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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: There's no place like home. There's no place like home.

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Speaker 1: Dorothy said it before, and the Supreme Court confirmed it

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Speaker 1: in a decision on Monday, there is no place like

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Speaker 1: the home, affirming the sanctity of the home from search

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Speaker 1: by police without a warrant. During oral arguments, the Justice

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Speaker 1: has had questioned whether the so called community caretaker exception

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Speaker 1: should allow police to enter a home without a warrant,

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Speaker 1: and Chief Justice John Roberts raised some interesting hypotheticals, ranging

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Speaker 1: from an elderly woman who hasn't been heard from to

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Speaker 1: a van go painting about to be damaged. The neighbors say,

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Speaker 1: she hasn't I haven't seen her all day. She didn't

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Speaker 1: come over for dinner. She's never late. Is that enough? Uh?

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Speaker 1: And they've got this fence around their yard. It's it's locked,

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Speaker 1: but there's a cat up in the tree. Can you

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Speaker 1: can you come and help you get the cap down?

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Speaker 1: Is that? Uh? Community caretaking? Okay? It's water dripping from above,

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Speaker 1: you know, in in someone's home and they happen to

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Speaker 1: own a van Gogh and the water is going to

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Speaker 1: ruin the painting is that compelling. In an unanimous decision,

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Speaker 1: the Justice is bolster the Fourth Amendment's protection of the

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Speaker 1: home against warrantless searches in a rather odd case involving

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Speaker 1: police seizing guns in a potentially suicidal man's home. Joining

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Speaker 1: me as former federal prosecutor George Newhouse of Richard's Carrington,

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Speaker 1: George tell us about the decision. So the decision that

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Speaker 1: Knniglia versus Strong, that's a couple of things. It reaffirms

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Speaker 1: that the home is a man's castle and has the

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Speaker 1: highest protection in the Fourth Amendment, So the right of privacy,

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Speaker 1: the Supreme Court has ruled nine zero, which is a

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Speaker 1: remarkable union amity indicates that the police have to be

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Speaker 1: very careful and cautious when entering the home for any

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Speaker 1: really any purpose where they don't have consent or there

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Speaker 1: isn't a clear what the law calls exigencies. And so

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Speaker 1: this case really was designed to test to see whether

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Speaker 1: another and earlier case called Katie versus Dombrowski would be extended.

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Speaker 1: In seventy three Supreme Court case where an officer found

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Speaker 1: a gun after he searched an impounded car that had

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Speaker 1: been involved in a traffic accident TOAD. And so the

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Speaker 1: court in that case in Katie articulated something that they

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Speaker 1: call the community caretaking exception, and that's a reference to

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Speaker 1: and it's true the police perform a remarkable number of

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Speaker 1: public safety type tasks that are not law enforcement oriented.

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Speaker 1: They're not searching for criminals. They're trying to protect people.

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Speaker 1: They're helping people who may be injured in their homes.

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Speaker 1: And of course, during the argument that justices were very

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Speaker 1: concerned that the police have ample authority to undertake these

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Speaker 1: public safety sort of exercises. But in this decision they

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Speaker 1: made it very clear and Condigulia has sort of unusual

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Speaker 1: facts that they can't just come into a house any

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Speaker 1: time that the police would like to, and they need

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Speaker 1: special circumstances and they need a high degree of articulable

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Speaker 1: reasonable though, so they have to have an objectively reasonable

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Speaker 1: basis for coming into the house, such as, for example,

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Speaker 1: to say, the elderly person who may have fallen and

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Speaker 1: injured themselves. So it's an important decision and interesting one,

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Speaker 1: very short written by Justice Thomas, and there are a

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Speaker 1: number of concurrences, but only by the conservative block. But

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Speaker 1: we didn't hear from any of the liberal justices. So

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Speaker 1: interesting decisions. Yeah for page opinion and then very short

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Speaker 1: concurring opinions as well, one written by Chief Justice John

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Speaker 1: Roberts with just a paragraph long. What were they trying

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Speaker 1: to do with these concurrences? Remember, a concurrence is not

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Speaker 1: the opinion of the court only to Justice Thomas wrote

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Speaker 1: that the concurrences the justices want to say. As also

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Speaker 1: Justice Kavanaugh wrote a concurring opinion, they're trying to say,

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Speaker 1: this is what the opinion does not say. So we

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Speaker 1: want to be very clear, Justice Roberts is very clear

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Speaker 1: that this decision is not interfering or impinging on the

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Speaker 1: ability of the police, acting as public safety personnel to

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Speaker 1: enter a home when they have a reasonable basis to

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Speaker 1: believe that someone requires their assistance or so of non

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Speaker 1: law enforcement purposes. That, of course, we heard extensively during

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Speaker 1: the argument and the facts of the case. Really there

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Speaker 1: was no reason for the police to go into Conniglia's house.

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Speaker 1: If you recall, he had an argument with his wife,

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Speaker 1: brought out a revolver, put in the table in front

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Speaker 1: of them, and then invited her to shoot him and

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Speaker 1: get it over with, an invitation which she declined. Left

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Speaker 1: the house and spent the night in the hotel. Then

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Speaker 1: when she called the next day, he wasn't answering the phone.

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Speaker 1: She was concerned had the police come with her, and

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Speaker 1: they found him on the front port, so there was

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Speaker 1: no longer any exigency or emergency. Conniglia said, you can

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Speaker 1: take me to the hospital, but don't take my guns.

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Speaker 1: There was no reason for the police to go into

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Speaker 1: Conniglia's house. Justice Alito talked about the issue of red

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Speaker 1: flag laws allowing gun seizures. Why did he bring that up?

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Speaker 1: That really wasn't an issue in this case, was it,

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Speaker 1: John is an excellent point. Now, it was not an

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Speaker 1: issue in this case, and I noticed it as well.

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Speaker 1: It's interesting that Justice Thomas, who wrote the opinion, is

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Speaker 1: probably the most profound advocate for Second Amenment rights, second

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Speaker 1: only to Justice Alito. Justice Alito was signaling in a concurrence.

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Speaker 1: When they say something like that, the Justice is saying,

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Speaker 1: this is something that we may come back to, and

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Speaker 1: he was clearly signaling to the community some of these

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Speaker 1: red flag laws, which are laws passed by the states

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Speaker 1: that make it possible for the states to come in

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Speaker 1: and seize firearms from persons, particularly persons who were experiencing

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Speaker 1: psychiatric difficulties and these laws. Justice Alito basically said, well,

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Speaker 1: this issue isn't before us today, but we may get

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Speaker 1: a case at the Supreme Court. And indeed he seemed

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Speaker 1: to be implying that he would welcome such a case.

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Speaker 1: So it's really an invitation for a further litigation on

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Speaker 1: Second Amendment rights and a court. Remember, this case involved

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Speaker 1: a man who had not committed a crime and who

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Speaker 1: the police went into his house and took his gun.

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Speaker 1: So I think I've got the attention of the justices

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Speaker 1: that are, shall we say, sensitive to the Second Amendment.

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Speaker 1: So this comes at a time when the police and

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Speaker 1: their powers have come under scrutiny, and this case had

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Speaker 1: civil liberties groups on both sides of the aisle agreeing.

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Speaker 1: The Americans of the Liberties Union, the Cato Institute in

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Speaker 1: the American Conservative Union Foundation joined in a brief. You

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Speaker 1: don't often see that very strange bedfellows indeed, and you're right,

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Speaker 1: it's really because the facts of the case were unusual.

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Speaker 1: The conservatives on those people that were concerned about gun

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Speaker 1: rights did not like the fact that the police were

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Speaker 1: coming in on their own without a court order. And

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Speaker 1: seizing firearms. And at the same time, the a c

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Speaker 1: ou was likewise concerned that anytime someone the police or

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Speaker 1: the public authorities go into a private house without consent,

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Speaker 1: they build their strong Fourth Amendment proponents. So it's interesting.

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Speaker 1: Fourth Amendment is one of the more interesting amendments because

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Speaker 1: it is one that sometimes particularly for example, Justice Scalia

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Speaker 1: was a very strong advocate of the Fourth Amendment, which

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Speaker 1: is to say, restricting the ability of the police or

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Speaker 1: law enforcement to inner homes or do other things that

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Speaker 1: might interfere with the Fourth Amendment. Right. So fourth Amendment

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Speaker 1: is a cherished amendment, and of course the home is

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Speaker 1: the epicenter of that amendment, so it gets the greatest protection.

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Speaker 1: And everyone in this case agreed. Yeah. Did that come

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Speaker 1: as a surprise to you that it was unanimous? Yes,

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Speaker 1: Actually it was. I think it will surprise a lot

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Speaker 1: of people whenever the Court in these stratified and divisive

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Speaker 1: times where the Court agrees nine zero and they may

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Speaker 1: be agreeing for slightly different reasons. Again that the justices

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Speaker 1: who were concerned about the Second Amendment, I don't like that,

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Speaker 1: and the other justices, of course are eager to or

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Speaker 1: keen on seeing that police powers are checked by by

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Speaker 1: the due process clause. Let me put a few scenarios

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Speaker 1: to you, and you tell me if this has any

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Speaker 1: relevance this decision. So, the next time a spouse called

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Speaker 1: the police and says, my husband is trying to kill

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Speaker 1: himself help, can police come in without a warrant? Yes,

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Speaker 1: that probably will be sufficiently objective, reasonable facts that will

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Speaker 1: justify the police, again acting in their public safety mode,

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Speaker 1: to enter the house, particularly if after that call, if

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Speaker 1: they go to the house and they knock and no

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Speaker 1: one answers the door, and no one is there to

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Speaker 1: give them consent, My belief is that would be sufficient

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Speaker 1: to allow the police to come in and ensure that

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Speaker 1: there has not been violence in the house. Again, one

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Speaker 1: of their primary roles public protection. The l A p

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Speaker 1: d S motto is to protect and serve. So this

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Speaker 1: protection role is key and has been key for a

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Speaker 1: number of years, which of course is one reason why

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Speaker 1: despite the controversy, all reasonable people realize that we need

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Speaker 1: the police. Indeed, we need them better trained, but we

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Speaker 1: need them to be able to do their job and

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Speaker 1: all capacities. So now another hypothetical, someone is running away

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Speaker 1: from the police hut pursuit runs into his home, can

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Speaker 1: the police follow him in? Absolutely? So that's the classic

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Speaker 1: exception called hot pursuit. So if the police have probable

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Speaker 1: cause to believe that if someone has robbed a bank

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Speaker 1: or has committed a crime, and they are pursuing that

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Speaker 1: person to apprehend him, they're doing that both to protect

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Speaker 1: the public, but they're doing that in their law enforce

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Speaker 1: of capacity. And that person goes into a house or

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Speaker 1: an apartment or a business, the police may follow and

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Speaker 1: they do not need a warrant, and they do not

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Speaker 1: need and of course can't necessarily stop to ask for consent.

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Speaker 1: So that hasn't changed, and that's one of the time

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Speaker 1: honored exceptions called hot pursuit. So does this case really

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Speaker 1: just leave the law as it was before the first

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Speaker 1: circuit went out on a limb and said that the

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Speaker 1: caretaker exception applies to the home. That's exactly right, and

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Speaker 1: that's really what the justices we're writing to emphasize that

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Speaker 1: this case does not engender any change in four am amateurisprudence.

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Speaker 1: There are at the moment about ten exceptions to the

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Speaker 1: warrant requirement, and one of them we really had called

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Speaker 1: it the administrative search, but you could call it community caretaker.

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Speaker 1: But the Court was really saying was there is no

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Speaker 1: special community caretaker exception. We're not endorsing what the first

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Speaker 1: Circuit did. That phrase is mentioned in Katie versus Dombrowski,

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Speaker 1: but Justice Alito was very careful to point out that

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Speaker 1: the Court did not endorse it. So they said, we're

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Speaker 1: not creating any new law here today. And really what

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Speaker 1: the Court was saying was, if you will, the exigency exception,

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Speaker 1: which is extremely broad meeting exigencies being when the police

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Speaker 1: are responding to emergencies, whether they're chasing a fleeing felon,

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Speaker 1: or there's a fire in a residence, or there's reasonably

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Speaker 1: that someone at a home or a business requires immediate

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Speaker 1: medical care or assistance, they are in no way restricted

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Speaker 1: from basically entering that an individual's home or residents to

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Speaker 1: provide the aid. So no no law has been changed.

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Speaker 1: A fourth and amateur students per this decision is the

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Speaker 1: same as it was before. Thanks George. That's George Newhouse

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Speaker 1: of Richard's Carrington. The Senate Judiciary Committee advanced five of

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Speaker 1: President Joe Biden's first judicial nominees today, bringing them one

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Speaker 1: step closer to confirmation. The list included Katangi Brown Jackson,

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Speaker 1: who's considered a potential Supreme Court nominee for the powerful

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Speaker 1: DC Appeals Court, joining me as Carl Tobias, a professor

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Speaker 1: at the University of Richmond Law School, tell us what

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Speaker 1: happened at the Senate Judiciary Committee. Well, it was better

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Speaker 1: than I had expected in many observers thought because some

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Speaker 1: Republicans voted for every nominee. The district nominees easily secured support.

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Speaker 1: One had a nineteen three vote, but the two appellate

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Speaker 1: nominees for the d C Circuit in the Seventh Circuit,

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Speaker 1: we're closer. Katangi Brown Jackson for DC Circuit had a

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Speaker 1: thirty nine vote and Candice Jackson Akawomi had a ten

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Speaker 1: vote for the Seventh Circuit. But still, at least there

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Speaker 1: was some body partisanship in all of the votes, so

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Speaker 1: that's a promising sign. And all of the nominees were

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Speaker 1: rated highly qualified by the A B A, the highest rating.

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Speaker 1: Why more division on the circuit court nominees? Is it

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Speaker 1: because their circuit court nominees or is it because of

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Speaker 1: who they are? It's both, but especially for the d

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Speaker 1: C Circuit which is the second most important court in

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Speaker 1: the country. And it's not a very well kept secret

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Speaker 1: that if President Biden has a Supreme Court vacancy, he

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Speaker 1: has promised that he would appoint a black woman, and

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Speaker 1: it certainly looks like Katangi Jackson would be that person.

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Speaker 1: So that's especially important. And the Seventh Circuit, of course,

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Speaker 1: is very important too. We know people of color on

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Speaker 1: the court. It covers large states Illinois, Indiana, Wisconsin in

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Speaker 1: the Midwest and receives many difficult, complicated cases. And of course,

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Speaker 1: you know that's basically your Supreme Court for the region,

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Speaker 1: the Seventh Circuit, for example, in which the court sits

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Speaker 1: because of Supreme Court grants so few petitions and so

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Speaker 1: it's critically important. And you know, there's so many, many,

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Speaker 1: many more district judges and they tend to make less

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Speaker 1: policy because they can't even bind judges in their own

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Speaker 1: courthouse with their rulings. Republican Center is Ted Cruz, Josh Holly,

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Speaker 1: and Ben Sas voted no on each nominee. I think

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Speaker 1: that's correct, and some of them aren't even there. They

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Speaker 1: just voted proxies. I think Sas was not there, So

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Speaker 1: we may expect that though, because certainly Cruise and Holly

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Speaker 1: have made no bones about their own ambitions to be

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Speaker 1: president in four and they are very local. I've spoken

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Speaker 1: and vigorous critics of President Biden and his nominees, and

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Speaker 1: so it's to be expected, and so it's not surprising

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Speaker 1: that they voted no. Senator Dick Durbin, who is the

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Speaker 1: chair of the committee, told Bloomberg he's fully prepared for

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Speaker 1: opposition from the panel's Republicans, particularly those positioning themselves for

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Speaker 1: a possible White House bid. As I look across the table,

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Speaker 1: with the exception of two or three Republicans, I'm facing

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Speaker 1: their most aggressive members. Has this become a high profile

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Speaker 1: a very high profile position. Is there a reason why

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Speaker 1: the most aggressive and possible presidential candidates from the GOP

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Speaker 1: or on this committee. Well, they probably choose to be

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Speaker 1: on that committee. And the issues that the committee takes

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Speaker 1: up are critically important. And remember, we saw three justices

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Speaker 1: appointed by the last administration, each of whom was controversial,

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Speaker 1: and the American people seem to be focused, especially after

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Speaker 1: the court granted certain the abortion case out of Mississippi

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Speaker 1: on the Supreme Court, and so it's not surprising that

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Speaker 1: presidential candidates gravitate to that committee, and they certainly have.

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Speaker 1: You've got Tom Cotton, You've got Ted Cruz, you have

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Speaker 1: Josh Holly and a number of others who are quite

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Speaker 1: conservative ideologically. And the committee takes up a number of

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Speaker 1: other issues. For example, all a number of the questions

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Speaker 1: about policing and criminal justice reform go through that committee

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Speaker 1: on the way to the floor. So it's an important

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Speaker 1: committee in terms of its subject matter. And then all

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Speaker 1: that it does, all the Justice Department political appointees have

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Speaker 1: to be confirmed and they come before the committee. All

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Speaker 1: the ninety four U s Attorneys, all of those important

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Speaker 1: positions um have to have the blessed of the committee.

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Speaker 1: And so there's a lot of hot button issues that

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Speaker 1: are addressed in that committee. Do progressive seem to be

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Speaker 1: more concerned about diversity of experience than racial diversity or

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Speaker 1: is it just that they know that Biden is going

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Speaker 1: to choose candidates who are racially diverse. Well, I think

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Speaker 1: Biden has said and Democrats, I think are committed to

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Speaker 1: having ethnic diversity on the courts. Because there was so

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Speaker 1: little done in the Trump administration. As Durban repeated again today,

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Speaker 1: President Trump couldn't manage to nominate a single black person

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Speaker 1: for the fifty four appellate judges he nominated and confirmed UH,

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Speaker 1: and Biden could manage to find three black women in

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Speaker 1: his first batch, two of whom were sent to the

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Speaker 1: floor today by the committee. And so I think that

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Speaker 1: you can have and I think Biden reflects in his

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Speaker 1: nominees UH and soon his appointees UM both ethnic, gender

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Speaker 1: and experiential diversity. UM and UM both UH circuit nominees

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Speaker 1: in dis batch, UH sent out a committee today. You

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Speaker 1: reflect that. So in the new batch, if confirmed, the

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Speaker 1: list includes Gustavo Guelpi, who would be the second Hispanic

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Speaker 1: judge to serve on the first Circuit Court of Appeals.

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Speaker 1: He's an interesting choice. He's the chief judge of the

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Speaker 1: District of Puerto Rico and he was an appointee of

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Speaker 1: George W. Bush. Do you often find presidents nominating judges

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Speaker 1: who have been appointed by presidents of the other party, Well,

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Speaker 1: not usually elevated to the appeals courts. But I assume

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Speaker 1: that UM, the White House is comfortable with the UM

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Speaker 1: wealth of experience fifteen years or more. Judge Gulpy has

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Speaker 1: and so UM wants to continue the tradition one Torriola

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Speaker 1: served with great distinction on the first Circuit and he

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Speaker 1: was from Puerto Rico. Uh. And there was a for

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Speaker 1: a brief moment a district judge from Puerto Rico whom

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Speaker 1: Trumpet appointed was nominated, but it was too late in

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Speaker 1: Trump's term to confirm that person. Um and UM. So

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Speaker 1: I think that the White House is comfortable with this person.

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Speaker 1: And uh he does have bring a wealth of experience.

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Speaker 1: Uh and he grew up I think, went to UH

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Speaker 1: college and law school in the US, but is from

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Speaker 1: Puerto Rico. And so nominated him. So the list of

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Speaker 1: the latest list of nominees bring Biden's total list of

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Speaker 1: proposed nominees to lifetime federal judicial appointments to nine, plus

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Speaker 1: one nominee to the DC Superior Court. But there are

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Speaker 1: more than one hundred judicial vacancies. Is Biden moving too slowly? Well,

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Speaker 1: I think he's moving methodically and systematically and just about

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Speaker 1: as quickly as possible with his third package. And they're

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Speaker 1: moving to the committee as we saw today. Hopefully we

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Speaker 1: might be confirmed even before the recess next week, this

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Speaker 1: group of five, but at least several of them would be.

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Speaker 1: And then they've had another hearing, and another hearing is

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Speaker 1: scheduled next week. So I think both the White House

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Speaker 1: and the Senate are moving the nominees. But you do

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Speaker 1: work against the calendar, as you're suggesting, Uh, and they

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Speaker 1: may try to step that up over the summer and

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Speaker 1: into the fall, UM, and I think they will. They're

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Speaker 1: partly waiting on senators to make their recommendations to the

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Speaker 1: White House, but those have been expedited it and so

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Speaker 1: I think we're likely to see larger packages more quickly

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Speaker 1: sent over to the Senate and hopefully quickly moved through

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Speaker 1: the Senate. But Um, the tradition is to have hearings

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Speaker 1: every two weeks, and with the various holidays and UM

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Speaker 1: work weeks that the Senate takes outside of Washington, it's difficult.

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Speaker 1: The calendar is tough, and so I think the White

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Speaker 1: House and Erman are doing all they can. UM. But

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Speaker 1: you're correct, Um, there are many vacancies right now. I

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Speaker 1: think the current vacancies they're seventy on the district bench

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Speaker 1: and seven I believe on the Appeals Court bench. UM.

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Speaker 1: But some will be filled next week. So there have

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Speaker 1: been two sets of hearings I believe of nominees in

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Speaker 1: the second one, it seemed as if the nominee's got

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Speaker 1: a few questions from the senators, there was little pushback.

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Speaker 1: And in the first one, as we just discussed before,

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Speaker 1: there was not very much pushed back from the senators,

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Speaker 1: and they avoided a lot of the divisive questions that

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Speaker 1: people had expected of the Republican senators. What's happening, Why

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Speaker 1: aren't they taking more interest in these lower court nominees. Well,

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Speaker 1: I that's a good point, especially you saw with the

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Speaker 1: district nominee votes today, who were mostly you know, nominated

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Speaker 1: recommended by senators because they can move the cases at

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Speaker 1: the district level and so. And they all five today

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Speaker 1: were rated highly qualified by the A, B, A, So

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Speaker 1: it's hard to oppose them. But I agree with what

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Speaker 1: you said about the two circuit nominees that were not

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Speaker 1: very many sharp questions. But part of that may reflect UM,

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Speaker 1: the Katangi Jackson's great skill and answering the questions, UM

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Speaker 1: and her great experience on the DC district and so,

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Speaker 1: UM and the fact she may well be a Supreme

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Speaker 1: Court nominee in the future. UM. And the same with

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Speaker 1: the seventh Circuit nominee. She was very skilled in answering

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Speaker 1: the questions, and so um it doesn't help to um

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Speaker 1: to ask sharp questions of nominees who have very responsive

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Speaker 1: answers if you're trying to score points, and so you

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Speaker 1: see some of that kind of dynamic. But by and large,

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Speaker 1: I think the district nominees are not going to be

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Speaker 1: controversial and the Republicans are going to vote for them

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Speaker 1: as they did today. So it's really the pellet nominees,

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Speaker 1: and there are fewer of those pellet vacancies right now,

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Speaker 1: so it isn't expected that the nominees that were advanced

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Speaker 1: will receive confirmation from the full Senate. Yes, yes, because um,

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Speaker 1: the it'st and so I assume the people who voted

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Speaker 1: yes on the GOP side Graham voted for both of

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Speaker 1: the circuit nominees will vote for them on the floor,

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Speaker 1: and that's all you need unless there is a Democratic defection,

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Speaker 1: and I don't see any reason why that would be

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Speaker 1: the case for either of these circuit nominees, so they'll

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Speaker 1: certainly go through. In the district nominees, of course, had

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Speaker 1: strong Republican support and committee, so they will have that

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Speaker 1: on the floor as well. Thanks Carl, that's professor Carl

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Speaker 1: Tobias at the University of Richmond Law School. And that's

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Speaker 1: it for this edition of The Bloomberg Law Show. I'm

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Speaker 1: June Grass. Thanks so much for listening, and remember to

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Speaker 1: tune to The Bloomberg Law Show weeknights at ten pm Eastern,

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Speaker 1: right here on Bloomberg Radio.