Speaker 1: You're listening to Bloomberg Law. The next time Neil Gorcich
Speaker 1: speaks in public, he may be taking his oath as
Speaker 1: a Supreme Court justice. He finished his Senate confirmation testimony
Speaker 1: yesterday and Democrats must now decide whether to try to
Speaker 1: block a vote on the Senate floor. With Republicans in
Speaker 1: control of the chamber, that looks to be an uphill fight.
Speaker 1: Republicans are hoping to get him confirmed in time for
Speaker 1: the last Supreme Court arguments of the term during the
Speaker 1: last two weeks of April. With us to talk about
Speaker 1: Neil Gorcich is Raphael Mangui, Project manager for Legal Policy
Speaker 1: at the Manhattan Institute, and Michelle Jowondo, Vice president of
Speaker 1: Legal Process Progress at the Center for American Progress UM. Michelle,
Speaker 1: judge Gorcich clearly isn't somebody that Democrats would have nominated.
Speaker 1: He's a conservative, but there are a lot of legal
Speaker 1: conservatives in this country. Is there any evidence he is
Speaker 1: outside the mainstream? Well, first off, thank you so much
Speaker 1: for having me, and I'm actually calling you from UM
Speaker 1: the Senate Heart Building we where we are preparing to
Speaker 1: head back into UM. The last few witness panels of
Speaker 1: his nomination UM, I have the pleasure and the privilege
Speaker 1: of working on two other Supreme Court nominations that have
Speaker 1: judged so Mayor and Kagan, and I will say this,
Speaker 1: While we recognize that each president has their own prerogative
Speaker 1: to put forth UM whoever UH their nominee would be,
Speaker 1: I think it's important to recognize that the kind of
Speaker 1: process of selecting the Supreme Court nominee has consequences. I
Speaker 1: think what's very different about this moment is the backdrop
Speaker 1: in which neal force is being put forth. You know,
Speaker 1: for the first time in history we had we saw
Speaker 1: a nominee from President Obama not received a hearing, and
Speaker 1: in some cases wasn't even given the courtesy of meeting.
Speaker 1: You saw a president who has constantly shown his disdain
Speaker 1: not just for UH individual judges, but for the role
Speaker 1: of judges in the judiciary large, particularly when it comes
Speaker 1: to a number of his policies. And for the first
Speaker 1: time ever, we saw in some way this process was
Speaker 1: farmed out to to what I think many people would
Speaker 1: consider UM conservative more right wing organizations who selected the
Speaker 1: names of the people who would be considered Rafael Judge
Speaker 1: gorse It refused to answer questions on anything concerning his
Speaker 1: legal views or personal convictions. Harvard Law professor Noah Feldman
Speaker 1: has written a Bloomberg View column today saying, ethically, there's
Speaker 1: nothing wrong with the nominee speaking about Supreme Court precedent
Speaker 1: or issues that might come before the Court in the future,
Speaker 1: unless the nominee combed did specifically on the facts of
Speaker 1: a particular case. Do you agree with Professor Feilman, Well, no,
Speaker 1: I think I disagree a little bit um. You know,
Speaker 1: while it may not necessarily be a violation of the law,
Speaker 1: I think judicial ethics require judges to approach whatever cases
Speaker 1: they might that might come before them neutrally, and I
Speaker 1: don't think that it would be proper for a judge
Speaker 1: nominated for a seat on the Supreme Court to make
Speaker 1: comments or predictions about how he or she is going
Speaker 1: to rule in cases that haven't even come before him yet.
Speaker 1: And so I think what Neil Gorst was trying to
Speaker 1: say throughout the course of the hearing, whenever he was
Speaker 1: asked to comment on what he would say in this
Speaker 1: or that situation, it was really just that at the
Speaker 1: end of the day, these are the principles of judging
Speaker 1: to which I subscribe and depending on the fact of
Speaker 1: the case and the arguments made in that particular case.
Speaker 1: You know, I will apply those principles neutrally, and I
Speaker 1: think that's the best you can ever asks a Supreme
Speaker 1: Court justice to do. I would be troubled if he
Speaker 1: were you to to opine on on the specifics of
Speaker 1: how he might rule in one situation or another ahead
Speaker 1: of time. He refused to even talk about cases of
Speaker 1: a Supreme Court. There is no ethical rule, is there
Speaker 1: against No, that don't there's there's no other rule that
Speaker 1: prevents him from talking about cases before the Supreme Court.
Speaker 1: But he you know, he actually went through several of
Speaker 1: the precedents um that the Supreme Court has decided, explained them,
Speaker 1: you know, in response to the questions, and explained how
Speaker 1: he would approach applying those presidents. I mean, yeah, I
Speaker 1: think he actually did do a pretty good job of
Speaker 1: of explaining how he felt about those those cases. Michelle.
Speaker 1: One thing that Judge Gorcer has pointed out on several occasions,
Speaker 1: he had said, if you don't like this or that
Speaker 1: Supreme Court decision in many cases, not all, but many,
Speaker 1: Congress has the power to change the law. So, you know,
Speaker 1: voting rights mandatory arbitration clauses. Isn't the real problem for
Speaker 1: people who oppose his nomination at the ballot box rather
Speaker 1: than rather than the courts? Well, without question, you know,
Speaker 1: we in this democracy have the ability to select who
Speaker 1: our representatives are, and if there are issues, we can
Speaker 1: use that as an opportunity to make the distinction of
Speaker 1: what we would prefer in seeing actualized. But what's very
Speaker 1: important to recognize as we consider or the three different
Speaker 1: separation of power and the branches, the coequal branches of government.
Speaker 1: If a legislator passes a piece of legislation and that
Speaker 1: legislation is then challenged, it will end up before the court.
Speaker 1: And if it is an extremely complex and difficult question
Speaker 1: to consider, then that issue will then end up before
Speaker 1: the Supreme Court. And that's why who sits on the
Speaker 1: Supreme Court matters, because it is not a robotic exercise
Speaker 1: that one one piece of legislation will sit for time immemorial.
Speaker 1: If it's a really difficult question, it will end up
Speaker 1: before our court. And that's why who sits on the
Speaker 1: Court and their interpretation of the Constitution in the way
Speaker 1: that you interpret that law using the text, as using
Speaker 1: the text of the concerts as your based documents. That's
Speaker 1: why it is so important that we consider all of
Speaker 1: these factors. You're listening to Bloomberg Law. As he finished
Speaker 1: his Supreme Court confirmation testimony yesterday, Neil Gorcer's left the
Speaker 1: Senators as divided as he found them. Democrats Sheldon white
Speaker 1: House said he saw a pattern on the Supreme Court
Speaker 1: of Republican appointed justices favoring corporate interests at the expense
Speaker 1: of average people. Of course, it's pushed back. I'm distressed
Speaker 1: to hear you think that judges or the Supreme Court
Speaker 1: is an organ of a party. That to me is
Speaker 1: just I know you feel that way, and that distresses me.
Speaker 1: It distresses me too, And I just don't wait a lot.
Speaker 1: I just don't see judging that way. Our guests to
Speaker 1: talk about Neil Gorcer, Raphael Mangua of the Manhattan Institute
Speaker 1: and Michelle Jrondo of the Center for American Progress. Raphael
Speaker 1: Judges love saying they're not politicians in robes. But don't
Speaker 1: we basically know that on the large majority of of
Speaker 1: the important cases, the cases that you know, people pay
Speaker 1: attention to at the Supreme Court Just Justice, cortious course,
Speaker 1: Hitch is going to vote the way most Republicans would like.
Speaker 1: I mean, I don't think that's that's actually that obvious.
Speaker 1: I mean, if you look at Judge Corse's record, I
Speaker 1: think he'd surprise a lot of people, particularly on the left,
Speaker 1: insofar as he's actually very much a friend to criminal defendants,
Speaker 1: UM and and religious minorities when you know, when applying
Speaker 1: the religious freedom restoration. Actually I don't think it's necessarily
Speaker 1: um you know laid out in Stone how he's going
Speaker 1: to rule in a particular case. Now, as a conservative,
Speaker 1: you know you can expect him to apply originalism. And
Speaker 1: the nice thing about originalism is that, irrespective of the
Speaker 1: judge's views, if you apply it correctly, you can kind
Speaker 1: of guess how they're going to rule on a particular
Speaker 1: statute statutory interpretation issue. But that that that doesn't necessarily
Speaker 1: mean that he's ideologically motivated. I mean his ideology. I
Speaker 1: think UM values a certain system of judging. In that
Speaker 1: system of judging, I believe this is one of the
Speaker 1: most neutral, if not the most neutral, that you can apply,
Speaker 1: so you know, to the extended that you get consistent results.
Speaker 1: I don't think it's a function of ideological drive. Michelle.
Speaker 1: Justice Scalia also diverged from strict conservative is in certain
Speaker 1: respects involving police cases. UM. In any other ways, can
Speaker 1: we expect Judge Gorcis to divert from the conservative viewpoint?
Speaker 1: You know? I think if we like, take for instance,
Speaker 1: his his authors on hobby Lobby, which was later affirmed
Speaker 1: by the Supreme Court. But I will say at the
Speaker 1: time it was what many considered a radical reading of
Speaker 1: looking at the roof for laws the Religious Freedom Restoration Act.
Speaker 1: I think many people interpret that as connected to a
Speaker 1: pattern UM that is particularly hostile and its approach to
Speaker 1: women's issues or issues around reproductive rights. And though he
Speaker 1: hasn't ruled directly on the issue of abortion, I think
Speaker 1: many people tend to believe that there is a pattern
Speaker 1: that has emerged, both in his treatment on that issue
Speaker 1: as well as even yesterday the Supreme Court, in an
Speaker 1: eight a ruling UM rejected a theory that he put
Speaker 1: forth around the individuals with disability that and the Chief
Speaker 1: Justice actually authored that opinion in saying that the standard
Speaker 1: that Judge Gorsage used was incorrect. And so I think
Speaker 1: that there are a number of issues where there are
Speaker 1: good reasons why you have seen people on a less
Speaker 1: rays concern about him joining the court. And I think
Speaker 1: it's important to also recognize that these hearings are the
Speaker 1: only opportunity that individuals have to examine a judicial philosophy
Speaker 1: of an individual, and that's why they should be more
Speaker 1: than just a, um, a simple audition. In some ways,
Speaker 1: we should have a sense of who you are. This
Speaker 1: is not four years with the president, but this is
Speaker 1: actually forty years UM, and it's really important to recognize that. Raphael,
Speaker 1: I want to spend just a minute talking about the
Speaker 1: confirmation process. Do you see any realistic chance that Neil
Speaker 1: Gorcitch will not be confirmed to the Supreme Court? No,
Speaker 1: I don't. UM. You know, Chuck Shumer made some noise
Speaker 1: on the Senate floor earlier today, you know, saying indicating
Speaker 1: that that, um, the judge would need sixty votes to
Speaker 1: get through. And if that's really the case, I think
Speaker 1: you'll get it. Um. You know, at some point the
Speaker 1: Republicans will have to, you know, confront the fact that
Speaker 1: they have an option open to them if the Democrats
Speaker 1: do filibuster, and I don't see any reason why they
Speaker 1: shouldn't take it if that, If that's necessary, and Michelle
Speaker 1: what's your opinion on that. Well, I think it's unfortunate.
Speaker 1: As someone who would consider herself a Senate traditionalist, I
Speaker 1: don't think we should get in the habit of blowing
Speaker 1: up a hundred year old rules. I think if there's
Speaker 1: actually an issue, isn't able to get sixty votes, we
Speaker 1: should change the nominee and not change the rules that
Speaker 1: have um conducted our behavior or on high Court nomineeds
Speaker 1: for time immemorial. I think it would be another really
Speaker 1: low blow for the Senate. It only drives further partisanship
Speaker 1: UM here in the nation's capital. But Michelle, do you
Speaker 1: see any chance that the Democrats might might succeed if
Speaker 1: they do do block a vote? Um? Or should we
Speaker 1: just assume it's going to be Justice Corsage? You know,
Speaker 1: I don't think we should ever make any assumptions um.
Speaker 1: I think November eight, twenties six speaking taught us bet.
Speaker 1: But I don't think without uh that it is a
Speaker 1: definite that Judge Corsage will be on the court. I
Speaker 1: think a number of Senators, including Senator Casey and Senator
Speaker 1: Schumer as the minority leader, coming out today strongly that
Speaker 1: is a signal to other people in the caucus, and
Speaker 1: I'm not quite sure that he has the vote needs,
Speaker 1: so I think we should all stay tuned to see
Speaker 1: what happens next. Okay, let's definitely stay tuned, and I
Speaker 1: want to thank our guests. That was Michelle Jawando of
Speaker 1: the Center for American Progress and Raphael Manguel of the
Speaker 1: Manhattan Institute talking about uh Neil Gorcich and his confirmation
Speaker 1: hearing which is concluding today with some outside witnesses talking
Speaker 1: about him. And then the next step will be the
Speaker 1: Senate floor. Coming up, what does the Westminster attack tell
Speaker 1: us about the United Kingdom's vulnerability to terrorists? And we'll
Speaker 1: talk about something else that happened with the Supreme Court yesterday,
Speaker 1: a new ruling involving cheerleading uniforms, and the Supreme Court
Speaker 1: bolsters legal protections for pictures and graphic designs. That's all
Speaker 1: coming up on Bloomberg Law. This is Bloomberg