to mind both of those key areas of law.
Speaker 1: Senator John Cornyn said, predicting how you might rule in
Speaker 1: a particular case, is that even possible? And she replied
Speaker 1: it's not possible. Are there ways to predict how justices
Speaker 1: will rule in a particular case or are we surprised
Speaker 1: enough that there aren't those ways. I think on some
Speaker 1: cases it might be difficult to predict exactly how justices
Speaker 1: will reach the results they do, and perhaps another case
Speaker 1: is difficult to predict how they will vote. But the
Speaker 1: reality is that in most of the high profile ideological
Speaker 1: cases that these confirmation hearings are focused on, the political
Speaker 1: party of the president who appoints a justice is extremely
Speaker 1: predictive about how a justice will vote. In fact, the
Speaker 1: Republican Party promised in its platform to only appoint justice
Speaker 1: who would overturn ro versus Wade and who would not
Speaker 1: vote to a foldy affordable care at if the chief
Speaker 1: Justice is and who would also question of burg offal
Speaker 1: versus conjects on marriage equality and they seem to think,
Speaker 1: the Republican Party, that is, that they can so le
Speaker 1: justices who will do those things they have promised to do.
Speaker 1: That Senator Josh Holly that he would not vote to
Speaker 1: confirm any nominee who he was not confident would not
Speaker 1: overturn Roe versus Ways, and he is confident in voting
Speaker 1: to confirm Justice Sit to the Supreme Court. So I
Speaker 1: think that Senator Cornin statement is out of death with
Speaker 1: the Republican Party understanding about how the selection of justices
Speaker 1: works and the reality about how the justices have voted
Speaker 1: in high profile and theological cases. So, when you have
Speaker 1: a nominee like this, who is very bright and has
Speaker 1: judicial experience, she's been a law school professor for decades,
Speaker 1: she is qualified? Is she not? She is qualified for
Speaker 1: the court? Is it harder to attack her because she
Speaker 1: is seemingly qualified for the court? Well, she's qualified in
Speaker 1: the sense that her credentials make her eligible to sir
Speaker 1: on the Supreme Court. But I think it's also safe
Speaker 1: to say that she has expressed views that are out
Speaker 1: of death with a majority of the United States. And also,
Speaker 1: and equally importantly, that her appointment itself is happening in
Speaker 1: a very unusual process, and so I think that the
Speaker 1: Democrats would be on strong ground pointing out that the
Speaker 1: appointment of a justice to the Sistreme Court as an
Speaker 1: election is underway after the Republican Party a Republican Senate
Speaker 1: has said justice should not be confirmed in an election
Speaker 1: year and blocked President Obama's not me during an election year.
Speaker 1: Those are very valid basis for opposing a nominee whose
Speaker 1: views on the law of democracy and reproductive justice are
Speaker 1: but very well known and also out of step with
Speaker 1: where a majority of Americans are today. This question, too
Speaker 1: is how much can you get from a judge writing
Speaker 1: a dissent. She wrote a dissent in a case where
Speaker 1: the court ruled that a felon did not have the
Speaker 1: right to get a gun in she her discent was
Speaker 1: he should have the right. So tell us about that
Speaker 1: descent and whether you can really read so much into
Speaker 1: a judge's descent. I think that descent is important for
Speaker 1: two reasons. First is it does make somewhat plain that
Speaker 1: her approach to the Second Amendment is more conservative than
Speaker 1: the majority of the Supreme Court. In the Supreme Court's
Speaker 1: decision in District of Columbia versus Power. Portions of the
Speaker 1: opinion indicated that the federal government and state governments could
Speaker 1: restrict the possession of firearms by persons with felony convictions.
Speaker 1: They noted that those prohibitions were long standing and likely constitutional.
Speaker 1: Judge Barrett, however, disagree. Equally important is what Judge Barrett
Speaker 1: said in that decision about voting rights. She went out
Speaker 1: of her way to note that the Second Amendment is
Speaker 1: an individual right and different from the right to vote.
Speaker 1: That is, she said the federal government couldn't prohibit all
Speaker 1: persons of felony can actions and owning firearms, but it
Speaker 1: could prevent persons of felony connections from voting. She called
Speaker 1: the right to vote not an individual right but diyok
Speaker 1: right limited to virtuous citizens. And that is revealing not
Speaker 1: only about her views on voting rights, but also about
Speaker 1: her willingness to go and decide issues that aren't directly
Speaker 1: before the court. She didn't have to weigh in on
Speaker 1: the scope of voting rights and a decision about the
Speaker 1: constitutionality of restrictions on firearm possession. Thanks for being the
Speaker 1: Bloomberg Lawn Show, Leah. That's Professor Leah Littman of the
Speaker 1: University of Michigan Law School, Microsoft and Wales Targo pledged
Speaker 1: to double their ranks of black leaders within five years.
Speaker 1: In response, they received letters from the US Labor Department
Speaker 1: asking how they would meet that commitment without discriminating on
Speaker 1: the basis of race. My guest is Samuel Baginstas a
Speaker 1: professor at the University of Michigan Law School. He served
Speaker 1: in the Jealics Departments Civil Rights Division. So what's the
Speaker 1: difference between affirmative action and discrimination in hiring. The phrase
Speaker 1: affirmative action really covers a whole lot of ground and
Speaker 1: sometimes a little bit confusing and misleading to to hear
Speaker 1: the phrase affirmative action. And it's core what it is
Speaker 1: is the idea that you want to make sure if
Speaker 1: you're running a business or a school, if you're an
Speaker 1: employer or whatever, you want to make sure that you're
Speaker 1: taking actions that don't unnecessarily exclude people based on their
Speaker 1: race or their sex, etcetera. And so you're taking steps
Speaker 1: to see the results of the actions you're taking and
Speaker 1: try to ensure that you get a sufficient representational qualified
Speaker 1: people in various positions. And so where this comes from,
Speaker 1: particularly in the employment setting UM is actually an executive
Speaker 1: order that Lyndon Johnson's side in nineteen five that explicitly
Speaker 1: ties affirmative action to non discrimination. Says employers have to
Speaker 1: take affirmative action to ensure that applicants and employees are
Speaker 1: treated without discrimination. So it shows if firma of action
Speaker 1: doesn't mean quotas. It doesn't mean, you know, putting a
Speaker 1: thumb on the scale for unqualified people. What it means
Speaker 1: is just making sure that you're not discriminating, and you know,
Speaker 1: consulting the results of your actions to check whether you're
Speaker 1: DISCRIMINATET So, Microsoft and Wells Fargo pledged to double the
Speaker 1: ranks of black leaders in their companies within five years.
Speaker 1: That was a target. Was there anything that you see
Speaker 1: that was wrong with them saying that? You know, if
Speaker 1: what they were doing is saying, no matter who applies,
Speaker 1: no matter what our pool is, you know, we are
Speaker 1: going to get to a certain number or certain percentage
Speaker 1: of African American managers. You know, that would very likely
Speaker 1: be a violation of the law. But that doesn't at
Speaker 1: all look like what they're doing. UM. What they're doing
Speaker 1: instead is saying, look, this is a goal we have.
Speaker 1: We have a goal of doubling our our percentage of
Speaker 1: African American managers UM. And those kinds of goals are
Speaker 1: really well entrenched in the law UM. And if you
Speaker 1: look at the programs that that Microsoft and Wales Fargo
Speaker 1: are adopting to make those goals real, you know, what
Speaker 1: they're doing is very very much in the realm of
Speaker 1: non discriminatory stuff. You know, they're working to expand their recruitment,
Speaker 1: to expand their pool. Uh, you know, exactly the kind
Speaker 1: of thing that we would want them to do to
Speaker 1: avoid discrimination. I think, you know, one interesting aspect of
Speaker 1: both Wells Fargo and Microsoft is that the very agency
Speaker 1: of the Department of Labor that has just sent them
Speaker 1: letters suggesting that they might be violating the law by
Speaker 1: setting a goal of improving minority representation and management. Just
Speaker 1: a couple of months ago, that same agency found each
Speaker 1: of these companies libel um for discriminating against African Americans
Speaker 1: in different ways. And so, you know, we have a
Speaker 1: pattern of past discrimination by each of these two companies
Speaker 1: that they're trying to overcome down. I think that's you know,
Speaker 1: something that they should get credit for, UM. But instead
Speaker 1: the Department of Labor is, you know, is acting in
Speaker 1: a sort of maddeningly inconsistent way, first whacking them for
Speaker 1: discriminating against African Americans and then threatening to whack them
Speaker 1: for trying to do something about in that the settlements,
Speaker 1: which were recent Microsoft paid three million dollars, Wells Fargo
Speaker 1: paid seven point eight millions. They did not admit that
Speaker 1: they had discriminated. Was it the Labor Department in the
Speaker 1: Trump administration that initiated that investigation into Microsoft and Wells Fargo?
Speaker 1: So it was it was the Trump administration that worked
Speaker 1: out the settlements. Um, but I believe the investigations were
Speaker 1: going on before the Trump administration. But you know, I
Speaker 1: think that just highlights, uh that what's going on here
Speaker 1: is as much about Trump as it is about just
Speaker 1: kind of straightforward enforcement of the law. I mean, it's
Speaker 1: not surprising that less than a month before the election,
Speaker 1: where the Trump administration is trying to gin up culture
Speaker 1: war issues, particularly around race. You know, you see this
Speaker 1: shot across the bow at two very large corporations. At
Speaker 1: the same time roughly that you see the you see
Speaker 1: the Trump administration suing Yale for its affirmative Action program
Speaker 1: and admissions. At the same time roughly that you see
Speaker 1: this new executive order from UH from President Trump that
Speaker 1: forbids federal contractors from doing certain kinds of diversity training
Speaker 1: that allegedly scapegoat or stereotype white people. Um, right, all
Speaker 1: of this is of a piece. It's it's all really
Speaker 1: political much more than it is about law enforcement. How
Speaker 1: odd is it that the Department of Labor sent out
Speaker 1: this letter to these two companies. It's odd that the
Speaker 1: Department of Labor is UH is asking these companies to
Speaker 1: justify actions that are very much the kind of actions
Speaker 1: that the Department of Labor's Office of Federal Contract Compliance
Speaker 1: Programs was set up to encourage companies to do. I
Speaker 1: mean the office of the Department of Labor that sent
Speaker 1: this letter. Their job is to encourage federal contractors to
Speaker 1: adopt affirmative action programs very much like the ones that Microsoft,
Speaker 1: often Wales, Fargo have adopted. And the idea that they're
Speaker 1: going to turn around now and say, oh, but once
Speaker 1: you've done that, that raises suspicions that you're violating the law.
Speaker 1: You know, it's just perverse and so so that's odd,
Speaker 1: and it's not odd that they send an investigated letter
Speaker 1: in general, that's how they open an investigation. But the
Speaker 1: substance of this investigation is very odd. Um, can the
Speaker 1: government just demand this information from federal contractors when there's
Speaker 1: no formal complaint. Well, you know, there have been a
Speaker 1: lot of fights recently over the Department of Labor's authority
Speaker 1: UM with regard to investigations uh in in in this
Speaker 1: precise area, and I think there's some lack of clarity.
Speaker 1: I think, you know, from the perspective of the Department
Speaker 1: of Labor, they've taken the position for a long time
Speaker 1: that they don't need a complaint uh to demand information,
Speaker 1: that this is part of their role in making sure
Speaker 1: that federal contractors are complying with the terms of the
Speaker 1: federal contract that require them not to discriminate and in
Speaker 1: fact to provide affirmative action. Again, you know, I think
Speaker 1: what's what's weird here is much more the substance of
Speaker 1: what they're asking about than the process and tell us
Speaker 1: about the Trump executive Order. So, a couple of weeks ago,
Speaker 1: President Trump signed an executive order which has this very
Speaker 1: innocuous title combating race and sex stereotyping. But what the
Speaker 1: executive order does is it forbids federal contractors from conducting
Speaker 1: workplace diversity and inclusion trainings that either promote race or
Speaker 1: sex stereotyping or promote race or sex scapegoating. And these
Speaker 1: terms race or sex stereotyping and racor sex scapegoating are
Speaker 1: defined on in the Executive Order in such a way
Speaker 1: that any training that teaches about the concept of white privilege,
Speaker 1: for example, would violate the terms of the order. Any
Speaker 1: training that teaches that people of particular races might have
Speaker 1: more unconscious or implicit or even explicit bias um with
Speaker 1: regard to other races might be in violation of the order.
Speaker 1: So it's really designed to stop this whole apparatus of
Speaker 1: workplace diversity and inclusion trainings UM. And again it's one
Speaker 1: of these culture war issues that President Trump, I think
Speaker 1: sees as a way of kind of promoting his re
Speaker 1: election among his base. Labor Department created telephone and email
Speaker 1: hotlines to report what you said offensive and anti American
Speaker 1: race and sex stereotyping scapegoating. Is that unusual for the
Speaker 1: for the Labor Department of hotlines like that, Well, you know,
Speaker 1: I think the Labor Department, like other federal enforcement agencies,
Speaker 1: will create hotlines when they when they're placing a very
Speaker 1: high priority on an enforcement issue, you know. And so
Speaker 1: I think it's just a sign that they are putting
Speaker 1: a priority on this. And and look, if they were
Speaker 1: to wait for written complaints, uh, they probably wouldn't be
Speaker 1: able to issue any press releases before the election about
Speaker 1: you know, diversity trainings they've taken down or threatened to
Speaker 1: take down. And so you know, if this is significantly
Speaker 1: about the election, much more than law enforcement in general,
Speaker 1: then you would expect them to have a hotline like this. Uh.
Speaker 1: You know. So again I think I think it's really
Speaker 1: something you have to look at in the context in
Speaker 1: which the Trump administration is acting. This is not just
Speaker 1: a technocratic law enforcement action. This is really about three
Speaker 1: weeks before the election and the Trump administration is taking
Speaker 1: a bunch of steps to try to do what it
Speaker 1: thinks will motivate its base. But what happens if Joe
Speaker 1: Biden wins the election. Can these executive orders and the
Speaker 1: various enforcement efforts by the Labor Department be turned around quickly? Yes,
Speaker 1: they could be turned around very quickly. So, I mean
Speaker 1: the executive order could be eliminated with the stroke of
Speaker 1: a pen. It's just another executive order to rescind the
Speaker 1: Trump executive order. That's all that would be necessary. Uh,
Speaker 1: these investigations of Microsoft and Wells Fargo and any other
Speaker 1: companies that are out there. Uh, you know, all it
Speaker 1: would take is new leadership in the Labor Department taking
Speaker 1: a look at the facts and saying, you know, on
Speaker 1: the facts, we don't really think there's a violation here.
Speaker 1: And now I think a responsible new administration that came
Speaker 1: in would look at the facts and and make a
Speaker 1: decision based on that rather than just sort of reflectively
Speaker 1: saying anything Trump did was bad. So so we're reversing
Speaker 1: everything Trump did. But you know, from the looks of it,
Speaker 1: the facts suggest that there's not really a violation here,
Speaker 1: and what's really going on here is politics. And if
Speaker 1: that proves to be true, and the new administration finds that,
Speaker 1: they could end the investigations very quickly. Has the Labor
Speaker 1: Department in its outlook or enforcement changed under Eugene Scalia? Well,
Speaker 1: I think you know what we've seen under Eugene Scalia
Speaker 1: is uh much more centralization. Uh in the Secretary's office.
Speaker 1: Send in people close to the Secretary's office at the
Speaker 1: Labor Department. You know, he's been a very strong Secretary
Speaker 1: of Labor, uh in the sense that he really takes
Speaker 1: responsibility for running all of the department. Um. You know,
Speaker 1: and so I think there had been some concern under
Speaker 1: the prior secretary by folks in the Trump White House
Speaker 1: that may be the agenda of the Trump administration wasn't
Speaker 1: being effectively implemented, uh, in part because maybe Secretary Acosta
Speaker 1: wasn't as fully on board with the Trump agenda, and
Speaker 1: maybe in part because he wasn't as strong in terms
Speaker 1: of managing from a centralized management perspective. But Eugene Scalia
Speaker 1: has shown that he's a true member of the Trump
Speaker 1: team and that he is a very effective manager to
Speaker 1: implement the Trump agenda throughout the Lated Department. Do you
Speaker 1: think it's wiser for CEOs of these big companies not
Speaker 1: to announce targets for hiring, Well, I think that's what
Speaker 1: the Trump administration is trying to suggest with these actions, UM.
Speaker 1: And I think that would be a real shame, because,
Speaker 1: you know, it certainly looks like from the Trump administration's perspective,
Speaker 1: if you announce that you have a diversity goal at
Speaker 1: some point in the future that that it's going to
Speaker 1: create a target of a different type is to effectively
Speaker 1: paying a target on the back of the company um
Speaker 1: in a Department of Labor administrative investigation. And what that
Speaker 1: would do then is discourage employers from taking the actions
Speaker 1: they need to take to make sure that they're not
Speaker 1: unnecessarily excluded and qualified people based on their race, you know.
Speaker 1: And that's you know, from the beginning of the Affirmative
Speaker 1: Action Executive Order in nineteen sixty five. The whole point
Speaker 1: of this order and of this agency within the Department
Speaker 1: of Labor was to encourage employers to take a hard
Speaker 1: look at themselves and see whether what they were doing
Speaker 1: was excluding qualified people based on race. And and the
Speaker 1: goals are a core part of that. They're not quotas,
Speaker 1: They're just a way of, you know, seeing how far
Speaker 1: how far a company is from where it would be
Speaker 1: if it were acting fairly, and a spur to taking
Speaker 1: actions to remove unnecessary barriers. And that seems to be
Speaker 1: again what Microsoft and Wells Fargo are doing here. And
Speaker 1: I think the signal of the Trump administration is sending
Speaker 1: is a scary one because what it would do is
Speaker 1: discourage efforts to integrate American workplaces and to integrate the
Speaker 1: management ranks of American workplaces, because remember that's really what
Speaker 1: these investigations are about. We have companies who said, you know,
Speaker 1: three percent of our managers, six percent of our managers
Speaker 1: are African American, thirteen percent of Americans are African American.
Speaker 1: Looks like there's something wrong here. Let's see what we
Speaker 1: can do. What what are we doing that's stopping people
Speaker 1: from being hired and advancing and employment to get to
Speaker 1: that point. If we're committed to equal opportunity, that's something
Speaker 1: we should want employers to do. Thanks for being on
Speaker 1: the Bloomberg Law Show. That's Samuel bag Installs, a professor
Speaker 1: at the University of Michigan Law School. And that's it
Speaker 1: for the edition of the Bloomberg Law Show. Remember you
Speaker 1: can always get the latest legal news by going to
Speaker 1: our Bloomberg Law Podcast. You can find them on iTunes, SoundCloud,
Speaker 1: or at Bloomberg dot com slash podcast Slash Law. I'm
Speaker 1: June Grosso. Thanks so much for listening, and remember to
Speaker 1: tune to The Bloomberg Law Show every weeknight at ten
Speaker 1: pm Eastern right here on Bloomberg Radio.