WEBVTT - What Is a "True Threat" in Cyberstalking? 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.320 --> 0:00:13.039 Two and a half years of sending somebody unwanted emails 0:00:13.720 --> 0:00:16.680 when that person has consistently tried to block them and 0:00:16.760 --> 0:00:21.400 tried to stop them, some of those emails being pretty violent, 0:00:21.840 --> 0:00:26.400 die don't need you f off permanently. Others of those 0:00:26.480 --> 0:00:32.519 emails suggesting pretty strongly that he is watching the person. 0:00:33.320 --> 0:00:36.800 Only a couple of physical sightings. It was that you 0:00:37.040 --> 0:00:39.400 and the white cheap So I want to take it 0:00:39.440 --> 0:00:42.480 as a given that this can be objectively terrifying. 0:00:43.120 --> 0:00:46.800 Justics Elena Kagan described the online threats made to a 0:00:46.880 --> 0:00:51.280 Colorado musician for years, threats that made her so fearful that, 0:00:51.360 --> 0:00:54.320 after trying to block them and getting a protective order, 0:00:54.640 --> 0:00:59.720 she canceled planned performances. Billy Kounterman was convicted of stalking 0:00:59.800 --> 0:01:02.280 and sentenced to four and a half years in prison. 0:01:02.680 --> 0:01:06.720 The Supreme Court was considering Counterman's appeal and his argument 0:01:06.800 --> 0:01:09.240 that his speech should have been protected by the First 0:01:09.280 --> 0:01:13.840 Amendment because it wasn't what's known as true threats. Many 0:01:13.840 --> 0:01:17.240 of the justices indicated that the speaker's state of mind 0:01:17.400 --> 0:01:21.040 was important, and whether the speaker intended to cause fear. 0:01:21.319 --> 0:01:23.200 Here's Justice Sonya Sotomayor. 0:01:23.560 --> 0:01:28.080 But here the court and the prosecutor argued that the 0:01:28.120 --> 0:01:33.039 intent was irrelevant, that he couldn't present any evidence about 0:01:33.040 --> 0:01:36.040 his intent. Correct, that is exactly what about his mental 0:01:36.080 --> 0:01:39.640 state about what he thought? They precluded him completely from 0:01:39.680 --> 0:01:40.160 doing that. 0:01:40.480 --> 0:01:44.679 But several justices like Brett Kavanaugh expressed concerns about the 0:01:44.760 --> 0:01:49.760 implications for cases involving stalking, domestic violence, school threats, and 0:01:49.800 --> 0:01:52.600 the like if the court were to require an approach 0:01:52.720 --> 0:01:55.360 based on the speaker's intent, a. 0:01:55.360 --> 0:01:59.040 Defense like the one that would be present with your 0:01:59.080 --> 0:02:02.920 men's ree get too easy for someone to say, I 0:02:02.960 --> 0:02:05.600 was just joking, I was just kidding. And therefore threats 0:02:05.640 --> 0:02:10.320 that would be really quite dangerous in terms of leading 0:02:10.360 --> 0:02:12.600 to the next step of actually carrying through with the 0:02:12.639 --> 0:02:15.760 threat will not be addressed. 0:02:16.200 --> 0:02:19.280 Joining me is mc snaila, a partner with the Complex 0:02:19.320 --> 0:02:24.000 Appellate Litigation Group MC explain what's meant by a true threat. 0:02:24.400 --> 0:02:26.959 So, if it's determined to be a true threat, then 0:02:27.400 --> 0:02:30.720 the whole question of what the constitutional for which is 0:02:30.760 --> 0:02:33.720 where the prosecution sort of goes away saying, Okay, if 0:02:33.720 --> 0:02:36.560 it's a true threat, then we're not concerned about first 0:02:36.560 --> 0:02:41.120 A mement implications because we don't see societal value and 0:02:41.400 --> 0:02:45.120 protecting in that kind of speech, because we're more concerned 0:02:45.120 --> 0:02:48.080 in that context about individuals fear from violence. You know 0:02:48.120 --> 0:02:52.200 that that's speech and genders. So because of that value judgment, 0:02:52.480 --> 0:02:55.200 if it's a true threat, then we're outside of this 0:02:55.280 --> 0:02:57.520 whole question for cementa production. 0:02:57.720 --> 0:03:00.000 And what was the core issue in this case? 0:03:00.760 --> 0:03:03.520 In this case, the question is what kind of intent 0:03:03.680 --> 0:03:07.520 is required? As a constitutional matter? Is some kind of 0:03:07.639 --> 0:03:14.080 specific intent required to convict someone of stocking or crimes 0:03:14.160 --> 0:03:17.760 involving threats? And so if it is a true threat 0:03:17.880 --> 0:03:19.959 and we're outside that, you're not going to have any 0:03:20.000 --> 0:03:22.400 kind of requirement because the First Amendment doesn't put on 0:03:22.480 --> 0:03:25.880 another layer on top of the criminal statues or even 0:03:25.880 --> 0:03:28.880 the civil statutes. So that's the question really a narrow 0:03:28.960 --> 0:03:34.360 intent question, but it has major ramifications, as the State 0:03:34.400 --> 0:03:37.800 of Colorado and the Slister General pointed out at arguments 0:03:37.840 --> 0:03:41.480 of what kinds of crimes will would be able to 0:03:41.800 --> 0:03:45.520 charge and what kind of crimes will go unredressed if 0:03:45.520 --> 0:03:47.200 a specific intent is required. 0:03:47.800 --> 0:03:51.720 So in Colorado they look at whether the victim would 0:03:51.840 --> 0:03:55.680 reasonably experience the fear of physical violence because of the 0:03:55.800 --> 0:03:58.520 nature of the threats. So in Colorado they're taking it 0:03:58.520 --> 0:04:02.360 from the victim's point of view, and the defendant here says, 0:04:02.400 --> 0:04:04.480 you should take it from the defendant's point of view. 0:04:04.520 --> 0:04:07.560 What the defendants intent is, Well, it's kind. 0:04:07.440 --> 0:04:10.040 Of both counterman and council says, Okay, that's fine if 0:04:10.080 --> 0:04:14.080 you have this objective reasonable recipient of the thread test 0:04:14.400 --> 0:04:16.440 in the law, but you need more than that. You 0:04:16.480 --> 0:04:19.800 also need to look at what was the intent of 0:04:20.080 --> 0:04:25.280 the speaker. Did the speaker know in making her comments 0:04:25.400 --> 0:04:29.360 that the reasonable person receiving them would interpret them as 0:04:29.400 --> 0:04:32.480 being threatening or fear physical violence as a result of that, 0:04:32.920 --> 0:04:35.960 And so they're really arguing kind of both of those requires. 0:04:36.040 --> 0:04:39.440 So in this case, it's so over the top. She 0:04:39.560 --> 0:04:43.360 got a temporary restraining order, she stopped going outside. I mean, 0:04:43.440 --> 0:04:46.719 I don't understand how this could be considered not a 0:04:46.760 --> 0:04:47.400 true threat. 0:04:47.880 --> 0:04:51.720 Yeah, I mean, that's certainly what we argued in our 0:04:51.880 --> 0:04:54.480 Meekas brief, And what we pointed out was the importance 0:04:54.520 --> 0:04:58.440 of the constellation of behavior that stocking statues in particular 0:04:58.560 --> 0:05:02.520 usually require two or three threats or overt acts. It's 0:05:02.640 --> 0:05:06.000 the pattern itself that gives rise to the stocking charge 0:05:06.120 --> 0:05:10.400 or convictions. And here there were thousands of emails over 0:05:10.720 --> 0:05:15.200 many years and direct messages on Facebook to her, and 0:05:15.960 --> 0:05:18.440 many of those seemed to indicate that he might physically 0:05:18.480 --> 0:05:22.760 be tracking her also and had some threats within some 0:05:22.920 --> 0:05:26.480 of the discrete messages like die and things like that, 0:05:26.839 --> 0:05:29.800 which JEEF Justice Roberts pointed out it argument. But in 0:05:29.880 --> 0:05:33.440 his questions that argument, he took each of those statements 0:05:33.640 --> 0:05:38.200 that had particularly scary language in them and said, well, 0:05:38.360 --> 0:05:41.520 would someone interpret this as a threat. Couldn't it be 0:05:41.560 --> 0:05:44.920 interpreted in some other way? Don't we need more context? 0:05:45.400 --> 0:05:48.200 And the context that we argued, and that is really 0:05:48.279 --> 0:05:51.720 part of stocking and domestic violence is the entire context 0:05:51.839 --> 0:05:55.279 of that relationship and prior threats and prior behaviors. So, 0:05:55.320 --> 0:05:59.760 in other words, looking at one discrete direct message wouldn't 0:05:59.800 --> 0:06:02.400 be sufficient, because you'd have to look at the thousands 0:06:02.400 --> 0:06:06.360 of emails that happened despite her blocking this person on 0:06:06.400 --> 0:06:09.880 Facebook six times at least, thereby indicating hey, you know, 0:06:10.080 --> 0:06:12.880 don't reach out to me, and then the language in 0:06:12.920 --> 0:06:16.320 them escalates and indicates that there might be some physical 0:06:16.360 --> 0:06:18.560 stocking conduct going on with it. So when you look 0:06:18.560 --> 0:06:21.960 at it, particularly in the context of the whole constellation 0:06:22.640 --> 0:06:26.760 of threats and behaviors and the doggedness and determination that 0:06:26.800 --> 0:06:30.400 this particular person seemed to have in communicating with her, 0:06:30.760 --> 0:06:33.960 and some of the things that the Cloister General as 0:06:34.040 --> 0:06:36.680 a prosecutor themselves in these kinds of cases at the 0:06:36.680 --> 0:06:41.080 federal level and Colorado were pointing out was yeah, you know, 0:06:41.400 --> 0:06:43.040 we look at this whole constellation. 0:06:43.560 --> 0:06:44.560 What would we lose? 0:06:44.760 --> 0:06:47.600 That's what the justicees We're asking if we adopt each 0:06:47.600 --> 0:06:50.760 of your standards, what do we lose? What's the harm? 0:06:51.440 --> 0:06:57.119 And both the SG and Colorado said, well, you would 0:06:57.160 --> 0:07:01.360 lose prosecutions or even charging the decisions by us, because 0:07:01.400 --> 0:07:04.920 we charge only when we think we're going to get 0:07:04.920 --> 0:07:08.520 a conviction, because otherwise we're very concerned that the victim 0:07:08.600 --> 0:07:12.160 of these of stocking will feel that the law cannot 0:07:12.200 --> 0:07:16.240 protect her, and so we only charge in the most 0:07:16.280 --> 0:07:19.600 egregious situations when we think we're very sure we can 0:07:19.640 --> 0:07:23.120 get a conviction. And if you layer on some kind 0:07:23.160 --> 0:07:26.680 of specifican tounch requirement, there are a lot of what 0:07:26.720 --> 0:07:31.680 the SU called sort of you know, delusional or dbs 0:07:31.720 --> 0:07:35.240 stockers who go just close to the line to something 0:07:35.280 --> 0:07:41.960 that's actually threatening physical violence or like counterman. They claim, oh, 0:07:42.080 --> 0:07:44.320 you know, we thought we were okay, you know, we 0:07:44.680 --> 0:07:46.400 didn't know. We didn't know that they didn't want to 0:07:46.440 --> 0:07:49.320 hear from us, even though to someone who was of 0:07:49.720 --> 0:07:53.720 reasonable mind would certainly have concluded that this person did 0:07:53.760 --> 0:07:54.480 not want to hear from you. 0:07:54.840 --> 0:07:56.720 It's just so surprising to me that they use this 0:07:56.880 --> 0:07:59.520 case to try to get this issue out there. 0:07:59.800 --> 0:08:02.240 Yeah, I agree with you do, and that's what we 0:08:02.280 --> 0:08:04.800 were kind of scratching our heads about too, because there 0:08:04.880 --> 0:08:07.600 was discussion about that, and certainly to me it was 0:08:07.600 --> 0:08:10.240 a really red flag. In the acl use brief, they 0:08:10.320 --> 0:08:13.080 drop a footnote saying nothing we say here would impact 0:08:13.280 --> 0:08:17.480 stocking convictions for conduct, and just the scurse that was 0:08:17.520 --> 0:08:20.200 trying to choose that to saying, oh, well, charges for 0:08:20.360 --> 0:08:23.800 stocking conduct wouldn't be impacted by whatever standard we put here. 0:08:24.080 --> 0:08:27.320 But that presupposes that somehow stokers just limit themselves to 0:08:27.360 --> 0:08:29.880 one behavior. You know, most of them. There's a gradation 0:08:30.040 --> 0:08:35.120 from cyber stocking like this gentleman, to physical stocking of 0:08:35.160 --> 0:08:39.200 your house or home, to a whole wide variety of 0:08:39.320 --> 0:08:42.040 things in between. And it's not like they just select 0:08:42.120 --> 0:08:45.040 one method. So that's a little little bit of a dichotomy. 0:08:45.040 --> 0:08:47.960 I think that doesn't actually happen in real life. But 0:08:48.120 --> 0:08:51.600 I think that also this balancing and these challenges on 0:08:51.679 --> 0:08:56.760 each side. I mean, Essice Tavanaugh and Justice Tagan seemed 0:08:56.840 --> 0:08:59.440 to be very sympathetic to the to Colorado's and the 0:08:59.520 --> 0:09:03.360 SGUs learned about this and seem to consider, well, this 0:09:03.400 --> 0:09:05.440 seems like true thrust to us, dude. 0:09:05.480 --> 0:09:09.440 Most of the justices seem to be leaning toward the 0:09:09.480 --> 0:09:14.400 notion that the speaker's intent is important. Justice Sodo Mayors 0:09:14.480 --> 0:09:18.439 said that this Colorado man convicted of stalking wasn't given 0:09:18.440 --> 0:09:21.880 the opportunity to explain the intention behind the speech. 0:09:22.640 --> 0:09:25.880 Yeah, that was an interesting part of the argument, which 0:09:26.080 --> 0:09:29.240 was the difference between being allowed to testify and explain 0:09:29.320 --> 0:09:32.040 whatever you want to explain in a case like this 0:09:32.400 --> 0:09:36.440 and having that be an element or a requirement that 0:09:36.559 --> 0:09:40.520 the prosecution proved that you specifically intended something. In other words, sure, 0:09:40.559 --> 0:09:42.160 you can go up and say that if you like, 0:09:42.400 --> 0:09:44.800 but as a First Amendment matter, you know, it's not 0:09:44.920 --> 0:09:48.360 required for the prescution to prove that kind of intent 0:09:48.440 --> 0:09:52.200 beyond a reasonable doubt. That discussion came up because in 0:09:52.240 --> 0:09:56.200 this particular case, as a result of the conclusion that 0:09:56.240 --> 0:09:59.200 there was no First Amendment requirement for this specific intent. 0:09:59.320 --> 0:10:03.600 According this case ended up not allowing Tuntermen to testify 0:10:03.880 --> 0:10:07.240 about what he meant or didn't mean in this circumstance. 0:10:07.480 --> 0:10:10.040 Perhaps there might have been another reason they didn't do that, 0:10:10.120 --> 0:10:13.880 which is that he had two prior convictions for stocking 0:10:14.000 --> 0:10:16.520 other women, one of which had ended up in violence. 0:10:16.559 --> 0:10:18.600 So perhaps they wouldn't want that to come out. 0:10:18.840 --> 0:10:21.120 So does it seem as if the justices are going 0:10:21.160 --> 0:10:24.240 to end up requiring some kind of proof of intent 0:10:24.520 --> 0:10:25.360 in these cases? 0:10:25.720 --> 0:10:29.680 There was one possible somewhat middle ground, which was a 0:10:29.679 --> 0:10:31.840 ground that we urged. If the court is going to 0:10:31.880 --> 0:10:34.439 require some kind of intent as a First Amendment matter, 0:10:34.720 --> 0:10:38.040 that at the most it should require a recklessness standard, 0:10:38.120 --> 0:10:41.880 a recklessness standard rather than specific intent with regard to 0:10:41.960 --> 0:10:45.080 knowledge as to whether what they were doing would cause 0:10:45.120 --> 0:10:49.640 a reasonable person to bear violence. So that's an alternate 0:10:49.640 --> 0:10:52.600 standard also that the SG urged, and so that got 0:10:52.600 --> 0:10:55.080 a lot of airtime at argument in terms of would 0:10:55.080 --> 0:10:58.319 this be something that you might be a middle ground 0:10:58.400 --> 0:11:02.520 for The justices said in Maor, Gorsich and Alito, who 0:11:02.600 --> 0:11:06.520 seemed maybe somewhat skeptical of not having any intech requirement 0:11:06.559 --> 0:11:09.199 at all, and then those like Higgan and Kabnaugh who 0:11:09.240 --> 0:11:13.480 were sympathetic to the question of would you be impeding 0:11:13.679 --> 0:11:17.679 prosecutions if you required some kind of specificond time. 0:11:18.200 --> 0:11:21.640 It's an important case. Thanks so much, EMC. That's mc 0:11:21.840 --> 0:11:27.160 sun Gaila of the Complex Appellate Litigation Group. The Senate 0:11:27.240 --> 0:11:32.480 Judiciary Committee advanced seven Biden judicial nominees with bipartisan support, 0:11:32.720 --> 0:11:36.880 while skipping more controversial votes on others. As Democratic Senator 0:11:36.920 --> 0:11:41.120 Dianne Feinstein remains out for health reasons, joining me is 0:11:41.240 --> 0:11:45.000 judiciary expert Carl Tobias, a professor at the University of 0:11:45.120 --> 0:11:49.440 Richmond Law School. Senator Dianne Feinstein has been home in 0:11:49.520 --> 0:11:54.360 California for nearly two months after about with shingles. How 0:11:54.440 --> 0:11:57.239 is that affecting the president's judicial picks. 0:11:57.760 --> 0:12:01.880 Well, there's a lot of talk by different outlets in 0:12:01.920 --> 0:12:06.760 the press that this is holding up his nominees and 0:12:06.840 --> 0:12:10.360 it is delaying somewhat. But there was a hopeful sign, 0:12:10.640 --> 0:12:17.080 very positive sign today in the Judiciary Committee where they 0:12:17.160 --> 0:12:21.800 held votes on people who had bipartisan support. So if 0:12:21.840 --> 0:12:24.720 any of the district nominees had the vote of any 0:12:24.920 --> 0:12:29.840 Republican member could move forward, and seven of them did today, 0:12:29.880 --> 0:12:32.480 and some of them had quite strong votes, like fourteen 0:12:32.640 --> 0:12:37.240 seven or twelve nine, thirteen eight, fourteen eight, so that 0:12:37.640 --> 0:12:40.480 is helpful. There were two or three who did not 0:12:40.559 --> 0:12:44.880 have bipartisan support and so they were held over and 0:12:45.160 --> 0:12:50.319 didn't have votes. But even those people could go forward 0:12:50.720 --> 0:12:53.600 with a discharge petition, which means you need a majority 0:12:53.679 --> 0:12:57.439 vote on the floor. And so I thought this was 0:12:57.480 --> 0:13:00.960 a good sign that people, especially Lindse Graham, who's the 0:13:01.000 --> 0:13:06.040 ranking member, the highest ranking Republican on the committee, showed 0:13:06.040 --> 0:13:08.160 he was willing to work together and he voted for 0:13:08.200 --> 0:13:11.200 all seven of those and some of his colleagues did 0:13:11.400 --> 0:13:16.440 as well, and so that means that they're not being 0:13:16.440 --> 0:13:20.520 held up. Now the question is will Senator Schumer schedule 0:13:20.559 --> 0:13:23.840 them as majority leader on the floor for votes and 0:13:23.880 --> 0:13:26.320 they won't take much time. They only need two hours 0:13:26.360 --> 0:13:31.880 of debate after cloture. So now we have twenty district 0:13:31.880 --> 0:13:35.760 nominees on the floor who could be confirmed, and we 0:13:36.000 --> 0:13:41.400 have still five appellate nominees on the floor who still 0:13:41.440 --> 0:13:45.960 need confirmation votes and debates, and the pellet ones are 0:13:46.000 --> 0:13:48.960 more difficult because you need thirty hours of debate time 0:13:49.040 --> 0:13:53.880 after cloture. Some of them are considered controversial by GOP members. 0:13:54.800 --> 0:13:59.320 So I'm hopeful that this makes it much easier to 0:13:59.400 --> 0:14:03.080 move a number of nominees, and I think that will 0:14:03.120 --> 0:14:05.520 be happening soon, though I haven't seen much sign of 0:14:05.559 --> 0:14:07.520 it on the floor yet, but they just came back 0:14:07.559 --> 0:14:11.000 this week from two weeks away, so that looks more 0:14:11.000 --> 0:14:14.480 positive than some of the news reports that things are 0:14:14.480 --> 0:14:17.839 being delayed, because we could soon see twenty more district 0:14:17.920 --> 0:14:18.720 nominees approved. 0:14:19.160 --> 0:14:22.680 So then, why did the Republicans make such a show 0:14:22.920 --> 0:14:28.160 of not agreeing to put a Democratic senator in Dianne 0:14:28.240 --> 0:14:30.440 Feinstein's place temporarily. 0:14:30.920 --> 0:14:34.080 That's a really good question, and I think it just 0:14:34.240 --> 0:14:40.000 reflects the terrible partisanship and politicization that infects this process. 0:14:40.280 --> 0:14:43.400 All kinds of reasons were given, but Senator McConn all 0:14:43.480 --> 0:14:46.120 sort of personified that everybody looks to him on the 0:14:46.160 --> 0:14:50.320 GOP side and then follows whatever he does as leader, 0:14:51.120 --> 0:14:56.680 and he basically said, we're not going to empower Democrats 0:14:57.240 --> 0:15:01.880 to confirm the small a fraction or some other term 0:15:02.000 --> 0:15:09.080 like that of nominees who are radical activists or incompetent, 0:15:09.880 --> 0:15:13.840 and so that's the position that most of the other 0:15:13.960 --> 0:15:18.240 GOP members took. And today what happened, I think refused 0:15:18.280 --> 0:15:21.960 that to some extent. But that's the problem. They wouldn't 0:15:22.000 --> 0:15:26.680 extend the courtesy to Senator Feinstein, who's a long serving 0:15:26.720 --> 0:15:31.760 member and longtime colleague and very collegial and people genuinely 0:15:31.880 --> 0:15:33.480 like her. And that's what a number of the GFP 0:15:33.600 --> 0:15:37.000 members said. But it seemed like a very easy solution. 0:15:37.080 --> 0:15:41.240 The proposal was Ben Cardon, who had served effectively on 0:15:41.280 --> 0:15:45.000 the committee before from Maryland, is quite moderate Democrats. What 0:15:45.080 --> 0:15:49.160 happened today is a good sign that there'll be cooperation 0:15:49.880 --> 0:15:53.360 for most of the nominees. Then moving them on the 0:15:53.360 --> 0:15:56.240 floor is critical, and I think that won't happen soon. 0:15:56.560 --> 0:15:57.920 Starting maybe next week. 0:15:58.680 --> 0:16:03.960 President Biden tends to nominate Irma Carrillo Ramirez as the 0:16:04.000 --> 0:16:07.280 first Hispanic woman to serve on the Fifth Circuit Court 0:16:07.280 --> 0:16:12.280 of Appeals in Texas, and that is an appointment that 0:16:12.320 --> 0:16:17.080 got the support of both Republican Home state senators. So 0:16:17.160 --> 0:16:20.040 tell us how that worked out well. 0:16:20.320 --> 0:16:23.320 Senators Corner and Cruz deserve some credit here, but they 0:16:23.360 --> 0:16:27.920 supported her. In twenty sixteen, when she was nominated by 0:16:27.920 --> 0:16:32.840 President Obama for the Northern District of Texas District Bench. 0:16:33.000 --> 0:16:35.960 And she had been served as magistrate judge now for 0:16:36.000 --> 0:16:39.000 twenty years and had been an assistant US attorney for 0:16:39.400 --> 0:16:42.120 five or six years before that and in private practice, 0:16:42.320 --> 0:16:46.640 so she's very experienced, very well qualified, but the GOP 0:16:46.800 --> 0:16:50.880 majority refused to schedule her confirmation vote. I think she 0:16:50.920 --> 0:16:55.040 came out of committee very strongly in twenty sixteen, and 0:16:55.520 --> 0:16:59.680 the evaluation committee that Texas has had said in twenty 0:16:59.720 --> 0:17:03.840 six theme that she was excellent, and the Senator supported 0:17:03.880 --> 0:17:06.760 her then. So I think they're supporting her now for 0:17:06.840 --> 0:17:09.280 the fifth Circuit, and that's good to have that seat filled. 0:17:09.480 --> 0:17:13.240 That should proceed very well. And the same day there 0:17:13.320 --> 0:17:17.520 was a nomination by President Biden of Anna di Alba, 0:17:17.840 --> 0:17:20.040 who's been on the Eastern District of California for ten 0:17:20.119 --> 0:17:24.679 months and is highly respected and was smoothly confirmed. So 0:17:25.640 --> 0:17:29.520 optimistic that she will move through the process again and 0:17:29.600 --> 0:17:30.600 be on the Nice Circuit. 0:17:30.840 --> 0:17:34.840 Let's turn to Justice Clarence Thomas, and I want to 0:17:34.840 --> 0:17:38.840 ask first your opinion about the first report was about 0:17:38.880 --> 0:17:43.280 these lavish trips that he took with a Republican mega donor. 0:17:43.680 --> 0:17:47.360 But now there's also reporting of a property deal, So 0:17:47.440 --> 0:17:51.879 money changed hands with that same Republican mega donor and 0:17:52.400 --> 0:17:56.760 it wasn't reported. Is this a violation of the law. 0:17:57.320 --> 0:18:00.280 Well, I think it is a technical violation because us 0:18:01.119 --> 0:18:07.560 all government employees are subject to ethics requirements in terms 0:18:07.600 --> 0:18:12.440 of reporting, and so I think it is clear that 0:18:13.119 --> 0:18:18.440 those should have been reported by the Justice. But twenty 0:18:18.440 --> 0:18:23.600 eight Usc. Fifty five, which speaks to conflicts of interest 0:18:23.720 --> 0:18:28.560 and says if there's an appearance that's sufficient, does not 0:18:28.680 --> 0:18:33.199 bind the Justices. It's the statute that binds all the 0:18:33.280 --> 0:18:38.560 other federal judges, district judges, appellate judges, and magistrate judges, 0:18:38.640 --> 0:18:42.080 but not the Supreme Court. And so there's been some 0:18:42.240 --> 0:18:47.600 discussion of possibly asking the Supreme Court to adopt that 0:18:47.720 --> 0:18:51.280 kind of language and apply it to itself. I think, 0:18:51.320 --> 0:18:54.160 in fairness, the Justices at least say, and I think 0:18:54.320 --> 0:18:58.840 Thomas has said that they consult those ethics requirements in 0:18:59.040 --> 0:19:02.239 four fifty five, but they're not bound to do it. 0:19:02.600 --> 0:19:08.000 So this raises questions about reporting and whether it was 0:19:08.040 --> 0:19:12.560 appropriate what he had done. And there are letters coming 0:19:12.560 --> 0:19:18.280 from the Senate Judiciary Committee specifically asking questions encouraging Chief 0:19:18.320 --> 0:19:22.240 Justice Roberts to open an investigation, and I believe there'll 0:19:22.280 --> 0:19:27.560 be Judiciary Committee hearings, and I think that some Senators 0:19:27.600 --> 0:19:31.440 have discussed the possibility of requesting that Justice Thomas come 0:19:31.480 --> 0:19:35.560 in and testify. Whether he will do that is not clear. 0:19:35.600 --> 0:19:37.480 Whether they will ask him to do it is not clear, 0:19:38.080 --> 0:19:40.360 So we'll just have to see what happens. 0:19:40.760 --> 0:19:43.600 They've asked the Chief Justice to come in and testify. 0:19:43.640 --> 0:19:45.680 I mean, what are the chances that the Chief Justice 0:19:45.720 --> 0:19:49.199 is going to subject himself to Senate questions? 0:19:49.680 --> 0:19:53.000 That's a good question. I don't believe he has testified 0:19:53.040 --> 0:19:55.440 since his own hearing in two thousand and five or 0:19:55.480 --> 0:19:57.439 two thousand and six when he was confirmed for the 0:19:57.480 --> 0:20:00.639 Supreme Court. But there's a long tradition of having justices 0:20:00.720 --> 0:20:04.199 go over and testify the associate justices, and they have 0:20:04.560 --> 0:20:08.560 done that almost annually. I think about the state of 0:20:08.560 --> 0:20:12.400 the judiciary in federal courts and those types of issues. 0:20:12.600 --> 0:20:17.119 Will see what happens in this particular situation. People have 0:20:17.160 --> 0:20:20.199 pointed out that, of course, with the leak in the 0:20:20.240 --> 0:20:23.960 Dobbs case, that was sufficiently important to have an investigation, 0:20:24.600 --> 0:20:28.640 So wondering why there shouldn't be some kind of investigation 0:20:29.080 --> 0:20:33.840 of this question about whether the reporting requirements were satisfied. 0:20:34.119 --> 0:20:37.760 Can they force Thomas to testify at a Judiciary committee 0:20:37.760 --> 0:20:39.560 hearing or do they have no power over him? 0:20:39.880 --> 0:20:44.199 Well, they could request, and he can decide whether he 0:20:44.359 --> 0:20:48.600 will or not. If he doesn't, they could subpoena him, 0:20:49.000 --> 0:20:53.440 but ultimately it would be very difficult, and he might 0:20:53.560 --> 0:20:57.880 even be willing to litigate that question because of separation 0:20:57.960 --> 0:21:02.280 of powers kinds of questions. At best, it would likely 0:21:02.359 --> 0:21:05.800 take some time for that to happen if the Senate 0:21:05.840 --> 0:21:08.720 were to make that request and he were to deny it. 0:21:09.280 --> 0:21:11.800 So I think we'll just have to see what the 0:21:11.840 --> 0:21:14.560 Senate does. But I think there'll be at least some hearing, 0:21:14.760 --> 0:21:19.160 though they wouldn't be as complete if the Justice doesn't testify. 0:21:19.520 --> 0:21:25.480 The Democratic lawmakers forwarded their concerns to the US judiciary 0:21:25.520 --> 0:21:30.159 panel that handles financial disclosures, the Judicial Conference Committee on 0:21:30.200 --> 0:21:33.720 Financial Disclosure. What can that committee do, if anything? 0:21:34.800 --> 0:21:38.120 Well, I think it makes policy. It's the policy making 0:21:38.240 --> 0:21:41.440 arm in the federal courts, comprised of the chief justices 0:21:41.520 --> 0:21:45.160 the top that too, but it has the chief judges 0:21:45.200 --> 0:21:48.760 of all the appeals courts as well, as one member 0:21:48.840 --> 0:21:52.800 elected usually district judge from all those appeals courts, So 0:21:52.840 --> 0:21:56.159 it's about a twenty five member body, and they do 0:21:56.440 --> 0:22:00.439 make policy. In this particular committee, I think is asked 0:22:00.480 --> 0:22:06.200 with ethics and other questions about qualifications, and so the 0:22:06.240 --> 0:22:09.360 Administrative Officer of the US Courts, the Administrative arm forwarded 0:22:09.840 --> 0:22:16.040 the Senators and representatives letters over to that committee, and 0:22:16.480 --> 0:22:20.119 the committee may respond, It may not do anything, or 0:22:20.160 --> 0:22:24.920 it may undertake some action in response. I think that's 0:22:24.960 --> 0:22:28.639 the committee out of which the recently revised standards that 0:22:28.800 --> 0:22:33.360 dealt with questions of gifts or whatever from private parties 0:22:33.600 --> 0:22:37.679 and talking about tightening those up just this spring. So 0:22:37.720 --> 0:22:40.880 it has some authority, but not at all clear that 0:22:41.000 --> 0:22:44.280 it has authority to investigate and take some action. 0:22:44.960 --> 0:22:49.280 This has been widely publicized. The public's opinion of the 0:22:49.320 --> 0:22:53.959 Supreme Court has plummeted. What will this do if nothing 0:22:54.040 --> 0:22:57.920 is done about Clarence Thomas and he just now does 0:22:57.960 --> 0:23:00.840 what he was supposed to do years ago and files 0:23:01.240 --> 0:23:05.000 the disclosure. I mean, it just seems like the Supreme 0:23:05.040 --> 0:23:07.959 Court is above the law. 0:23:08.560 --> 0:23:11.280 Well, people have said that, and a number of press 0:23:11.280 --> 0:23:16.840 outlets have made that argument or and criticized the justice 0:23:17.520 --> 0:23:20.399 in the system and said, why, you know, if all 0:23:20.440 --> 0:23:23.200 the lower court judges are subject to that, why shouldn't 0:23:23.200 --> 0:23:27.359 the justices be subject to twenty eight Usc. Four fifty 0:23:27.400 --> 0:23:31.520 five in terms of conflicts and appearance of conflicts? And 0:23:31.560 --> 0:23:34.520 I think it comes back to the reluctance of a 0:23:34.640 --> 0:23:40.520 coequal branch to basically legislate as to the Supreme Court, 0:23:41.119 --> 0:23:44.440 even as they Congress certainly legislate as to the lower 0:23:44.440 --> 0:23:48.639 federal courts. But that's in the Constitution, and so I 0:23:48.680 --> 0:23:52.120 think that's the argument on the other side, that Congress 0:23:52.280 --> 0:23:56.000 may be reluctant to and may not actually have the 0:23:56.040 --> 0:23:59.120 power to. And of course the ultimate resolution of that 0:23:59.400 --> 0:24:03.359 where a check challenged would for example, imposing a code 0:24:03.400 --> 0:24:06.119 of conduct on the Supreme Court by way of legislation, 0:24:06.680 --> 0:24:10.240 the ultimate decision maker would be the Supreme Court justices themselves. 0:24:10.720 --> 0:24:14.119 So it's difficult to get at that problem. The reputation 0:24:14.200 --> 0:24:17.399 of Supreme Court has been very much on the decline. 0:24:17.640 --> 0:24:21.520 All of the public data to that effect, the surveys 0:24:21.720 --> 0:24:25.200 show that it's at one of its lowest points in decades. 0:24:25.359 --> 0:24:27.320 And you know, it doesn't have the power of the 0:24:27.359 --> 0:24:31.520 purse or the sword, and really relies on the public 0:24:31.640 --> 0:24:35.480 to trust it in making these decisions, and those are 0:24:35.640 --> 0:24:40.800 unelected justices, and so it's critical to democracy that it 0:24:40.960 --> 0:24:45.000 have respect, otherwise its orders won't be followed or it's decisions. 0:24:45.040 --> 0:24:49.040 It's critical for the society and the United States to 0:24:49.200 --> 0:24:52.280 have the utmost respect for the justices. 0:24:52.640 --> 0:24:55.600 We'll see if the Chief Justice responds to this. Thanks 0:24:55.600 --> 0:24:58.840 so much, Carl. That's Professor Carl Tobias of the University 0:24:58.840 --> 0:25:01.480 of Richmond Law School. And that's it for this edition 0:25:01.520 --> 0:25:04.200 of The Bloomberg Law Show. Remember you can always get 0:25:04.200 --> 0:25:07.320 the latest legal news on our Bloomberg Law podcasts. You 0:25:07.359 --> 0:25:11.480 can find them on Apple Podcasts, Spotify, and at www 0:25:11.600 --> 0:25:15.879