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Speaker 1: When you may have Texas on a list, but that

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Speaker 1: wasn't enough for the Supreme Court to list Texas on

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Speaker 1: its docket. California bands government funded travel to Texas and

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Speaker 1: eleven other states it sees is having anti LGBTQ policies.

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Speaker 1: So the Lone Star state took its case against the

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Speaker 1: Golden State straight to the Supreme Court, but the court

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Speaker 1: turned Texas away. Joining me is Steve Sanders, a professor

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Speaker 1: at Indiana University's Mars School of Law. So Steve tell

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Speaker 1: us about this California law. So in TwixT California passed

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Speaker 1: a law that basically said that the state would not

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Speaker 1: pay for any state funded travel, in other words, traveled

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Speaker 1: by its employees or anyone else who has the tab

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Speaker 1: paid by the states taxpayers for travel to states which

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Speaker 1: have decided either to repeal protections for sexual orientation and

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Speaker 1: gender identity, or states that have carveouts. So, for example,

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Speaker 1: a state by Texas does not have a state wide

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Speaker 1: law that protects gay or lesbian or transgender people, but

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Speaker 1: a lot of cities in Texas do. But nonetheless Texas

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Speaker 1: law says even those cities have to have carve outs

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Speaker 1: that if somebody is motivated by religious belief, they may

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Speaker 1: continue to discriminate against LGBTQ people. For example, a social

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Speaker 1: services provider that has a contract with a Texas city

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Speaker 1: does not have to do business or does not have

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Speaker 1: to allow lgbt people to be clients or eligible for

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Speaker 1: its services. So California basically decided it was going to

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Speaker 1: try to punish these states to try to have an

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Speaker 1: impact on other states by depriving them of travel, business

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Speaker 1: and travel dollars from California. And so here we are

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Speaker 1: now a case where Texas wanted to sue California at

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Speaker 1: the United States Supreme Court. Is it unusual? Is what

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Speaker 1: California is doing unusual? Trying to evaluate what's happening in

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Speaker 1: other states and punish those states. So I'm not aware

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Speaker 1: of any other state that has tried to do this,

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Speaker 1: at least to this extent. And arguably it it does

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Speaker 1: violate some principles of federalism. You know, we think that

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Speaker 1: if if we take the idea of federalism seriously that

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Speaker 1: states should be laboratories of democracy, that what policies are

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Speaker 1: right for California aren't necessarily right for Texas or South

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Speaker 1: Carolina or Alabama, for example, This is California trying to

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Speaker 1: push the issue a little bit, essentially saying, we think

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Speaker 1: that rights for LGBTQ people are so important, and we

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Speaker 1: believe that the sort of carve outs that some of

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Speaker 1: these other states are providing from nondiscrimination laws are so

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Speaker 1: unjustified that we're going to go further. We're going to say,

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Speaker 1: not only if you're in California, do you have to

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Speaker 1: abide by our policies. We're going to say, we don't

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Speaker 1: want to even have our state taxpayer dollars associated with

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Speaker 1: you if you don't have the kinds of policies that

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Speaker 1: we believe you ought to have. And you can see

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Speaker 1: that if states got into this business a lot, it

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Speaker 1: would be hard to know what the stopping point is.

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Speaker 1: So some of the states that are the target of

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Speaker 1: California have past resolutions or done other things disapproving of

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Speaker 1: California's immigration policies or its taxing policies, and so it's

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Speaker 1: an interesting debate about what exactly federalism should mean. So

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Speaker 1: tell us what Texas has claimed against California. Are here

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Speaker 1: what its argument is. There are a couple of different

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Speaker 1: provisions in the Constitution which deal with the relationship of

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Speaker 1: states to each other. And so, for example, the Federal

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Speaker 1: Constitution has something called the Commerce Clause, which is understood

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Speaker 1: to put the authority to regulate interstate commerce broadly defined

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Speaker 1: in the hands of the federal government. And so if

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Speaker 1: states engage in activity that is protectionist or discriminatory against

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Speaker 1: the business interests or the economic interests of other states,

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Speaker 1: those kinds of laws can potentially be challenged by the

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Speaker 1: states that feel burdened by them. It's a principle that

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Speaker 1: we should have free movement of goods and people in

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Speaker 1: this country, and states shouldn't do things that are overtly

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Speaker 1: protectionist seeking to give an advantage to their own businesses

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Speaker 1: and economic interest over those of other states. And so

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Speaker 1: that was one theory that Texas brought. There's something in

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Speaker 1: the Constitution, it's called the Article for Privileges and Immunities

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Speaker 1: Clause that basically says one state can't treat the citizens

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Speaker 1: of other states disadvantageously or in a way that's worse

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Speaker 1: than they treat their own citizens. And finally, Texas brought

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Speaker 1: out a claim under the Fourteenth Amendment Equal Protection Clause,

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Speaker 1: which basically says that this is a violation of equal

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Speaker 1: protection for the equal protection rights of Texas citizens who

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Speaker 1: are being disadvantaged by California, that they're essentially their right

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Speaker 1: to have their religious liberty protected by Texas is being

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Speaker 1: infringed upon by californ What was California's response to this?

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Speaker 1: So California is essentially saying that given the very limited

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Speaker 1: scope that the Supreme Court has has given over the

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Speaker 1: years to these kinds of suits by one state against

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Speaker 1: another state, that essentially Texas itself as a state, as

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Speaker 1: a sovereign, couldn't claim a sufficient sort of injury. Now

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Speaker 1: Texas says it is suing essentially on behalf of the

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Speaker 1: citizens and businesses in its own state. States have what's

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Speaker 1: referred to as the parents patrii power, which is basically

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Speaker 1: the sort of government power to look out for and

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Speaker 1: protect welfare of its own citizens, its own subjects. But

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Speaker 1: California is essentially saying, look, if there are businesses or

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Speaker 1: economic interests in Texas that feel they are being disadvantaged,

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Speaker 1: then they can file a lawsuit that is a common

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Speaker 1: kind of suit under the Commerce Clause that is filed

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Speaker 1: when one state's policies are said to burden the people

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Speaker 1: in businesses and economic interests in another state. Typically it's

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Speaker 1: not the target state that sues. It is the people

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Speaker 1: who are most directly affected by the policy that say, hey,

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Speaker 1: California is exceeding the bounds of proper behavior under the Constitution.

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Speaker 1: So Steve Texas wanted to sue California directly at the

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Speaker 1: Supreme Court under what's called its original jurisdiction. Tell us

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Speaker 1: about that. Yeah, The vast majority of the cases that

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Speaker 1: the Supreme Court here's our appeals. They are cases that

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Speaker 1: come up from the federal circuit courts and the Supreme

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Speaker 1: Court decides there's an important enough question that it needs

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Speaker 1: to step in and resolve it, or sometimes cases that

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Speaker 1: come from state supreme courts but which contain a question

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Speaker 1: of federal law or Constitution law. But the Constitution's Article

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Speaker 1: three does provide a very limited category of cases that

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Speaker 1: the Supreme Court can hear under what's called its original jurisdiction.

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Speaker 1: That is, you come directly to the Supreme Court to

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Speaker 1: bio your case. You are not coming up through a

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Speaker 1: lower court or a state court in which you have

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Speaker 1: previously litigated. One of the very few categories of cases

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Speaker 1: for original jurisdiction are suits by one state against another state.

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Speaker 1: Presumably the framers thought those were so important and so

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Speaker 1: sensitive that lower federal courts, which are located in one

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Speaker 1: state or the other might have a bias, perhaps can't

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Speaker 1: be trusted to be even handed, and so that is

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Speaker 1: of such kind of cosmic significance potentially that only the

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Speaker 1: Supreme Court should hear it. The consequence is that the

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Speaker 1: Supreme Court turns down most of the cases where one

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Speaker 1: state is seeking to sue an the other states simply

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Speaker 1: declines to hear them. And the Supreme Court has not

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Speaker 1: only original jurisdiction over these cases, it has exclusive jurisdiction.

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Speaker 1: That means Texas can't go back to a federal district

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Speaker 1: court and violets lawsuit against California. It's the Supreme Court

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Speaker 1: or nothing for Texas soul. It turns out here the

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Speaker 1: Court's jurisdiction is not only original but exclusive, but it

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Speaker 1: may be exclusive that it's not mandatory. And so again

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Speaker 1: the Court believes it has the right to essentially decline

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Speaker 1: to hear a case like this if it wants to.

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Speaker 1: Do we have any idea why the Supreme Court turned

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Speaker 1: down this case, We can only speculate. And so when

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Speaker 1: when a Court declines to allow the filing of a complaint,

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Speaker 1: which is technically what this is called. In this instance,

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Speaker 1: they don't explain themselves if they don't issue an opinion,

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Speaker 1: They just issue online order that says Texas is request

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Speaker 1: to file it if complaint is denied. What we did

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Speaker 1: get though, was a fairly lengthy descent from Justice as

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Speaker 1: Alito and Thomas, and they were really careful not to

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Speaker 1: say that they have a side or they have a

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Speaker 1: particular view of the merits of Texas position. Justice Alito

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Speaker 1: and Justice Thomas are basically saying the Supreme Court doesn't

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Speaker 1: have discretion over something like this. Their interpretation both of

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Speaker 1: the Constitution and of the relevant federal statutes that govern

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Speaker 1: the jurisdiction of the Supreme Court. Their interpretation is the

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Speaker 1: Supreme Court doesn't have discretion, that this is the only

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Speaker 1: forum the Texas has available, and everybody should have at

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Speaker 1: least one chance to make their legal arguments. So unless

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Speaker 1: Congress changes the law and allows a state to file

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Speaker 1: a case like this in the lower court, their position

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Speaker 1: is the Supreme Court doesn't have the discretion to decline

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Speaker 1: to hear something like this, and that state sovereignty and

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Speaker 1: state dignity are sufficient enough interests that the Court should

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Speaker 1: take on this case. Now, the Court does here some

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Speaker 1: original jurisdiction cases, they're relatively rare. They typically involve things

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Speaker 1: like a boundary disputes or water rights or something like that.

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Speaker 1: It's much more rare for a sort of policy difference

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Speaker 1: like this to come to the Court under its original jurisdiction.

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Speaker 1: One could speculate that, you know, some of the justices

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Speaker 1: sort of just may have decided, you know, we're already

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Speaker 1: involved in culture war issues as it is. We're already

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Speaker 1: involved in enough issues related to LGBT key rights or

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Speaker 1: religious liberty or both that we don't need this case.

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Speaker 1: That perhaps this is just the Texas Attorney General, who

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Speaker 1: is pretty well known as an arch conservative and a

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Speaker 1: sort of national figure and conservative political circles. You know,

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Speaker 1: that he just wants to keep the pot boiling on

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Speaker 1: these religion and culture war issues, and you know, sort

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Speaker 1: of we don't need to be spending our time there.

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Speaker 1: If there is merit to this, other people in Texas

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Speaker 1: can find a way to sue over the policy and

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Speaker 1: come up through the courts through the normal process. It

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Speaker 1: struck me that California put Texas on the list after

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Speaker 1: it passed a law that lets foster care and adoption

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Speaker 1: organizations refused to work with same sex couples on religious grounds,

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Speaker 1: and gay adoptions are before the Court this term in

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Speaker 1: a very controversial, high profile case. So could it be

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Speaker 1: that the justices don't want to handle another case that

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Speaker 1: pits religious rights against gay rights. I think that's probably correct. Again,

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Speaker 1: I think that the Court has had regular encounters with

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Speaker 1: that issue. It has a case that it's about to

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Speaker 1: decide or issue an opinion on sometime in the next

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Speaker 1: month or two related to that issue. It comes out

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Speaker 1: of the City of Philadelphia and involves the Philadelphia Catholic

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Speaker 1: Charities Organization and whether a religious organization like that can

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Speaker 1: essentially take money from the government but then refused to

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Speaker 1: serve everybody still reserve the right to discriminate on the

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Speaker 1: basis of sexual orientation. Not too long ago, the Court

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Speaker 1: had a similar encounter with lgbt Q rights and religion

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Speaker 1: in the Masterpiece Cake Shop case. And so, um, you

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Speaker 1: know again, I think the the instinct of the Court

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Speaker 1: might be understandable to say, you know, there are times

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Speaker 1: when the sovereign dignity of a state is truly an issue.

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Speaker 1: This is more a policy spat a difference in opinion,

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Speaker 1: the difference in views. Maybe California is being heavy handed

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Speaker 1: here and essentially trying to not only govern its own citizens,

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Speaker 1: but trying to force people in other eates to come

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Speaker 1: around to California's point of view or suffer the potential

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Speaker 1: loss of travel money and tax revenue and so forth.

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Speaker 1: Maybe California is over reaching that the Court often takes

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Speaker 1: the position on cases that, look, politics is a messy business,

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Speaker 1: and there is a difference between issues of true constitutional

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Speaker 1: rights or true constitutional principle versus the messiness of politics.

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Speaker 1: And my guess is that a majority of the justices

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Speaker 1: saw this case is fitting into that latter category. Thanks

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Speaker 1: for being the Bloomberg Law shows, Steve. That's Steve Sanders,

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Speaker 1: a professor at Indiana University's Morris School of Law. President

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Speaker 1: Joe Biden has issued a second list of judicial nominees,

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Speaker 1: with nominees to the district courts in the Western District

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Speaker 1: of Washington and New Jersey. All three have backgrounds representing

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Speaker 1: non corporate clients, answering a call to add experiential diversity

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Speaker 1: to the bench. Joining me is professor Carl Tobias of

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Speaker 1: the University of Richmond Law School. Carl, what struck you

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Speaker 1: most about the latest list? Well, first, that the Biden

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Speaker 1: administration is continuing to expedite and plan well, Uh, it's

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Speaker 1: rollout of nominees uh. And continuing to do that after

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Speaker 1: the first extremely qualified, mainstream and diverse group of eleven. Uh.

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Speaker 1: These three, though, also show that the Biden administration is

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Speaker 1: studying wise priorities in terms of the vacancies it is

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Speaker 1: attempting to fill, because really the worst case scenario in

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Speaker 1: the country is the Western District of Washington. There were

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Speaker 1: two nominees for that court. The court has five vacancies

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Speaker 1: out of seven active judge ships, and that puts the

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Speaker 1: dream pressure on all of the other judges. And it

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Speaker 1: has been in that condition for some time, and so

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Speaker 1: all of those vacancies are emergencies and have been and

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Speaker 1: so it's very important to fill those as soon as possible.

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Speaker 1: And so the President sent forward to well qualified, mainstream,

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Speaker 1: diverse nominees for that court, and that's valuable. The other

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Speaker 1: nominee was the third nominee for six out of seventeen

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Speaker 1: vacancies on the New Jersey District Court, which have been

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Speaker 1: troubling the court for a long time. It UH is

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Speaker 1: suffering under six out of seventeen active judges being vacant UH,

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Speaker 1: and the pressure is enormous there too, And so it's

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Speaker 1: great that the administration is setting priorities in these courts

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Speaker 1: that are desperate to have their vacancy still. And so

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Speaker 1: that's really the singular thing I see in the second group.

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Speaker 1: Are these courts desperate because the Democratic senators in those

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Speaker 1: didn't step up to the plate to either work with

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Speaker 1: the White House under Trump or suggest nominees. Well, I

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Speaker 1: think the Senators tried very hard to cooperate with the

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Speaker 1: White House all four years, but they never could reach

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Speaker 1: agreement with the White House. And in fact, I think

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Speaker 1: it's the other way around. Trump and the White House

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Speaker 1: and the Justice Department did not reach out or try

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Speaker 1: to cooperate with the senators UM. But now it looks

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Speaker 1: like the White House is very much coordinating with UH

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Speaker 1: and seeking input from the Senators, and they have brought

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Speaker 1: forth very highly qualified nominees. For example, in this hearing

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Speaker 1: last week on Wednesday, of course too, UH nominees from

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Speaker 1: New Jersey were there and testified. And so they'll move

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Speaker 1: quickly through and provide some relief. And in the third nominee,

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Speaker 1: Christino hearn for that same district, was nominated just last week,

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Speaker 1: and I assume she'll move quickly as well. Progressives criticized

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Speaker 1: the New Jersey nominee for her work representing management and

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Speaker 1: said that the New Jersey Trial Court nominee is a

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Speaker 1: former corporate lawyer and a former federal prosecutor didn't fit

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Speaker 1: the professional diversity that the White House has asked for. Well,

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Speaker 1: every nominee is not going to satisfy everybody, as I

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Speaker 1: understand it. Oh, Hearne has several decades of valuable experience,

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Speaker 1: especially employment litigation. Uh. And almost all of the nominees

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Speaker 1: today have not been defended side civil attorneys but rather

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Speaker 1: uh former federal public defenders and uh not prosecutors either.

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Speaker 1: Uh and so uh it seems like the White House,

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Speaker 1: with the vast majority of nominees to date, is focusing

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Speaker 1: on experiential diversity. And if you look at the other two,

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Speaker 1: Domini said the hearing last week from New Jersey, you

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Speaker 1: can see that very clearly. Julian Niels, who was an

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Speaker 1: Obama appointee, who's the GOP majority in tam refused to confirm,

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Speaker 1: even though he came out of committee with a vote

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Speaker 1: UM and a first for the country. A Zahid uh Jureshi,

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Speaker 1: who is a magistrate judge in New Jersey, would be

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Speaker 1: the first Muslim appointed to the federal Old Bench. And

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Speaker 1: he has a wealth of experience in the military UH

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Speaker 1: and in the courts. And they both were well received

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Speaker 1: at the hearing by Democrats and Republicans. And so I

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Speaker 1: think that the administration is keeping its commitments in terms

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Speaker 1: of diversity in terms of ethnicity, gender, sexual orientation, and

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Speaker 1: experiential diversity. UM. But that doesn't mean there won't be

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Speaker 1: some well qualified mainstream UH nominees who UM have practiced

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Speaker 1: on the side of corporations m and but there have

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Speaker 1: been very few so far. Biden's first two Federal Appeals

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Speaker 1: Court nominees came before the Senate Judiciary Committee last week

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Speaker 1: for hearing. They described how their experience as public defenders

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Speaker 1: would influence their approach on the circuit court bench. The

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Speaker 1: spotlight was on Judge Katangi Brown Jackson, who currently says

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Speaker 1: as a Washington d C. Federal Trial Court judge. She's

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Speaker 1: nominated to the US Court of Appeals for the d C. Circuit,

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Speaker 1: and it's considered a potential favorite for Supreme Court vacancy.

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Speaker 1: I've been talking to Carl Tobias, a professor at the

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Speaker 1: University of Richmond Law School. Carl, the hearing turned out

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Speaker 1: to be pretty mild, even though before the hearing, conservative

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Speaker 1: activists were pointing to decisions that Jackson has made as

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Speaker 1: a federal trial court judge that were reversed on appeal,

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Speaker 1: But Republicans didn't really press her on that, and in fact,

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Speaker 1: it was a pretty mild hearing. Why do you think

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Speaker 1: the Republicans chose not to press her on any controversial

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Speaker 1: issues because she's such an excellent candidate. She has a

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Speaker 1: wealth of experience, uh in a whole number of different contexts.

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Speaker 1: She served on the Sentencing Commission. Republican senators praised her

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Speaker 1: for her quality work there, and she's been a district

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Speaker 1: judge in the District of DC in two thousand thirteen.

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Speaker 1: And I think the reason they didn't bring up her

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Speaker 1: reversals because there was such a tiny percentage. I think

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Speaker 1: the figure I saw was something like two or one percent,

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Speaker 1: and she's written some five hundred decisions, and so I

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Speaker 1: think the reason why they didn't attack her was that

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Speaker 1: she had answers for every question they asked. UM, and

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Speaker 1: so it was an amazing I think, very high quality performance,

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Speaker 1: straightforward and just saying she um is very independent as

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Speaker 1: a judge. When accused of writing the McGann opinion in

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Speaker 1: a way that would promote herselves, she just said, no,

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Speaker 1: I decide the cases on the facts and the law,

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Speaker 1: and um, I am completely independent of any administrations that

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Speaker 1: she had reversed, both Trump administration decisions and Obama administration decisions. UM.

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Speaker 1: And I just thought she was very persuas said, extremely articulate, clear,

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Speaker 1: um and engaging. But let's face it, in those hearings,

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Speaker 1: if you want to, you can always find something, some points,

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Speaker 1: some case to challenge the candidate with or to criticize

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Speaker 1: the candidate for. So might the Republican senators have been

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Speaker 1: trying to present a different appearance from that of the

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Speaker 1: Democratic senators during the hearings for Trump's circuit nominees. Well

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Speaker 1: maybe that I was wondering, as you suggest, why they

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Speaker 1: weren't more vigorous and rigorous in their questioning, But I

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Speaker 1: think it's more due to the high quality of the

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Speaker 1: nominees in that group, who were at the hearing, and

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Speaker 1: if you listen to their responses, they were responsive, clear,

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Speaker 1: and uh, what you would expect of an independent, excellent jurist.

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Speaker 1: And so it's difficult to lay a glove on somebody

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Speaker 1: who uh is so strong uh. And I think that

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Speaker 1: was the case with Judge Jackson, and I think it

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Speaker 1: was the case with the seventh Circuit nominee, and the

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Speaker 1: same with the three district nominees. They are all very strong. Um,

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Speaker 1: candid forthright, clear, um, exactly what I think you'd want

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Speaker 1: in an article three. Judge, I know that some of

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Speaker 1: the Republican Senators were critical of Demand Justice, and we're

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Speaker 1: painting this picture that Demand Justice is behind Biden's lists?

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Speaker 1: Is that the case? I mean, the Federalist Society was

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Speaker 1: behind Trump's lists? Is Demand Justice behind these lists? Well?

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Speaker 1: Demand Justice in American Constitution Society submitted suggested lists to

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Speaker 1: the White House. But that, as Democrats pointed out on

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Speaker 1: the committee, is strikingly in contrast to having someone like

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Speaker 1: Leonard Leo, executive vice president of the Federalist Society run

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Speaker 1: the circuit nominee operations for the Trump White House. That's

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Speaker 1: why we have fifty four extremely conservative Trump appointees now

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Speaker 1: sitting on the federal appeals courts, and that's different. That

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Speaker 1: was essentially outsourced to the Federalist Society UM by Trump,

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Speaker 1: and so I don't think Demand Justice has anything like

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Speaker 1: that kind of influence in this administration. It's being run

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Speaker 1: by Biden uh and his very qualified team of people

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Speaker 1: in the White House, starting with Diana Remus, the White

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Speaker 1: House Council, and of course the people of Justice Department

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Speaker 1: like Marrick Garland, who are not going to add force

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Speaker 1: to anybody. So UM. Turning to a different topic, Tomorrow

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Speaker 1: is the last day of the Supreme Court term, and

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Speaker 1: often when justice is retire they retire on the last

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Speaker 1: day of oral arguments. Sometimes they retire after all the

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Speaker 1: decisions are in. What are you hearing? What's the likelihood

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Speaker 1: of justice? Briar retiring of Demand Justice is really trying

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Speaker 1: to put the pressure on him. Well, I haven't heard

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Speaker 1: anything that you haven't heard or that hasn't been in

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Speaker 1: the public press. I do agree that a number of

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Speaker 1: individuals and groups are the guessing that Justice prior stepped down. UM,

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Speaker 1: But I think as Biden has himself has said, we're

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Speaker 1: not doing that. That's justice Briar's decision, and I think

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Speaker 1: that's the appropriate way to handle that. UM an important decision. Uh,

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Speaker 1: he's then devoted public servant, a fine justice, and UM,

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Speaker 1: I think he'll come to his own decision. I will

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Speaker 1: guess I'd be surprised if he were to do it tomorrow.

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Speaker 1: But there are other opportunities, as you suggest, and he

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Speaker 1: may see those depending on how he thinks this truth.

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Speaker 1: Thanks for being in the Bloomberg Laws Show, Carl. That's

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Speaker 1: Professor Carl Tobias of the University of Richmond Law School.

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Speaker 1: And that's it for this edition of the Bloomberg Law Show.

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Speaker 1: I'm June Grosso and you're listening to Bloomberg