1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,480 --> 00:00:13,680 Speaker 2: The Supreme Court stepped into the twenty twenty four election, 3 00:00:14,000 --> 00:00:17,400 Speaker 2: allowing Virginia to carry out a purge of residence from 4 00:00:17,440 --> 00:00:21,960 Speaker 2: its voter rolls. The court's conservative justices granted an emergency 5 00:00:22,000 --> 00:00:26,119 Speaker 2: appeal from Virginia's Republican governor despite the fact that a 6 00:00:26,160 --> 00:00:29,880 Speaker 2: federal court had found that the state had illegally purged 7 00:00:30,080 --> 00:00:34,199 Speaker 2: more than sixteen hundred voter registrations in the past two months, 8 00:00:34,680 --> 00:00:39,479 Speaker 2: violating a ninety day pre election quiet period under federal law. 9 00:00:39,800 --> 00:00:45,080 Speaker 2: The three liberal justices dissented. Virginia Governor Glenn Youngkin has 10 00:00:45,159 --> 00:00:49,280 Speaker 2: defended his order issued on August seventh, the ninetieth day 11 00:00:49,320 --> 00:00:53,560 Speaker 2: before the November fifth election. Here he is on CNN. 12 00:00:53,440 --> 00:00:57,600 Speaker 3: Because it is done on an individualized basis, person by person, 13 00:00:58,280 --> 00:01:02,280 Speaker 3: and because that person has in fact self identified as 14 00:01:02,320 --> 00:01:06,080 Speaker 3: a non citizen, this is not subject to the ninety 15 00:01:06,160 --> 00:01:09,600 Speaker 3: day blackout period. In my view and in Councils and 16 00:01:09,680 --> 00:01:10,560 Speaker 3: Council's advice. 17 00:01:11,000 --> 00:01:14,240 Speaker 2: Joining me is election law expert Richard Brefalt, a professor 18 00:01:14,240 --> 00:01:18,360 Speaker 2: at Columbia Law School. Were you surprised that the Supreme 19 00:01:18,400 --> 00:01:22,920 Speaker 2: Court intervened to reverse the Fourth Circuit and the District 20 00:01:22,959 --> 00:01:24,280 Speaker 2: court judge, Yes. 21 00:01:24,800 --> 00:01:27,120 Speaker 4: Maybe I shouldn't have been, but yes I was. So 22 00:01:27,200 --> 00:01:30,400 Speaker 4: this case involves a state effort to purge people from 23 00:01:30,440 --> 00:01:33,240 Speaker 4: the roles on the claim that they're non citizens. Non 24 00:01:33,280 --> 00:01:36,399 Speaker 4: citizens are not entitled to vote. It's illegal, and states 25 00:01:36,440 --> 00:01:38,560 Speaker 4: are allowed to remove any non citizens that are on 26 00:01:38,600 --> 00:01:41,240 Speaker 4: the ballot. But there is a provision in federal law 27 00:01:41,480 --> 00:01:44,920 Speaker 4: National Voter Registration Act, that prohibits mass purchase so called 28 00:01:45,000 --> 00:01:48,480 Speaker 4: systematic purchase within ninety days before the election, because it 29 00:01:48,600 --> 00:01:51,280 Speaker 4: makes it too difficult for people. They'd be purged by mistake, 30 00:01:51,440 --> 00:01:53,280 Speaker 4: and if it's a mass purge, it's actually difficult for 31 00:01:53,320 --> 00:01:55,440 Speaker 4: people to be aware of that and to respond, And 32 00:01:55,480 --> 00:01:58,800 Speaker 4: so that is illegal. But Virginia consciously adopted such a program. 33 00:01:58,800 --> 00:02:01,000 Speaker 4: The governor you should an EXECUS awards to that effect, 34 00:02:01,280 --> 00:02:03,800 Speaker 4: literally on the day that this so called quiet or 35 00:02:03,840 --> 00:02:06,880 Speaker 4: non purgury was supposed to begin, and basically used some 36 00:02:07,040 --> 00:02:11,680 Speaker 4: mix of DMV data and other databases to conclude that 37 00:02:11,720 --> 00:02:14,959 Speaker 4: people were not citizens DMV. When you get a driver's license, 38 00:02:15,120 --> 00:02:16,680 Speaker 4: you may be asked whether or not you were citizens. 39 00:02:16,680 --> 00:02:19,639 Speaker 4: Some people checked non citizen by mistake, some people check 40 00:02:19,720 --> 00:02:21,919 Speaker 4: not a cisms because they are not a citizen when 41 00:02:21,919 --> 00:02:24,240 Speaker 4: they get their driver's license, but some years later become 42 00:02:24,320 --> 00:02:28,040 Speaker 4: naturalized as citizens. So the state, using that data and 43 00:02:28,120 --> 00:02:31,200 Speaker 4: other data, went ahead and concluded that something like sixteen 44 00:02:31,280 --> 00:02:34,519 Speaker 4: hundred people were not citizens and needed to be purged 45 00:02:34,520 --> 00:02:36,880 Speaker 4: from the roles, and that was challenged on the theory 46 00:02:36,960 --> 00:02:39,360 Speaker 4: that violated the federal law. And also there was evidence 47 00:02:39,400 --> 00:02:41,040 Speaker 4: a number of these people who were bridge were in 48 00:02:41,080 --> 00:02:44,360 Speaker 4: fact citizens and were challenging that as in individuals. The 49 00:02:44,400 --> 00:02:46,840 Speaker 4: Federal District Court in Virginia concluded that this was a 50 00:02:46,840 --> 00:02:49,840 Speaker 4: pretty straightforward violation the federal law, that it was going 51 00:02:49,880 --> 00:02:51,840 Speaker 4: on in this so called quiet theory, that it was 52 00:02:51,840 --> 00:02:55,920 Speaker 4: a systematic removal effort, not based on individualized information about 53 00:02:55,960 --> 00:02:59,560 Speaker 4: individual voters, but basically a massive database information that they 54 00:02:59,600 --> 00:03:02,040 Speaker 4: were loading from one database to another. And the Fourth 55 00:03:02,040 --> 00:03:06,040 Speaker 4: Circuit Court of Appeals agreed rather refuse to overturn the 56 00:03:06,080 --> 00:03:08,560 Speaker 4: District Court's injunction, the Court of Appeals basically said, yes, 57 00:03:08,600 --> 00:03:10,080 Speaker 4: on the fact that it appears to us that this 58 00:03:10,240 --> 00:03:13,359 Speaker 4: is a violation of federal law and it should be stopped. 59 00:03:13,440 --> 00:03:16,600 Speaker 4: The Supreme Court rather quickly by well, I'm coming to 60 00:03:16,680 --> 00:03:18,040 Speaker 4: to say six y three. But you know that three 61 00:03:18,040 --> 00:03:21,200 Speaker 4: liberal justices dissented because it was just an order. It's 62 00:03:21,240 --> 00:03:23,320 Speaker 4: not clear that all six of the others agreed, but 63 00:03:23,560 --> 00:03:25,320 Speaker 4: but it looks like by pretty much a party line 64 00:03:25,360 --> 00:03:29,400 Speaker 4: vote without an opinion, basically reversed the Fourth Circuit and 65 00:03:29,480 --> 00:03:32,359 Speaker 4: allowed this purge to go forth. But the purchase actually stopped. 66 00:03:32,919 --> 00:03:37,240 Speaker 4: But the sixteen hundred voters who were removed remain removed 67 00:03:37,720 --> 00:03:41,720 Speaker 4: unless they can as individuals go in and Virginia allows 68 00:03:41,800 --> 00:03:44,880 Speaker 4: the same day registration, go in and prove that they 69 00:03:44,920 --> 00:03:47,320 Speaker 4: are citizens and re register and then vote. 70 00:03:47,600 --> 00:03:51,800 Speaker 2: Virginia made several arguments, and one was that the quiet 71 00:03:51,840 --> 00:03:56,880 Speaker 2: period doesn't apply to non citizens. Another was that courts 72 00:03:56,880 --> 00:04:00,200 Speaker 2: shouldn't get involved because of what's known as the personel. 73 00:04:01,040 --> 00:04:04,000 Speaker 4: Right, so taking them in reverse order. The problem with 74 00:04:04,040 --> 00:04:07,920 Speaker 4: the Percell principle in this case is courts cannot get involved. 75 00:04:08,080 --> 00:04:11,120 Speaker 4: I mean, the only basis for judicial intervention is that 76 00:04:11,160 --> 00:04:14,840 Speaker 4: the state has violated the ninety day rule, So any 77 00:04:14,880 --> 00:04:17,680 Speaker 4: effort to enforce the ninety day rule would occur within 78 00:04:17,800 --> 00:04:20,960 Speaker 4: ninety days before the election. So it makes no sense 79 00:04:21,000 --> 00:04:23,719 Speaker 4: to invoke the Percel principle here. The only real question 80 00:04:23,839 --> 00:04:26,960 Speaker 4: is did the plaintiffs and the US government, which also participated, 81 00:04:27,200 --> 00:04:29,840 Speaker 4: move quickly once they became aware of what was going on, 82 00:04:30,040 --> 00:04:31,800 Speaker 4: and the lower courts agreed that they did that there 83 00:04:31,839 --> 00:04:33,839 Speaker 4: was no delay, and once it became clear what the 84 00:04:33,839 --> 00:04:36,400 Speaker 4: state was doing, the lawsuit was brought In terms of 85 00:04:36,400 --> 00:04:39,480 Speaker 4: whether or not the quiet period applies to removal the 86 00:04:39,600 --> 00:04:43,279 Speaker 4: non citizens, nothing in it any case that it doesn't. 87 00:04:43,560 --> 00:04:45,920 Speaker 4: In other words, the law is simply there to say 88 00:04:45,920 --> 00:04:49,160 Speaker 4: that there should be no removals based on a system, 89 00:04:49,160 --> 00:04:53,800 Speaker 4: and no systematic removals. And it doesn't say no removals 90 00:04:53,839 --> 00:04:57,440 Speaker 4: only for non residency or no removals. It just as 91 00:04:57,600 --> 00:05:01,720 Speaker 4: no removals that period. There's nothing in the law that 92 00:05:01,880 --> 00:05:05,440 Speaker 4: limits the grounds of ineligibility to something or other, such 93 00:05:05,440 --> 00:05:08,520 Speaker 4: as to moving, and it does permit removals for death. 94 00:05:08,800 --> 00:05:11,560 Speaker 4: So it's not quite clear what this law would be 95 00:05:11,600 --> 00:05:13,880 Speaker 4: doing if it doesn't also apply to removals on a 96 00:05:13,920 --> 00:05:15,960 Speaker 4: theory that the individual is not a citizen. 97 00:05:16,440 --> 00:05:19,360 Speaker 2: So, as you mentioned, we don't know why the justices 98 00:05:19,480 --> 00:05:24,680 Speaker 2: voted as they did, but the three liberal justices made 99 00:05:24,720 --> 00:05:29,159 Speaker 2: their public dissent clear. What does it tell you that 100 00:05:29,279 --> 00:05:31,440 Speaker 2: this was down ideological lines? 101 00:05:32,040 --> 00:05:34,960 Speaker 4: It's very troubling. It's very troubling the decision. It seems 102 00:05:34,960 --> 00:05:37,880 Speaker 4: to be the lower court decision was well reasoned. The 103 00:05:37,920 --> 00:05:40,800 Speaker 4: Court of Appeals agreed with it, and there is irreparable 104 00:05:40,800 --> 00:05:43,920 Speaker 4: injury to those voters who might be eligible to vote, 105 00:05:43,920 --> 00:05:45,800 Speaker 4: who have been denied the right to vote. Now, some 106 00:05:45,839 --> 00:05:48,840 Speaker 4: of them will be able to re establish their eligibility 107 00:05:48,880 --> 00:05:52,000 Speaker 4: because they can re register in the coming day. So 108 00:05:52,279 --> 00:05:54,279 Speaker 4: it's possible some of them will be back in, but 109 00:05:54,560 --> 00:05:56,640 Speaker 4: you know, it takes time, it takes efforts. Quite possible 110 00:05:56,680 --> 00:05:57,240 Speaker 4: some of them will not. 111 00:05:57,880 --> 00:06:01,680 Speaker 2: Although Virginia is not a battleground state. This was based 112 00:06:01,760 --> 00:06:05,320 Speaker 2: on an order by the Republican governor and was backed 113 00:06:05,320 --> 00:06:08,839 Speaker 2: at the Supreme Court by the country's twenty six other 114 00:06:08,960 --> 00:06:13,720 Speaker 2: Republican state attorneys general, the Republican National Committee, and several 115 00:06:13,760 --> 00:06:19,480 Speaker 2: conservative groups. And it revolves around a flashpoint in Donald 116 00:06:19,560 --> 00:06:23,640 Speaker 2: Trump's yes race, which is that you know, there's widespread 117 00:06:23,720 --> 00:06:26,640 Speaker 2: voting by non citizens. 118 00:06:26,120 --> 00:06:28,560 Speaker 4: Right, And for years he's been making that argument, even 119 00:06:28,600 --> 00:06:31,720 Speaker 4: when he won in twenty sixteen, although he lost the 120 00:06:31,760 --> 00:06:33,840 Speaker 4: popular vote, he says, well, I really won the popular 121 00:06:33,920 --> 00:06:36,839 Speaker 4: vote because Hillary Clinton's numbers were inflated by all the 122 00:06:36,839 --> 00:06:40,200 Speaker 4: non citizens there is absolutely no evidence of more than 123 00:06:40,640 --> 00:06:43,320 Speaker 4: a minuscule number of non citizens voting, and usually is 124 00:06:43,320 --> 00:06:46,400 Speaker 4: by mistake. It's illegal for non citizens to vote. There 125 00:06:46,400 --> 00:06:49,960 Speaker 4: are severe penalties. The number of non citizens who are 126 00:06:49,960 --> 00:06:54,000 Speaker 4: registered vote who actually vote is absolutely minuscular. It is 127 00:06:54,200 --> 00:06:57,520 Speaker 4: a non fact, but it's been used so heavily by 128 00:06:57,560 --> 00:07:01,320 Speaker 4: Republicans to try and undermine legitimacy of the election. There 129 00:07:01,360 --> 00:07:03,160 Speaker 4: was just no evidence that it occurs. 130 00:07:04,400 --> 00:07:07,760 Speaker 2: So do you think this lawsuit is to set the 131 00:07:07,839 --> 00:07:11,840 Speaker 2: stage or the groundwork for contesting election results. 132 00:07:12,160 --> 00:07:15,600 Speaker 4: Yes, I think anything that raises the issue of non citizens. 133 00:07:15,600 --> 00:07:15,720 Speaker 1: Now. 134 00:07:15,760 --> 00:07:18,640 Speaker 4: Of course Republicans won this lawsuit, so they won't be 135 00:07:18,640 --> 00:07:21,880 Speaker 4: able to make this argument in Virginia now, but you know, 136 00:07:21,920 --> 00:07:24,200 Speaker 4: it is an issue they've been raising all over the country. 137 00:07:24,600 --> 00:07:27,520 Speaker 4: There was a similar student Alabama where the Federal District 138 00:07:27,520 --> 00:07:30,440 Speaker 4: Court ordered the governor to stop the per program in 139 00:07:30,480 --> 00:07:33,080 Speaker 4: Alabama and to undo it there. I think about three 140 00:07:33,080 --> 00:07:35,080 Speaker 4: thousand people have been removed from the roles, and there 141 00:07:35,120 --> 00:07:37,600 Speaker 4: was evidence again that it's often by a mistake. Again, 142 00:07:37,640 --> 00:07:41,160 Speaker 4: they're using old databases. Sometimes it's the wrong person. There 143 00:07:41,200 --> 00:07:43,960 Speaker 4: may be that the DMV numbers may indicate this person 144 00:07:43,960 --> 00:07:46,600 Speaker 4: with a certain name as a non citizen. Somebody with 145 00:07:46,680 --> 00:07:49,480 Speaker 4: the same name but a different person might be removed 146 00:07:49,680 --> 00:07:53,000 Speaker 4: from the roles because if their matching is pretty basic. Basically, 147 00:07:53,000 --> 00:07:54,520 Speaker 4: if you have the same first and last name as 148 00:07:54,560 --> 00:07:56,520 Speaker 4: the person at least been identified as a non citizen, 149 00:07:56,520 --> 00:07:59,240 Speaker 4: you can be removed. And that's not so uncommon. And 150 00:07:59,320 --> 00:08:03,440 Speaker 4: it also again using DMV data, since your driver's license 151 00:08:03,480 --> 00:08:06,440 Speaker 4: can be good for four years or more. In that time, 152 00:08:06,520 --> 00:08:09,280 Speaker 4: you could have naturalized from being a non citizen to 153 00:08:09,320 --> 00:08:12,280 Speaker 4: a citizen, but that naturalized person will be removed from 154 00:08:12,320 --> 00:08:14,640 Speaker 4: the roles. And so I think it's very much a 155 00:08:14,640 --> 00:08:17,160 Speaker 4: way of keeping the issue alive and in front of 156 00:08:17,160 --> 00:08:19,720 Speaker 4: people all the time. And indeed people will think, oh, 157 00:08:19,760 --> 00:08:23,400 Speaker 4: there were sixteen hundred non citizens voting in Virginia. It's 158 00:08:23,440 --> 00:08:26,360 Speaker 4: not clear that any of them were non citizens. Certain 159 00:08:26,400 --> 00:08:28,840 Speaker 4: number of names popped up on certain databases, and certainly 160 00:08:28,840 --> 00:08:31,240 Speaker 4: there are men individual cases in the newspapers and people 161 00:08:31,320 --> 00:08:33,640 Speaker 4: showing that they were not non citizens, that they were citizens, 162 00:08:33,920 --> 00:08:36,720 Speaker 4: some citizens from birth and some naturalized citizens. 163 00:08:37,720 --> 00:08:40,760 Speaker 2: A lot of election experts have been saying that this 164 00:08:40,840 --> 00:08:44,560 Speaker 2: year's election won't be a repeat of Bushvie Gore. The 165 00:08:44,600 --> 00:08:48,200 Speaker 2: Supreme Court is unlikely to play a pivotal role. But 166 00:08:48,440 --> 00:08:52,920 Speaker 2: does this decision indicate differently that the Justices may get involved. 167 00:08:53,240 --> 00:08:54,760 Speaker 4: Yes, I don't know why you would think that the 168 00:08:55,000 --> 00:08:57,080 Speaker 4: Justices will be uninvolved. It will turn on what the 169 00:08:57,120 --> 00:09:00,599 Speaker 4: issues are. And you know, I think versus Score was 170 00:09:00,679 --> 00:09:03,640 Speaker 4: unusual and that the issue the Supreme Court dealt with 171 00:09:03,840 --> 00:09:07,240 Speaker 4: was infect a post election issue another word, how to 172 00:09:07,280 --> 00:09:09,360 Speaker 4: take care of a recount or how to take care 173 00:09:09,360 --> 00:09:12,720 Speaker 4: of the counting of ballots in Florida where it wasn't 174 00:09:12,760 --> 00:09:15,959 Speaker 4: completely clear how people had voted, and so that was 175 00:09:16,000 --> 00:09:18,040 Speaker 4: an issue that could not have come up before the 176 00:09:18,080 --> 00:09:20,920 Speaker 4: election this time. I mean, I think it's still another 177 00:09:21,000 --> 00:09:24,040 Speaker 4: week to go. They're deciding issues that could be relevant 178 00:09:24,200 --> 00:09:26,960 Speaker 4: to the election beforehand, like this one. As for things 179 00:09:27,000 --> 00:09:30,040 Speaker 4: after the election, there may still be things that come up, 180 00:09:30,280 --> 00:09:32,079 Speaker 4: so it's hard to know. In some ways, you could 181 00:09:32,160 --> 00:09:33,840 Speaker 4: argue that this is in earlier this year on Trump's 182 00:09:33,840 --> 00:09:36,920 Speaker 4: immunity in some sense plays into the election or getting 183 00:09:36,920 --> 00:09:39,240 Speaker 4: on the ballot in the first place. So I don't 184 00:09:39,320 --> 00:09:42,400 Speaker 4: understand the argument as to why anyone thinks that they 185 00:09:42,440 --> 00:09:45,280 Speaker 4: would be more or less engaged than in twenty or 186 00:09:45,280 --> 00:09:47,720 Speaker 4: in twenty twenty, where they did a bunch of things 187 00:09:47,760 --> 00:09:51,640 Speaker 4: before the election, but not so much after the election. Right. 188 00:09:51,640 --> 00:09:53,880 Speaker 2: Well, they point to that, They say, all those you know, 189 00:09:53,920 --> 00:09:57,280 Speaker 2: more than sixty cases brought by Trump and his allies, 190 00:09:57,280 --> 00:10:00,520 Speaker 2: and they didn't take up any of them, right. 191 00:10:00,280 --> 00:10:03,439 Speaker 4: Right, And including the original jurisdiction case that Texas brought 192 00:10:03,480 --> 00:10:06,880 Speaker 4: against Pennsylvania to not count Pennsylvania's vote Texas joined by 193 00:10:06,880 --> 00:10:09,600 Speaker 4: twenty other Republican states. They didn't hear that. No, they 194 00:10:10,440 --> 00:10:12,760 Speaker 4: stayed pretty much out of it after the election in 195 00:10:12,760 --> 00:10:15,120 Speaker 4: twenty twenty. But you know, the result in twenty twenty 196 00:10:15,160 --> 00:10:18,360 Speaker 4: was pretty clear. I think it's hard to speculate about 197 00:10:18,400 --> 00:10:21,600 Speaker 4: the Supreme Court, but this decision is not a great 198 00:10:21,640 --> 00:10:24,800 Speaker 4: sign about the courts wanting to stay out of the election. 199 00:10:24,880 --> 00:10:28,480 Speaker 4: This was an unnecessary decision. The law was pretty strongly 200 00:10:28,520 --> 00:10:30,319 Speaker 4: on the side of the plaintiffs, the ones trying to 201 00:10:30,320 --> 00:10:31,359 Speaker 4: stop the purge. 202 00:10:31,600 --> 00:10:36,120 Speaker 2: They did refuse to order RFK Junior's name removed from 203 00:10:36,240 --> 00:10:39,880 Speaker 2: presidential election ballots in Michigan and Wisconsin. 204 00:10:40,360 --> 00:10:42,360 Speaker 4: Yeah, I mean, again, it's hard to figure out. I mean, 205 00:10:42,480 --> 00:10:44,600 Speaker 4: it could be that maybe they want to be deferring 206 00:10:44,600 --> 00:10:47,600 Speaker 4: to the states both ways. I mean, refusing to order 207 00:10:47,640 --> 00:10:50,120 Speaker 4: the removal is consistent with the state, and in this case, 208 00:10:50,160 --> 00:10:52,079 Speaker 4: allowing the states to go forward with the purges consistent 209 00:10:52,080 --> 00:10:54,240 Speaker 4: with the state. Maybe that's part of it, but I 210 00:10:54,280 --> 00:10:56,240 Speaker 4: don't even know. I'm not even trying to tempt to 211 00:10:56,280 --> 00:10:57,720 Speaker 4: say that there's a consistent logic. 212 00:10:57,920 --> 00:11:00,880 Speaker 2: It's hard to say it. Maybe we'll underst stand more 213 00:11:01,360 --> 00:11:04,280 Speaker 2: when the court rules in a case in the pivotal 214 00:11:04,320 --> 00:11:07,480 Speaker 2: state of Pennsylvania where the Republican Party is trying to 215 00:11:07,480 --> 00:11:11,440 Speaker 2: get the justices to stop Pennsylvanians from getting a second 216 00:11:11,559 --> 00:11:15,199 Speaker 2: chance to vote if their mail in ballots are rejected 217 00:11:15,720 --> 00:11:19,959 Speaker 2: as incomplete. Thanks so much, rich That's Professor Richard Brifault 218 00:11:20,080 --> 00:11:22,960 Speaker 2: of Columbia Law School. Coming up next on the Bloomberg 219 00:11:23,040 --> 00:11:28,360 Speaker 2: Law Show. A Texas judge's unusual request injects culture war 220 00:11:28,480 --> 00:11:31,960 Speaker 2: issues into the Boeing plea deal. I'm June Grosso and 221 00:11:32,040 --> 00:11:37,440 Speaker 2: you're listening to Bloomberg. The US government's criminal case against 222 00:11:37,480 --> 00:11:42,280 Speaker 2: Boeing over two fatal crashes took what many legal observers 223 00:11:42,360 --> 00:11:47,160 Speaker 2: called an unusual turn when a conservative Texas federal judge 224 00:11:47,320 --> 00:11:51,400 Speaker 2: brought the culture wars into it, questioning how diversity practices 225 00:11:51,440 --> 00:11:55,319 Speaker 2: would affect the selection of an independent safety monitor. Judge 226 00:11:55,400 --> 00:11:59,840 Speaker 2: rit O'Connor, a George W. Bush appointee, is considering Boeing's 227 00:12:00,040 --> 00:12:03,360 Speaker 2: opposed plea deal with the Justice Department, which would allow 228 00:12:03,400 --> 00:12:07,040 Speaker 2: the company to avoid a criminal trial over the two 229 00:12:07,200 --> 00:12:11,760 Speaker 2: catastrophic crashes of its seven thirty seven Max jets. At 230 00:12:11,760 --> 00:12:15,280 Speaker 2: a recent hearing, the judge press the Justice Department on 231 00:12:15,440 --> 00:12:20,160 Speaker 2: why diversity, equity and inclusion criteria in the selection of 232 00:12:20,200 --> 00:12:23,680 Speaker 2: a monitor had been built into the plea agreement. Joining 233 00:12:23,679 --> 00:12:26,640 Speaker 2: me is Todd Howe, an associate professor of business law 234 00:12:26,679 --> 00:12:30,240 Speaker 2: and ethics at Indiana University. First tell us where the 235 00:12:30,480 --> 00:12:32,920 Speaker 2: independent monitor fits into the plea deal. 236 00:12:33,320 --> 00:12:37,400 Speaker 1: So, the Department of Justice is part of the proposed 237 00:12:37,679 --> 00:12:41,400 Speaker 1: plea agreement in the Boeing case, has a provision in 238 00:12:41,440 --> 00:12:45,840 Speaker 1: that agreement that says Gooing will be under a corporate 239 00:12:45,960 --> 00:12:49,880 Speaker 1: monitor for the next number of years, and a corporate 240 00:12:49,880 --> 00:12:55,400 Speaker 1: monitor is essentially an outsider that will be involved in 241 00:12:55,559 --> 00:12:58,160 Speaker 1: day to day decisions that the company is making in 242 00:12:58,240 --> 00:13:01,160 Speaker 1: order to ensure that they're going to beef up their 243 00:13:01,200 --> 00:13:05,959 Speaker 1: compliance program and make sure that essentially they're following all 244 00:13:06,160 --> 00:13:10,280 Speaker 1: the compliance obligations that are laid out in the plea 245 00:13:10,320 --> 00:13:14,560 Speaker 1: agreement in order to repair essentially the wrongdoing that has 246 00:13:14,600 --> 00:13:18,360 Speaker 1: occurred that caused the conviction and what made. 247 00:13:18,160 --> 00:13:23,480 Speaker 2: This judge curious about diversity, equity and inclusion criteria. 248 00:13:24,280 --> 00:13:27,120 Speaker 1: So to take a step back for a second, So, 249 00:13:27,160 --> 00:13:29,600 Speaker 1: first of all, it's very rare for judges to have 250 00:13:29,920 --> 00:13:33,679 Speaker 1: a whole lot to say about corporate monitors because usually 251 00:13:33,720 --> 00:13:37,920 Speaker 1: the agreements between a company and the Department of Justice 252 00:13:38,240 --> 00:13:41,760 Speaker 1: where a monitor would be imposed, don't really get in 253 00:13:41,760 --> 00:13:44,400 Speaker 1: front of judges very often. So this is kind of 254 00:13:44,440 --> 00:13:48,120 Speaker 1: an atypical situation because there's actually a plea agreement in 255 00:13:48,120 --> 00:13:51,760 Speaker 1: this case, and so because there's a plea agreement, now 256 00:13:51,960 --> 00:13:56,040 Speaker 1: the court has the opportunity to either accept or deny 257 00:13:56,160 --> 00:13:58,960 Speaker 1: that agreement. And so as part of the court's role, 258 00:13:59,200 --> 00:14:02,960 Speaker 1: the judge was reviewing the proposed plea agreement, which has 259 00:14:03,000 --> 00:14:06,880 Speaker 1: been particularly contentious because the victims of the two plane 260 00:14:06,920 --> 00:14:09,640 Speaker 1: crashes have been trying to block a flea agreement for 261 00:14:09,640 --> 00:14:11,760 Speaker 1: a very long time. They want to go to trial, 262 00:14:11,800 --> 00:14:14,640 Speaker 1: they want it bowing to be held responsible. So in 263 00:14:14,720 --> 00:14:17,400 Speaker 1: order to decide whether the plea agreement is going to 264 00:14:17,400 --> 00:14:21,560 Speaker 1: be granted, the judge was reviewing it, and what happened 265 00:14:22,000 --> 00:14:25,600 Speaker 1: recently is the judge wanted to get more information related 266 00:14:25,640 --> 00:14:29,360 Speaker 1: to a diversity and equity provision related to the monitor, 267 00:14:29,440 --> 00:14:32,840 Speaker 1: which is essentially a Department of Justice provision that says, 268 00:14:33,160 --> 00:14:35,400 Speaker 1: you know, we're going to make sure we're going to 269 00:14:35,440 --> 00:14:38,640 Speaker 1: look at diversity and equity issues. We want to keep 270 00:14:38,680 --> 00:14:41,280 Speaker 1: those in mind when we're selecting monitors, and that really 271 00:14:41,320 --> 00:14:43,400 Speaker 1: caught the attention of the court. 272 00:14:43,760 --> 00:14:46,840 Speaker 2: The Justice Department says, this is really part of a 273 00:14:46,880 --> 00:14:50,960 Speaker 2: long standing practice at the agency. Quote this new language 274 00:14:51,000 --> 00:14:54,200 Speaker 2: reflected not a change in policy, but rather a principle 275 00:14:54,480 --> 00:14:57,480 Speaker 2: that has always governed the process that selection of a 276 00:14:57,560 --> 00:15:00,720 Speaker 2: monitor must be based solely on merit from the broadest 277 00:15:00,960 --> 00:15:03,360 Speaker 2: possible pool of qualified candidates. 278 00:15:03,880 --> 00:15:06,000 Speaker 1: Let me put this a little bit larger context. So, 279 00:15:06,480 --> 00:15:13,160 Speaker 1: this diverse inectuity provision has been in Justice departments. You know, 280 00:15:13,280 --> 00:15:18,240 Speaker 1: policies has been used related to monitors going back quite 281 00:15:18,240 --> 00:15:22,000 Speaker 1: a way since about twenty eighteen. Hasn't been used a 282 00:15:22,040 --> 00:15:24,720 Speaker 1: lot in every single monitorship, but it's been around, and 283 00:15:24,720 --> 00:15:27,440 Speaker 1: then it was kind of more formalized a little bit later, 284 00:15:27,520 --> 00:15:30,120 Speaker 1: So there's been a number of years that this provision 285 00:15:30,120 --> 00:15:33,200 Speaker 1: has been out there. The purpose of it was to 286 00:15:33,240 --> 00:15:38,040 Speaker 1: try to get a more diverse pool of monitor candidates, 287 00:15:38,080 --> 00:15:41,000 Speaker 1: because if you look back at the history of monitors, 288 00:15:41,440 --> 00:15:45,320 Speaker 1: they tend to be lawyers from big law firms and 289 00:15:45,400 --> 00:15:49,640 Speaker 1: big consulting type firms. Former Department of Justice, you know, 290 00:15:49,720 --> 00:15:53,320 Speaker 1: officials or prosecutors, they tend to be older, they tend 291 00:15:53,320 --> 00:15:56,040 Speaker 1: to be male, and they largely were white. And so 292 00:15:56,360 --> 00:15:58,680 Speaker 1: you know, these kind of DII provisions were sort of 293 00:15:58,760 --> 00:16:01,720 Speaker 1: just a larger effort by the Department of Justice to 294 00:16:01,760 --> 00:16:05,480 Speaker 1: diversify the monitor. It doesn't necessarily mean you're going to 295 00:16:05,480 --> 00:16:09,760 Speaker 1: get less qualified candidates by any stretch, because there's a 296 00:16:09,800 --> 00:16:14,480 Speaker 1: lot of great qualified candidates. I think the issue here is, 297 00:16:14,520 --> 00:16:17,960 Speaker 1: you know, we're in this political moment where diversity, equity inclusion, 298 00:16:18,720 --> 00:16:21,880 Speaker 1: so the pendulum is swung back, and this judge is 299 00:16:22,000 --> 00:16:27,040 Speaker 1: picking up on that and really focusing closely at it. However, 300 00:16:27,360 --> 00:16:29,960 Speaker 1: my opinion here is the judge should be focused more 301 00:16:30,000 --> 00:16:35,360 Speaker 1: on the qualifications of the monitor, not necessarily the DEI provision, 302 00:16:35,560 --> 00:16:39,440 Speaker 1: but this larger question of what type of skill is 303 00:16:39,480 --> 00:16:42,800 Speaker 1: this monitor going to have? I think that's where his 304 00:16:43,080 --> 00:16:44,040 Speaker 1: focus should be. 305 00:16:44,920 --> 00:16:48,440 Speaker 2: But normally, as you said before, judges don't get involved 306 00:16:48,520 --> 00:16:51,040 Speaker 2: even in the selection of the monitor. 307 00:16:51,640 --> 00:16:54,640 Speaker 1: That's correct. So the way that the Department of Justice 308 00:16:54,720 --> 00:17:00,520 Speaker 1: policy for monitors selection generally goes is the THEOJ and 309 00:17:00,880 --> 00:17:04,760 Speaker 1: the company sort of the company selects a bunch of 310 00:17:04,760 --> 00:17:08,119 Speaker 1: different monitors, and then ultimately the Department Justice sort of 311 00:17:08,160 --> 00:17:11,400 Speaker 1: selects one, and there's some kind of like veto provisions, 312 00:17:11,440 --> 00:17:15,760 Speaker 1: if you will. This particular monitorship is a little bit different, 313 00:17:16,119 --> 00:17:18,680 Speaker 1: where the Apartment of Justice has created more of an 314 00:17:18,720 --> 00:17:23,040 Speaker 1: open call for monitors, so anybody really is going to 315 00:17:23,080 --> 00:17:26,439 Speaker 1: be able to assuming that the judge proves plea agreement, 316 00:17:26,600 --> 00:17:28,240 Speaker 1: anybody's going to be able to put their hat in 317 00:17:28,240 --> 00:17:30,720 Speaker 1: the ring to be a monitor, and then the selection 318 00:17:30,960 --> 00:17:33,479 Speaker 1: process is a little bit different. But all of that 319 00:17:33,600 --> 00:17:35,239 Speaker 1: is sort of in some ways kind of gone by 320 00:17:35,280 --> 00:17:39,120 Speaker 1: the wayside because the judges really focused on this DEI 321 00:17:39,240 --> 00:17:41,080 Speaker 1: provision in particular. 322 00:17:41,720 --> 00:17:47,239 Speaker 2: Did you find the Justice Department's explanation convincing. 323 00:17:47,600 --> 00:17:50,200 Speaker 1: Well, listen, I think that the Department of Justice, I 324 00:17:50,280 --> 00:17:53,200 Speaker 1: think they're accurate in what they've reported in the sense 325 00:17:53,240 --> 00:17:55,600 Speaker 1: that this provision has been around for a long time. 326 00:17:55,880 --> 00:17:58,960 Speaker 1: They give the background about why the provisions created. You know, 327 00:17:58,960 --> 00:18:01,320 Speaker 1: they're absolutely right to that these provisions have been in 328 00:18:01,359 --> 00:18:04,280 Speaker 1: effect over the last two administrations, so not just the 329 00:18:04,280 --> 00:18:08,399 Speaker 1: Biden administration but also the Trump administration. So you know, 330 00:18:08,560 --> 00:18:11,680 Speaker 1: it's been kind of a fairly long standing practice despite 331 00:18:11,680 --> 00:18:14,880 Speaker 1: the focus on it now. Again, my focus here, if 332 00:18:14,920 --> 00:18:17,280 Speaker 1: I were the judge is I would be asking much 333 00:18:17,320 --> 00:18:23,280 Speaker 1: more specific questions about, well, what exact skills and expertise 334 00:18:24,040 --> 00:18:27,119 Speaker 1: is the Department of Justice wanting and is Boeing going 335 00:18:27,160 --> 00:18:30,720 Speaker 1: to agree to essentially in order for there to be 336 00:18:31,040 --> 00:18:35,280 Speaker 1: an effective compliance program to make sure something like what 337 00:18:35,400 --> 00:18:38,000 Speaker 1: happened with the Boeing case doesn't ever happen again. And 338 00:18:38,040 --> 00:18:40,919 Speaker 1: so there's been a lot of problems with skills and 339 00:18:40,920 --> 00:18:44,200 Speaker 1: expertise of monitors over the years, and that has had 340 00:18:44,280 --> 00:18:48,359 Speaker 1: nothing to do with diversity equity inclusion, because we've seen 341 00:18:48,400 --> 00:18:51,680 Speaker 1: those problems before this DEI provision was in place, and 342 00:18:51,720 --> 00:18:55,439 Speaker 1: we've certainly seen them afterwards. So that's what my focus 343 00:18:55,480 --> 00:18:57,280 Speaker 1: would be if I were this judgement, and that's what 344 00:18:57,320 --> 00:18:58,840 Speaker 1: I would count for him to be looking at. 345 00:18:59,320 --> 00:19:05,800 Speaker 2: Well. Judge O'Connor has been known for some very conservative opinions. 346 00:19:05,840 --> 00:19:09,479 Speaker 2: He's the judge who found Obamacare was unconstitutional, which the 347 00:19:09,600 --> 00:19:12,480 Speaker 2: US Supreme Court then reversed him on. 348 00:19:12,920 --> 00:19:15,760 Speaker 1: Yeah, I mean that's right. I mean, I wasn't familiar 349 00:19:15,840 --> 00:19:18,960 Speaker 1: with his you know, ideology prior to this, and so 350 00:19:19,160 --> 00:19:22,000 Speaker 1: you know, I guess the cynic out there to say, well, listen, 351 00:19:22,080 --> 00:19:25,280 Speaker 1: this is kind of just part of his particular predilections 352 00:19:25,359 --> 00:19:28,680 Speaker 1: or his ideology sort of entering the culture wars or 353 00:19:28,720 --> 00:19:32,119 Speaker 1: something like that. Whether that's the case or not, I 354 00:19:32,240 --> 00:19:35,239 Speaker 1: think what we really need to be focusing on is 355 00:19:35,680 --> 00:19:38,440 Speaker 1: the purpose of the monitor. The purpose of the monitor 356 00:19:39,080 --> 00:19:42,440 Speaker 1: is to be involved in the company to help ensure 357 00:19:42,680 --> 00:19:46,440 Speaker 1: that the prophecies the company puts in place going forward 358 00:19:46,720 --> 00:19:50,560 Speaker 1: are going to actually solve the problem. And that's really 359 00:19:50,560 --> 00:19:52,320 Speaker 1: what we need to be focused on if we want 360 00:19:52,359 --> 00:19:55,359 Speaker 1: to have a real impact on corporate wrongdoing and corporate 361 00:19:55,400 --> 00:19:59,560 Speaker 1: crime and positive cultures in an organization which going really 362 00:19:59,640 --> 00:20:02,760 Speaker 1: is differing from the negative effects of and you can 363 00:20:02,800 --> 00:20:04,719 Speaker 1: see that and the safety records and a whole lot 364 00:20:04,720 --> 00:20:07,280 Speaker 1: of other things going on at Boeing. So getting a 365 00:20:07,280 --> 00:20:09,560 Speaker 1: good monitor in there is actually going to make a 366 00:20:09,560 --> 00:20:14,240 Speaker 1: difference really matters. The demographic makeup of that monitor shouldn't matter. 367 00:20:14,359 --> 00:20:17,320 Speaker 1: It's really about the skills and expertise. And so that's 368 00:20:17,359 --> 00:20:19,919 Speaker 1: again where I want on this judge to be focused 369 00:20:19,960 --> 00:20:22,919 Speaker 1: as opposed to entering the culture wars or making some 370 00:20:23,040 --> 00:20:26,520 Speaker 1: kind of statement about thee High More broadly, so, the judge. 371 00:20:26,240 --> 00:20:31,080 Speaker 2: Is going to decide on whether the plea agreement goes forward, 372 00:20:31,600 --> 00:20:33,879 Speaker 2: and in that he could say, I don't want a 373 00:20:33,920 --> 00:20:40,680 Speaker 2: monitor that is chosen by using diversity, equity and inclusion criteria. 374 00:20:41,440 --> 00:20:45,200 Speaker 1: Well, it's kind of interesting. This particular plea agreement comes 375 00:20:45,280 --> 00:20:48,680 Speaker 1: under a provision it's called a fee plea, which basically 376 00:20:48,720 --> 00:20:52,399 Speaker 1: says that the parties have agreed on the flea and 377 00:20:52,480 --> 00:20:55,280 Speaker 1: the court is going to agree to it or not 378 00:20:55,359 --> 00:20:57,000 Speaker 1: agree to it. It's kind of a take it or 379 00:20:57,080 --> 00:21:00,400 Speaker 1: leave it situation. And then if the judge did agree 380 00:21:00,440 --> 00:21:02,400 Speaker 1: with it, the parties sort of have to go back 381 00:21:02,440 --> 00:21:04,719 Speaker 1: and see if they can figure out something else, or 382 00:21:04,760 --> 00:21:06,359 Speaker 1: they could decide that you know, they're going to go 383 00:21:06,400 --> 00:21:10,000 Speaker 1: to trial. So the interesting way that the court has 384 00:21:10,080 --> 00:21:12,600 Speaker 1: kind of put its foot in the door about this 385 00:21:12,720 --> 00:21:16,560 Speaker 1: particular plea agreement. You know, my guess is that ultimately 386 00:21:16,920 --> 00:21:19,880 Speaker 1: it get approved, because that's what happens in the vast, 387 00:21:19,920 --> 00:21:22,480 Speaker 1: vast majority of these types of cases. But it sure 388 00:21:22,520 --> 00:21:25,119 Speaker 1: seems that the court's going to put the parties in 389 00:21:25,160 --> 00:21:27,480 Speaker 1: the department of Justice through the ringer, if you will, 390 00:21:27,840 --> 00:21:30,520 Speaker 1: on the CI provision and maybe some other provision for 391 00:21:30,880 --> 00:21:31,479 Speaker 1: that happens. 392 00:21:31,720 --> 00:21:36,520 Speaker 2: Because the opposition to this by the victims families has been, 393 00:21:37,240 --> 00:21:40,080 Speaker 2: you know, very loud and persistent. 394 00:21:40,840 --> 00:21:46,439 Speaker 1: That's exactly right. It's part of the really uncharacteristic nature 395 00:21:46,680 --> 00:21:50,200 Speaker 1: of this type of case where you have a really 396 00:21:50,280 --> 00:21:53,439 Speaker 1: vocal victims group that doesn't always happen in white collar, 397 00:21:53,560 --> 00:21:56,479 Speaker 1: you know, corporate crime cases. Case, and they have an 398 00:21:56,760 --> 00:22:01,280 Speaker 1: extremely able counsel of talk well out of the University 399 00:22:01,320 --> 00:22:04,560 Speaker 1: of Utah who has really led to charge. And so 400 00:22:05,359 --> 00:22:08,439 Speaker 1: not only did they block you know, sort of reopen 401 00:22:08,480 --> 00:22:11,080 Speaker 1: almost reopen the case, if you will, and has a 402 00:22:11,119 --> 00:22:15,000 Speaker 1: Department of Justice relook at the existing deferred prosecution agreement 403 00:22:15,080 --> 00:22:17,640 Speaker 1: and that's sort of what you know, led to Now 404 00:22:17,680 --> 00:22:20,800 Speaker 1: they're being an actual formal plea and going to be 405 00:22:20,840 --> 00:22:23,640 Speaker 1: a conviction in this case. So yeah, it's a very 406 00:22:23,840 --> 00:22:26,800 Speaker 1: unique experience, and I think from their interest rate, they're 407 00:22:26,800 --> 00:22:28,480 Speaker 1: happy to have anything that's going to disrupt through up 408 00:22:28,520 --> 00:22:31,840 Speaker 1: the plea agreement because ultimately they want either a more 409 00:22:31,880 --> 00:22:35,800 Speaker 1: stringent plea agreement that goes against the company or they 410 00:22:35,800 --> 00:22:38,040 Speaker 1: want to come to go to trial and face the 411 00:22:38,080 --> 00:22:39,120 Speaker 1: consequences of the trial. 412 00:22:39,760 --> 00:22:42,880 Speaker 2: So under the plea agreement, what exactly happens to. 413 00:22:42,880 --> 00:22:48,080 Speaker 1: Boeing, Well, Boeing would pay a massive fine, they have 414 00:22:48,960 --> 00:22:52,960 Speaker 1: long term compliance obligations. How they have to remake their 415 00:22:52,960 --> 00:22:56,280 Speaker 1: compliance program in order to guard against this type of fraud. 416 00:22:56,560 --> 00:22:59,160 Speaker 1: And then kind of included in that there is going 417 00:22:59,240 --> 00:23:02,560 Speaker 1: to be, you know, a corporate monitor that will oversee 418 00:23:02,920 --> 00:23:06,560 Speaker 1: those changes within the company for a number of years 419 00:23:06,600 --> 00:23:07,280 Speaker 1: going forward. 420 00:23:07,520 --> 00:23:09,760 Speaker 2: Thanks so much for being on the show. That's todd. 421 00:23:09,800 --> 00:23:13,399 Speaker 2: How a professor at Indiana University coming up Why New 422 00:23:13,480 --> 00:23:19,320 Speaker 2: Jersey's Supreme Court is so different? This is Bloomberg. Next week, 423 00:23:19,400 --> 00:23:22,919 Speaker 2: voters in nearly three dozen states will select hundreds of 424 00:23:23,080 --> 00:23:27,240 Speaker 2: judges who will be asked to resolve contentious political questions 425 00:23:27,560 --> 00:23:32,840 Speaker 2: about issues like abortion and gerrymandering. And partisanship has crept into, 426 00:23:33,119 --> 00:23:37,960 Speaker 2: if not overtaken, judicial elections, with special interest groups spending 427 00:23:38,040 --> 00:23:41,399 Speaker 2: millions on the races, especially when the flip of a 428 00:23:41,440 --> 00:23:45,680 Speaker 2: state supreme court could lead to monumental reversals of law. 429 00:23:46,000 --> 00:23:50,680 Speaker 2: That's true everywhere except in New Jersey. Here to explain 430 00:23:50,760 --> 00:23:55,399 Speaker 2: why is Alex Ebert Bloomberg, Senior correspondent start by telling 431 00:23:55,480 --> 00:23:59,200 Speaker 2: us about the record of the New Jersey's Supreme Court 432 00:23:59,440 --> 00:24:00,840 Speaker 2: in the last two years. 433 00:24:01,280 --> 00:24:05,760 Speaker 5: The New Jersey Supreme Court is amazing and how consistently 434 00:24:06,040 --> 00:24:09,639 Speaker 5: it has been unanimous over the last several years. In 435 00:24:09,680 --> 00:24:13,840 Speaker 5: the last two years in roughly ninety percent of their decisions, 436 00:24:14,160 --> 00:24:17,679 Speaker 5: they have no concurrences or dissents. They speak with just 437 00:24:17,800 --> 00:24:19,120 Speaker 5: one voice and. 438 00:24:19,080 --> 00:24:23,359 Speaker 2: Has the court divided four to three based on political affiliation. 439 00:24:23,960 --> 00:24:26,479 Speaker 5: It is yees, so for the last two years. Up 440 00:24:26,520 --> 00:24:29,359 Speaker 5: until just a month ago, it was four Democrats and 441 00:24:29,440 --> 00:24:33,600 Speaker 5: three Republicans. Now there are four Democrats, two Republicans and 442 00:24:33,640 --> 00:24:37,480 Speaker 5: one conservative independent who was the former Attorney general for 443 00:24:37,520 --> 00:24:38,520 Speaker 5: Governor Chris Christie. 444 00:24:38,680 --> 00:24:40,600 Speaker 2: And how are the justices chosen? 445 00:24:40,960 --> 00:24:44,440 Speaker 5: The justices are chosen in a unique way. The governor 446 00:24:44,480 --> 00:24:48,360 Speaker 5: gets to nominate them. But the New Jersey Senate, which 447 00:24:48,400 --> 00:24:51,520 Speaker 5: has been controlled by Democrats for twenty years, has something 448 00:24:51,600 --> 00:24:55,680 Speaker 5: really similar to the federal blue slips system. The senators 449 00:24:55,760 --> 00:24:59,280 Speaker 5: that are from the area where the candidate lives have 450 00:24:59,440 --> 00:25:03,880 Speaker 5: a feed up check on that nomination getting a confirmation vote. 451 00:25:04,160 --> 00:25:06,960 Speaker 5: Sometimes that can mean up to five different senators have 452 00:25:07,000 --> 00:25:09,320 Speaker 5: to be won over by the governor and they use 453 00:25:09,400 --> 00:25:12,600 Speaker 5: this to extract different thanks from the governor, whether it 454 00:25:12,760 --> 00:25:17,359 Speaker 5: be budget things or nominations of their political allies to 455 00:25:17,440 --> 00:25:20,960 Speaker 5: other posts. And because of that, these nominees usually have 456 00:25:21,040 --> 00:25:25,080 Speaker 5: a really high caliber and can please many people across 457 00:25:25,119 --> 00:25:25,480 Speaker 5: the state. 458 00:25:25,720 --> 00:25:28,640 Speaker 2: I mean, if you have an Democratic New Jersey governor, 459 00:25:29,080 --> 00:25:31,719 Speaker 2: why is he not appointing all Democrats? 460 00:25:31,800 --> 00:25:34,359 Speaker 5: Let's say that is a question I came into this 461 00:25:34,440 --> 00:25:37,640 Speaker 5: with and was totally blown away what I've found out. 462 00:25:38,160 --> 00:25:41,280 Speaker 5: For the last seventy years, the governors of New Jersey 463 00:25:41,840 --> 00:25:46,000 Speaker 5: have relied on this old tradition, an unwritten rule that 464 00:25:46,119 --> 00:25:50,960 Speaker 5: says the court is going to be max for justices 465 00:25:51,080 --> 00:25:54,879 Speaker 5: from one political party. It's always balanced on a partisan 466 00:25:55,240 --> 00:25:59,200 Speaker 5: knife's edge. And what that does is it creates this 467 00:25:59,440 --> 00:26:05,080 Speaker 5: system where unanimity and collaboration are a lot more important, 468 00:26:05,240 --> 00:26:09,440 Speaker 5: because just one switch of the governor can change who 469 00:26:09,480 --> 00:26:13,000 Speaker 5: controls the majority on the court, because that person will 470 00:26:13,000 --> 00:26:16,200 Speaker 5: get the chance to possibly nominate, you know, the next 471 00:26:16,280 --> 00:26:19,439 Speaker 5: vote that could flip it from Democrat to Republican. And 472 00:26:19,480 --> 00:26:23,840 Speaker 5: so you see these justices working together more collaboratively because 473 00:26:23,880 --> 00:26:26,720 Speaker 5: of this unwritten rule, not written in their constitution, not 474 00:26:26,760 --> 00:26:27,880 Speaker 5: written in any statue. 475 00:26:28,160 --> 00:26:31,040 Speaker 2: It is sort of amazing that it's unwritten and everyone 476 00:26:31,080 --> 00:26:35,080 Speaker 2: has still been following it. And New Jersey is a 477 00:26:35,160 --> 00:26:36,439 Speaker 2: reliably blue state. 478 00:26:36,920 --> 00:26:39,600 Speaker 5: It has been for the last twenty years, at least 479 00:26:39,600 --> 00:26:43,400 Speaker 5: in the state legislature. But the governorship isn't that way. 480 00:26:43,480 --> 00:26:46,720 Speaker 5: You know, you saw Chris Christy have two terms before 481 00:26:46,840 --> 00:26:51,800 Speaker 5: the current Democratic governor, Phil Murphy. So there's definitely the 482 00:26:51,960 --> 00:26:55,760 Speaker 5: space and ability for a moderate Republican to take over 483 00:26:55,840 --> 00:26:58,639 Speaker 5: that governor's post. And when they do so, they have 484 00:26:58,720 --> 00:27:02,200 Speaker 5: to collaborate and work with that Democratic Senate in order 485 00:27:02,240 --> 00:27:05,040 Speaker 5: to get these people on the bench. And it extends 486 00:27:05,119 --> 00:27:09,960 Speaker 5: even further than the state Supreme Court, the state chief Justice. 487 00:27:10,280 --> 00:27:13,080 Speaker 5: He has this unique power in the whole country to 488 00:27:13,160 --> 00:27:17,720 Speaker 5: balance out partisanship on the state appellate courts, and it's 489 00:27:17,760 --> 00:27:21,160 Speaker 5: expected to have partisan balance at the trial level as well. 490 00:27:21,400 --> 00:27:24,120 Speaker 5: Do you see this all the way down like Russian 491 00:27:24,160 --> 00:27:26,560 Speaker 5: nesting dollars of partisan balance across the state. 492 00:27:27,280 --> 00:27:31,600 Speaker 2: And just to compare, let's talk about judicial elections in 493 00:27:31,680 --> 00:27:35,360 Speaker 2: some other states and what's happening this election day. 494 00:27:35,720 --> 00:27:39,160 Speaker 5: Roughly three dozen states are going to be selecting judges. 495 00:27:39,240 --> 00:27:42,960 Speaker 5: It's more common to have judges elected than appointed. And 496 00:27:43,080 --> 00:27:47,200 Speaker 5: these raises, I mean You're seeing millions of dollars from 497 00:27:47,320 --> 00:27:50,679 Speaker 5: dark money groups pour into them to get justices with 498 00:27:51,040 --> 00:27:56,840 Speaker 5: their political or ideological legal persuasion on these benches. You know, 499 00:27:56,880 --> 00:27:59,840 Speaker 5: we saw just last year a thirty one million dollars 500 00:28:00,440 --> 00:28:05,040 Speaker 5: in Wisconsin, the highest ever. And it's expected for money 501 00:28:05,040 --> 00:28:07,720 Speaker 5: to be a really big player in these elections in 502 00:28:07,800 --> 00:28:12,280 Speaker 5: states where abortion is decided at the last line by 503 00:28:12,320 --> 00:28:13,240 Speaker 5: the state Supreme Court. 504 00:28:13,760 --> 00:28:19,480 Speaker 2: And explain what's happened in Wisconsin because that seat changed 505 00:28:19,480 --> 00:28:21,400 Speaker 2: the composition of the court. 506 00:28:21,600 --> 00:28:24,800 Speaker 5: Yeah, so Wisconsin's an interesting case, but not unique. I've 507 00:28:24,840 --> 00:28:29,240 Speaker 5: covered judicial races for several years for Bloomberg, and you 508 00:28:29,320 --> 00:28:32,280 Speaker 5: see in Wisconsin, like you see in North Carolina, how 509 00:28:32,320 --> 00:28:36,960 Speaker 5: a shifting court will literally overturn decisions that were issued 510 00:28:37,119 --> 00:28:41,840 Speaker 5: months or recent years previously. So in Wisconsin you had 511 00:28:42,320 --> 00:28:46,320 Speaker 5: Justice Protocewitz, a Democrat win her spot onto the court, 512 00:28:46,480 --> 00:28:50,480 Speaker 5: replacing a Republican, and that allowed the court to overturn 513 00:28:51,080 --> 00:28:55,920 Speaker 5: things like valid droughtbox access and political jerrymandering. It's a 514 00:28:56,000 --> 00:28:58,480 Speaker 5: really hot button issue in the state. Compare that to 515 00:28:58,480 --> 00:29:02,640 Speaker 5: North Carolina. Over a couple elections, you saw conservatives takeover 516 00:29:02,840 --> 00:29:06,400 Speaker 5: that's Supreme Court and they reverse things on election law, 517 00:29:06,480 --> 00:29:11,240 Speaker 5: and they actually eliminated partisan jerry mandarin claims there after 518 00:29:11,360 --> 00:29:14,040 Speaker 5: a liberal court had just recently said that folks could 519 00:29:14,040 --> 00:29:14,880 Speaker 5: bring those cases. 520 00:29:15,120 --> 00:29:18,440 Speaker 2: Let's talk about how the justices on the Supreme Court 521 00:29:18,440 --> 00:29:20,880 Speaker 2: in New Jersey choose their cases. 522 00:29:21,400 --> 00:29:24,200 Speaker 5: Yeah, so the funnel in New Jersey is really interesting. 523 00:29:24,360 --> 00:29:24,600 Speaker 4: Right. 524 00:29:24,880 --> 00:29:27,600 Speaker 5: You think about like pouring oil into a car, right, 525 00:29:27,640 --> 00:29:29,440 Speaker 5: and it's got to go through a funnel. It's the 526 00:29:29,480 --> 00:29:31,800 Speaker 5: same kind of thing with cases in New Jersey. You 527 00:29:31,840 --> 00:29:34,520 Speaker 5: start with this wide funnel and it gets narrow really 528 00:29:34,720 --> 00:29:37,440 Speaker 5: really fast. When you appeal a case in New Jersey, 529 00:29:37,480 --> 00:29:40,440 Speaker 5: it goes up to a unitary Court of Appeals. That 530 00:29:40,560 --> 00:29:42,760 Speaker 5: means that you know it'll go to a single body. 531 00:29:42,800 --> 00:29:46,640 Speaker 5: In the different chanels, all of their cases are precedential 532 00:29:46,680 --> 00:29:49,760 Speaker 5: on each other. That's different from some states you consider, 533 00:29:49,840 --> 00:29:54,560 Speaker 5: like Ohio, where you've got more than ten different regional 534 00:29:54,640 --> 00:29:57,520 Speaker 5: courts of appeals. They are the law is a lot 535 00:29:57,560 --> 00:30:00,560 Speaker 5: more chaosics, right, But in New Jersey you have this 536 00:30:00,720 --> 00:30:03,760 Speaker 5: unitary Court of Appeals that means that a case is 537 00:30:03,760 --> 00:30:06,800 Speaker 5: going to be heard by a panel, and that panel 538 00:30:06,880 --> 00:30:09,160 Speaker 5: is going to consider the law that everyone else in 539 00:30:09,200 --> 00:30:12,800 Speaker 5: the state is using. And if that panel has a dissent, 540 00:30:13,080 --> 00:30:16,200 Speaker 5: they know that that automatically means there's going to be 541 00:30:16,280 --> 00:30:19,080 Speaker 5: review of some kind by the state Supreme Court. So 542 00:30:19,120 --> 00:30:21,920 Speaker 5: there's a big incentive even at just the appellate level 543 00:30:22,280 --> 00:30:26,240 Speaker 5: for those cases to come out unanimously and have collaboration at. 544 00:30:26,120 --> 00:30:27,040 Speaker 1: The appellate level. 545 00:30:27,240 --> 00:30:30,440 Speaker 5: Then it gets even more interesting. In the state Supreme Court. 546 00:30:30,600 --> 00:30:34,200 Speaker 5: New Jersey has this process where they have cert partners, 547 00:30:34,480 --> 00:30:38,080 Speaker 5: so the justices will team up in pairs of two 548 00:30:38,160 --> 00:30:41,760 Speaker 5: to consider a different batch of you know, asks from 549 00:30:41,800 --> 00:30:44,400 Speaker 5: these parties that have cases for the court to give 550 00:30:44,400 --> 00:30:48,320 Speaker 5: it another look. And oftentimes you'll have a democratic justice 551 00:30:48,360 --> 00:30:52,480 Speaker 5: and a Republican justice teamed up together looking at cases, 552 00:30:52,920 --> 00:30:56,240 Speaker 5: collaborating and deciding if the issues are important enough for 553 00:30:56,280 --> 00:30:57,520 Speaker 5: the New Jersey Supreme. 554 00:30:57,240 --> 00:30:59,640 Speaker 2: Court to weigh in and then tell us about the 555 00:30:59,720 --> 00:31:04,000 Speaker 2: next step. The conferences the judges have. 556 00:31:04,600 --> 00:31:07,920 Speaker 5: The justices, like state supreme courts across the country, they 557 00:31:07,960 --> 00:31:11,760 Speaker 5: will bring their thoughts on the different cert petitions to 558 00:31:12,000 --> 00:31:15,920 Speaker 5: the broader court at conference, right, and if the justices agree, 559 00:31:16,000 --> 00:31:18,560 Speaker 5: they'll give like a unanimous thought on whether the short 560 00:31:18,680 --> 00:31:22,680 Speaker 5: should take or reject a cer petition. And everyone is 561 00:31:22,720 --> 00:31:25,360 Speaker 5: in the room and the partners are going back and forth, 562 00:31:25,400 --> 00:31:28,280 Speaker 5: and more often than not, these justices are agreeing. They're 563 00:31:28,280 --> 00:31:31,640 Speaker 5: already sort of, you know, seeing whether the law and 564 00:31:31,920 --> 00:31:35,520 Speaker 5: the implications are important for the state before the court. 565 00:31:35,560 --> 00:31:39,240 Speaker 5: Even here's the case, and to Justice Stuart Ravener, he's 566 00:31:39,240 --> 00:31:42,040 Speaker 5: a Democrat, he stits out of the cert partner's process. 567 00:31:42,160 --> 00:31:45,640 Speaker 5: So you'll have three Democrats and three Republicans looking at 568 00:31:45,640 --> 00:31:48,280 Speaker 5: these cases ahead of this meeting. But he'll come on 569 00:31:48,320 --> 00:31:51,040 Speaker 5: in and he'll weigh in on whether the state should 570 00:31:51,120 --> 00:31:52,000 Speaker 5: take certain petitions. 571 00:31:52,200 --> 00:31:56,040 Speaker 2: In your story, you talked about the tenor at oral arguments. 572 00:31:56,600 --> 00:31:59,400 Speaker 5: Oral arguments, when you're listening to them, and not listen 573 00:31:59,400 --> 00:32:01,960 Speaker 5: to one hundreds of them across the country, they can 574 00:32:01,960 --> 00:32:03,200 Speaker 5: feel like a dodgeball game. 575 00:32:03,520 --> 00:32:03,680 Speaker 4: Right. 576 00:32:03,920 --> 00:32:06,680 Speaker 5: You've got, you know, people being pelted with questions from 577 00:32:06,760 --> 00:32:09,920 Speaker 5: all sides. Sometimes the judges are even trying to undercut 578 00:32:09,920 --> 00:32:12,520 Speaker 5: each other, you know, with their questions and you know, 579 00:32:12,600 --> 00:32:15,880 Speaker 5: advance the legal theories that they're focused on. That is 580 00:32:15,880 --> 00:32:18,560 Speaker 5: the opposite in New Jersey. You know, the folks that 581 00:32:18,560 --> 00:32:22,080 Speaker 5: have talked with me that are longtime litigators appearing before 582 00:32:22,080 --> 00:32:25,200 Speaker 5: the court for thirty years or more, and they've said 583 00:32:25,240 --> 00:32:30,120 Speaker 5: that it verges on kindness, not even just civility. So 584 00:32:30,560 --> 00:32:35,280 Speaker 5: you'll see things like the justices will accidentally interrupt a 585 00:32:35,400 --> 00:32:39,120 Speaker 5: litigant while they're talking, and the justice will actually apologize 586 00:32:39,400 --> 00:32:42,480 Speaker 5: to the litigant and say sorry for interrupting you. It's 587 00:32:42,520 --> 00:32:44,960 Speaker 5: wildly different than your femos. So the places where the 588 00:32:45,160 --> 00:32:49,080 Speaker 5: justices are seeking to interrupt the different lawyers. And another 589 00:32:49,120 --> 00:32:52,080 Speaker 5: thing that's unique is they are extremely long. You know, 590 00:32:52,200 --> 00:32:54,880 Speaker 5: I just listened to one last week that went over 591 00:32:55,000 --> 00:32:55,640 Speaker 5: three hours. 592 00:32:55,760 --> 00:32:56,160 Speaker 2: Wow. 593 00:32:56,320 --> 00:32:59,120 Speaker 5: And at the end of the argument, Chief Justice Rabner 594 00:32:59,520 --> 00:33:01,280 Speaker 5: he has the thing that he always does where he 595 00:33:01,520 --> 00:33:04,680 Speaker 5: asks the lawyer if they have anything else they'd like 596 00:33:04,760 --> 00:33:08,880 Speaker 5: to say, And so it drastically changes the way these 597 00:33:08,920 --> 00:33:10,880 Speaker 5: cases are presented to this panel. 598 00:33:11,560 --> 00:33:15,719 Speaker 2: I like this part where the litigators who appear before 599 00:33:15,760 --> 00:33:19,040 Speaker 2: them say that they're not even trying to count votes anymore. 600 00:33:19,400 --> 00:33:23,000 Speaker 5: There's no more nose counting in terms of what these 601 00:33:23,120 --> 00:33:26,120 Speaker 5: routine and veteran litigators tell me. You know, these are 602 00:33:26,160 --> 00:33:29,400 Speaker 5: people that are partners at you know, national law firms 603 00:33:29,440 --> 00:33:31,840 Speaker 5: that have litigated elsewhere. These are folks that have been 604 00:33:31,840 --> 00:33:35,200 Speaker 5: in the trenches for decades and they've seen what the 605 00:33:35,240 --> 00:33:37,280 Speaker 5: court does and how it rules, and they tell me, 606 00:33:38,040 --> 00:33:40,800 Speaker 5: I can't figure out ahead of the time where this 607 00:33:40,840 --> 00:33:43,640 Speaker 5: is going to come down, and so they have to 608 00:33:43,720 --> 00:33:48,680 Speaker 5: offer up like consensus building opportunities for the court because 609 00:33:48,720 --> 00:33:51,120 Speaker 5: they know that the Court is likely to have these 610 00:33:51,160 --> 00:33:54,400 Speaker 5: Democrats and Republicans come together on something. So they can't 611 00:33:54,440 --> 00:33:56,640 Speaker 5: just leave with their strongest argument. They almost have to 612 00:33:57,080 --> 00:34:00,800 Speaker 5: offer up alternatives that you know, normally you'd see justices 613 00:34:01,360 --> 00:34:04,480 Speaker 5: sort of you know, peel or crank out of people 614 00:34:04,480 --> 00:34:06,320 Speaker 5: that don't want to offer them up at argument. 615 00:34:06,880 --> 00:34:10,880 Speaker 2: So with the Supreme Court, when there is a consensus opinion, 616 00:34:11,400 --> 00:34:14,120 Speaker 2: it's often narrow. Is that the same in New Jersey? 617 00:34:14,800 --> 00:34:18,040 Speaker 5: Indeed, so you know, off the record, some folks have 618 00:34:18,120 --> 00:34:20,680 Speaker 5: told me that they really wish that, you know, things 619 00:34:20,680 --> 00:34:23,319 Speaker 5: could be bigger swings by the court. Right, this is 620 00:34:23,440 --> 00:34:27,040 Speaker 5: generally a liberal state, and you know, folks on the 621 00:34:27,080 --> 00:34:32,160 Speaker 5: criminal defense side, you'll wish that this usually privacy and 622 00:34:32,360 --> 00:34:38,200 Speaker 5: independence minded judiciary would be more aggressive with advancing you know, 623 00:34:38,320 --> 00:34:41,800 Speaker 5: criminal rights or consumer rights. But you're seeing the justices 624 00:34:41,840 --> 00:34:43,800 Speaker 5: come together on narrower. 625 00:34:43,440 --> 00:34:44,720 Speaker 1: Propositions of the law. 626 00:34:45,120 --> 00:34:48,000 Speaker 5: You have a lot more like constitutional avoidance, right where 627 00:34:48,000 --> 00:34:51,040 Speaker 5: you lean into a statute in order to you know, 628 00:34:51,400 --> 00:34:55,520 Speaker 5: steer clear of murky constitutional questions. You have things where 629 00:34:55,560 --> 00:34:58,200 Speaker 5: like a court could make a big swing, But really 630 00:34:58,200 --> 00:35:00,640 Speaker 5: what it's doing is it's getting everyone ou or to 631 00:35:00,680 --> 00:35:03,319 Speaker 5: come to a narrow proposition of the law where it 632 00:35:03,360 --> 00:35:05,400 Speaker 5: can be more stable and consensus building. 633 00:35:05,880 --> 00:35:09,280 Speaker 2: This sounds like a great system, but because it's based 634 00:35:09,400 --> 00:35:13,279 Speaker 2: on tradition and unwritten law, does it seem like it 635 00:35:13,320 --> 00:35:16,719 Speaker 2: would ever be implemented in another state. 636 00:35:16,880 --> 00:35:20,480 Speaker 5: Based No, And in folks that I've talked with they 637 00:35:20,520 --> 00:35:24,400 Speaker 5: said the same. They recognize that it's extremely fragile. You know, 638 00:35:24,440 --> 00:35:26,880 Speaker 5: We've got a law professor who is a former co 639 00:35:27,040 --> 00:35:30,120 Speaker 5: dean of Rutgers University School of Law, and he says 640 00:35:30,160 --> 00:35:33,200 Speaker 5: in there that, you know, even writing these things down 641 00:35:33,280 --> 00:35:37,640 Speaker 5: right now would probably make them too political to survive debate. 642 00:35:37,840 --> 00:35:40,640 Speaker 5: There are some things like the start partners process, which 643 00:35:40,680 --> 00:35:42,920 Speaker 5: might be exportable. You know, you have a lot of 644 00:35:43,080 --> 00:35:45,000 Speaker 5: state courts around the country that might be willing to 645 00:35:45,040 --> 00:35:48,799 Speaker 5: consider that, But things like the partisan balance at the 646 00:35:48,800 --> 00:35:51,759 Speaker 5: top of the court that might be really hard. You know, 647 00:35:51,880 --> 00:35:54,480 Speaker 5: over the last century you saw a lot of states 648 00:35:54,600 --> 00:35:57,920 Speaker 5: move to the Missouri model for their state supreme courts. 649 00:35:58,000 --> 00:36:01,320 Speaker 5: Right this effort to have some sort of merit selection 650 00:36:01,440 --> 00:36:07,400 Speaker 5: process to eliminate political corruption by governors or by political machines. 651 00:36:07,480 --> 00:36:10,080 Speaker 5: So you have the state bar come in and put 652 00:36:10,120 --> 00:36:13,560 Speaker 5: forward candidates for governors to nominate. That seems to be 653 00:36:13,680 --> 00:36:16,399 Speaker 5: sort of the alternative process around the country where they 654 00:36:16,520 --> 00:36:21,000 Speaker 5: aim for non partisan sort of judiciaries. Here you have 655 00:36:21,080 --> 00:36:25,160 Speaker 5: an outright partisan judiciary, but they're coming together because of 656 00:36:25,160 --> 00:36:27,080 Speaker 5: these unwritten rules. So it's very unique. 657 00:36:27,480 --> 00:36:30,640 Speaker 2: And tell us about the justice who described how fragile 658 00:36:30,840 --> 00:36:31,319 Speaker 2: this is. 659 00:36:31,880 --> 00:36:36,080 Speaker 5: We got an exclusive interview with retiring justice. His name 660 00:36:36,120 --> 00:36:40,399 Speaker 5: is Lee Solmon, and he really talked about how New 661 00:36:40,520 --> 00:36:43,680 Speaker 5: Jersey is one of these states where if we think 662 00:36:43,719 --> 00:36:48,320 Speaker 5: about how democracy is so fragile, we have this time 663 00:36:48,400 --> 00:36:52,040 Speaker 5: where politics is really being leveled at the court, and 664 00:36:52,120 --> 00:36:55,080 Speaker 5: courts are being seen as more political in New Jerseys 665 00:36:55,080 --> 00:36:59,279 Speaker 5: the state where thus far the legislators and the governors 666 00:36:59,360 --> 00:37:01,640 Speaker 5: have been able to come together and make sure it 667 00:37:01,719 --> 00:37:05,000 Speaker 5: doesn't go down the path of other states or federal 668 00:37:05,040 --> 00:37:08,720 Speaker 5: courts where it really is becoming more of a gloves 669 00:37:08,719 --> 00:37:12,160 Speaker 5: off brawl. But you know, we're always just one governor 670 00:37:12,360 --> 00:37:14,600 Speaker 5: looking to pack the cord or push it one way 671 00:37:14,680 --> 00:37:19,320 Speaker 5: or another. From this system that's so fragile and tenuous. 672 00:37:19,200 --> 00:37:22,920 Speaker 2: Falling apart a great story, Alex, thanks so much. That's 673 00:37:22,920 --> 00:37:26,799 Speaker 2: Bloomberg Law Senior Correspondent Alex Ebert. And that's it for 674 00:37:26,840 --> 00:37:29,839 Speaker 2: this edition of the Bloomberg Law Podcast. Remember you can 675 00:37:29,920 --> 00:37:32,880 Speaker 2: always get the latest legal news by subscribing and listening 676 00:37:32,880 --> 00:37:36,560 Speaker 2: to the show on Apple Podcasts, Spotify, and at Bloomberg 677 00:37:36,640 --> 00:37:40,719 Speaker 2: dot com, slash podcast, slash Law. I'm June Grosso and 678 00:37:40,800 --> 00:37:42,080 Speaker 2: this is Bloomberg