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

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Speaker 1: It's one of the most consequential acts of a presidency.

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Speaker 1: And on Friday, President Joe Biden introduced Federal Appeals Court

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Speaker 1: Judge Katangi Brown Jackson as his nominee to be the

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Speaker 1: first black woman on the Supreme Court. I'm pleased to

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Speaker 1: nominate Judge Jackson, who brings extraordinary qualifications, deep experience in intellect,

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Speaker 1: and a rigorous judicial record to the Court. In accepting

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Speaker 1: the nomination, Judge Jackson said she hoped to inspire others

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Speaker 1: as she was inspired by Judge Constance Baker Motley, a

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Speaker 1: civil rights icon and the first black woman appointed as

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Speaker 1: a federal judge. I can only hope that my life

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Speaker 1: and career, my love of this country and the Constitution,

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Speaker 1: and my commitment to upholding the rule of law and

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Speaker 1: the sacred principles upon which this great nation was founded

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Speaker 1: will inspire future generations of Americans. My guest is constitutional

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Speaker 1: law professor Leah Littman of the University of Michigan Law School.

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Speaker 1: What does Katangi Brown Jackson bring to the Court. Judge

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Speaker 1: Katangi Brown Jackson brings so many things to the Supreme Court.

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Speaker 1: It would be difficult to list them all. First, she

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Speaker 1: has experience as a public defender. That is a perspective

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Speaker 1: that is currently missing on the sugreed Court. She is

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Speaker 1: also a former district judge. She is also someone with

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Speaker 1: trial experience. Only Justice Soto Mayor on the Supreme Court

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Speaker 1: previously worked as a district judge, someone who actually oversaw trials.

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Speaker 1: Judge Katanji Brown. Jackson also worked on the Sentencing Commission

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Speaker 1: that oversees all federal sentencing within the Federal Court. That's

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Speaker 1: just some of the expertise she brings to the Court.

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Speaker 1: Of course, she also clerks for Justice Brier, so she

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Speaker 1: knows the person who she is replacing. She's a two

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Speaker 1: time graduate of Harvard, both for college and for law school,

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Speaker 1: and she will be the first black woman sir on

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Speaker 1: the Supreme Court. She will be an incredible justice and

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Speaker 1: she's eminently qualified for the position. She's been seen as

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Speaker 1: the leading contender for quite some time. There were two

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Speaker 1: other judges on the short list. What does she bring

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Speaker 1: that set her apart? Joe Jackson brings a kind of

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Speaker 1: professional diversity to the Supreme Court that is really lacking

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Speaker 1: and really important, namely her experience working with indigent criminal defendants. Um,

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Speaker 1: there is no public defender on the Supreme Court. There

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Speaker 1: is no lawyer who has been a civil rights lawyer

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Speaker 1: on the Supreme Court. JUDGEA County Brown Jackson will bring

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Speaker 1: those respectives to the court, and the other nominees did not,

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Speaker 1: even though they would have brought other forms of professional

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Speaker 1: diversity to the court. And President Biden has really emphasized

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Speaker 1: the importance of bringing public defenders, bringing civil rights lawyers

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Speaker 1: into the federal courts. She sort of fits the mold

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Speaker 1: of Justice Brier, would you say through schooling the fact

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Speaker 1: that she clerked for him. I mean, she frankly fits

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Speaker 1: the mold of the traditional Preme Court nominee with respect

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Speaker 1: to her educational background and her educational qualification. She graduated

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Speaker 1: with honors from a top law school. She clerked on

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Speaker 1: the Supreme Court, so she has all of the traditional

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Speaker 1: let's say, educational qualifications and you know, indications of excellence

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Speaker 1: that another Supreme Court nominee would have. She just happened

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Speaker 1: to use that intellectual skill and that expertise to work

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Speaker 1: on behalf of indigent criminal defendants and on behalf of

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Speaker 1: civil rights whereas other nominees have not done that thus far.

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Speaker 1: Will it change the Court to have this new insight

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Speaker 1: that she brings as a black woman. I think it

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Speaker 1: will change the court and be an important perspective for

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Speaker 1: several different reasons. One is, currently Justice Thomas is the

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Speaker 1: only black justice on the Supreme Court, and having another

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Speaker 1: nominee will kind of add some complexity to the idea

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Speaker 1: that Justice Thomas is, you know, the voice of black

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Speaker 1: thought on the Supreme Court. Second is, it will create

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Speaker 1: a very powerful signal that all of a democratic appointees

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Speaker 1: on the Supreme Court are women. Those three justices will

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Speaker 1: probably often find themselves in dissent, and it will be

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Speaker 1: a powerful signal that there is a unified voice speaking

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Speaker 1: on behalf of three women, you know, pushing back against

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Speaker 1: the direction that this very aggressive conservative court may be

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Speaker 1: heading in. I think it is also important to have

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Speaker 1: the perspective of a black woman getting the issues that

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Speaker 1: the Supreme Court is deciding. You know, the Supreme Court

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Speaker 1: currently has on the stock in a case in which

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Speaker 1: the States are asking the courts to overrule Roe versus Ways,

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Speaker 1: the decision recognizing that women have a constitutional rights to

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Speaker 1: decide to end a pregnancy and black women face astonishingly

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Speaker 1: high maternal mortality rate, and it is important. It will

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Speaker 1: be a good thing that when the Court in the

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Speaker 1: future here's issues of reproductive rights, there will be someone

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Speaker 1: on the court with the perspective of a black woman.

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Speaker 1: It will be very important for the Court when they

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Speaker 1: next hear a case involving criminal procedure that there will

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Speaker 1: be someone on the court who has significant experience represent

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Speaker 1: in criminal defendants. Also, an affirmative action cases coming up,

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Speaker 1: and I believe Clarence Thomas doesn't believe in affirmative action. Yes,

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Speaker 1: that is another example where it will be a welcome

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Speaker 1: development to have a more diverse set of voices representing,

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Speaker 1: you know, people of color on the Supreme Court when

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Speaker 1: the Court takes up whether schools can consider race in

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Speaker 1: making admissions decisions. Supreme Court confirmation hearings have become very

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Speaker 1: confrontational and sometimes downright nasty. Less than a year ago,

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Speaker 1: she was confirmed to the d C. Circuit Court of Appeals.

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Speaker 1: But it's different when it's the Supreme Court. It is

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Speaker 1: different when it is the Supreme Court. I think objectively,

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Speaker 1: we should expect that these hearings to be frankly quite easy.

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Speaker 1: You know, she sailed through the last round of confirmation

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Speaker 1: hearings for a reason. She sailed through with the support

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Speaker 1: of Republican senators. Nothing meaningful has changed from then to

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Speaker 1: now except the courts to which she is appointed. She

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Speaker 1: has the same the perb qualification, She has the same

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Speaker 1: excellent professional background, has the same temperament. This is someone who,

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Speaker 1: by any conventional metrics, should sail through the Supreme Court

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Speaker 1: confirmation process. That's not to say she will, but this

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Speaker 1: is someone who's qualifications, whose temperament, whose professional history all

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Speaker 1: suggests this should be a very easy confirmation. And as

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Speaker 1: far as what they could attack her or question her on,

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Speaker 1: it seems like the case involving former White House Counsel

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Speaker 1: Don McGann and his testimony before the committee might stand

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Speaker 1: out to Republicans. How do you think they might use

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Speaker 1: that case to try to claim that she's biased. So

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Speaker 1: that was a case in which Judge Kentanti Brown Jackson

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Speaker 1: rejected a claim of basically absolute immunity by the president's

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Speaker 1: aids against testifying before Congress. That decision is very much

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Speaker 1: consistent with every other court that has considered these expanse

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Speaker 1: of claims of presidential immunity by the Trump administration, nor

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Speaker 1: is anything she said in that opinion substantially differ. It's

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Speaker 1: then what other justices have written about these issues or

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Speaker 1: other related ones. It's positive that they will try to

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Speaker 1: use the opinion, as you know, some sort of fodder

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Speaker 1: for questions, but it's hard to see how that could

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Speaker 1: possibly get any traction. Thanks for your insights, Leah. That's

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Speaker 1: Professor Lea Littman of the University of Michigan Law School.

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Speaker 1: Coming up next, a historic win for the US women's

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

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Speaker 1: Bloomberg Radio. The crowd cheered the win of the US

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Speaker 1: women's national soccer team at the World Cup in France

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Speaker 1: in supporting the team's long fight for equal pay. The

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Speaker 1: legal battle that began with a federal equal pay complaint

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Speaker 1: in ended this week with a historic settlement of allegations

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Speaker 1: that women's soccer players were paid less than their male counterparts.

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Speaker 1: This is a huge win for for all women. This

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Speaker 1: very quickly became something that went far me on the team,

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Speaker 1: and I think we're going to see that in the

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Speaker 1: coming days, and hopefully this will be a day we

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Speaker 1: look back on and uh in a number of years

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Speaker 1: and we're a little bit older, um and say that's

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Speaker 1: the moment that everything changed. That's women's soccer star Megan

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Speaker 1: Rapino on Good Morning America. Talk me about this settlement.

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Speaker 1: The US Soccer Federation agreed to pay twenty four million

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Speaker 1: dollars to the players and committed to providing equal pay

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Speaker 1: for its female players moving forward. Joining me is Nicole Saharski,

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Speaker 1: a partner a Mayor Brown, lead appellate counsel for the

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Speaker 1: women's team in the case, it didn't always appear that

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Speaker 1: this would end in a victory for the women. Tell

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Speaker 1: us about some of the difficulties along the way. Well,

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Speaker 1: I mean the first step that the women took was

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Speaker 1: a pretty difficult one, which is to sue their employer.

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Speaker 1: I mean, for these players, it's their dream to play

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Speaker 1: for the United States women's national team, and you know,

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Speaker 1: to play for your employer, play and represent the United States,

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Speaker 1: and then I feel like you haven't been treated fairly

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Speaker 1: and tried to do something about it. It's just not easy.

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Speaker 1: And so there were players for many years since the

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Speaker 1: team was founded who tried to really get some change

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Speaker 1: from US Soccer and tried to do something about the

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Speaker 1: unequal pay between the men and the women. But it

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Speaker 1: was this group of players in that decided to sue

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Speaker 1: to bring the lawsuit in the first place, and that

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Speaker 1: was a huge step for them, as we take so

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Speaker 1: it must have been quite a blow. Then when a

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Speaker 1: federal judge tossed the suit, what was his reasoning and

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Speaker 1: doing that? So the main reason the district court gave

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Speaker 1: was that the women and the men received approximately the

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Speaker 1: same amount of pay overall, that if you looked at

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Speaker 1: the time period that was covered by the lawsuit, that

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Speaker 1: the women actually made slightly more money than the men.

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Speaker 1: So doesn't that mean it's equal? And our response to

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Speaker 1: that is no, it wasn't equal because the women played

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Speaker 1: a lot more games during that time and frankly won

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Speaker 1: a lot more games than the men. And the way

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Speaker 1: that the pay structure works for both the women and

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Speaker 1: the men is that the players get paid essentially for

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Speaker 1: two things. They get paid for playing, which is the

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Speaker 1: job of basically showing up for work like we all

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Speaker 1: do every day, and then they get paid for a

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Speaker 1: good performance in the same way that you know, a

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Speaker 1: person who sells shoes could get a bonus for each

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Speaker 1: parents shoes that here's she sells. You know, these players,

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Speaker 1: both the women and the men, get bonuses if they

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Speaker 1: placed in certain tournaments, if they qualify for the World Cup,

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Speaker 1: if they win certain tournaments. So the only way that

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Speaker 1: the women were able to earn about the same amount

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Speaker 1: of the pay as the men was by working more

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Speaker 1: and performing better. And that's not equal pay. That's the

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Speaker 1: point we really were trying to make in our briefs

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Speaker 1: on appeal. During the past six years or so of litigation,

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Speaker 1: there were a lot of deprecating and condescending remarks made

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Speaker 1: about the women players by US Soccer. For example, they

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Speaker 1: suggested that women players do not perform equal work, wiring

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Speaker 1: equal skill and effort. And I'm wondering how that affected

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Speaker 1: the players and perhaps the lawsuit. Well, I think it

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Speaker 1: was really disheartening for the players to see that, especially

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Speaker 1: in illegal filing, and to hear that from their employer,

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Speaker 1: especially when they had just won the World Cup, you know,

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Speaker 1: to to have it be suggested or have them be

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Speaker 1: told that they don't perform as well as the man,

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Speaker 1: or that they don't need the same skill as the men,

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Speaker 1: I mean, frankly, that pretty insulting. And there was significant

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Speaker 1: public blowback at the time that actually caused the then

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Speaker 1: president of US Soccer to resign. So, you know, I

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Speaker 1: think it was a bit of a turning point in

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Speaker 1: the litigation because the then president resigned and US Soccer

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Speaker 1: got new lawyers to represent them, and UM, I think

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Speaker 1: needed to back away from those arguments that it had made.

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Speaker 1: The oral arguments in the appeal of the judge tossing

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Speaker 1: the suit were schedule from mark seventh. The Soccer Federation

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Speaker 1: had won below obviously, so why did they settle before

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Speaker 1: the arguments? Well, I'm sure there are a variety of

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Speaker 1: reasons that they would give. I mean, the or arguments

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Speaker 1: were coming up. We filed very compelling brief It wasn't

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Speaker 1: just US that filed the briefs, but we had very

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Speaker 1: strong a meekest support, friend of the court support in

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Speaker 1: the Court of Appeals. UM, the men's national team filed

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Speaker 1: the briefs in support of the women's team. The federal

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Speaker 1: government through the e e o C filed the brief

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Speaker 1: and support of the women's team. Former federal officials, just

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Speaker 1: a long list of folks who joined the a meekest

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Speaker 1: effort in the Court of Appeals to really explain why

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Speaker 1: the District Court was wrong. There was also a recent

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Speaker 1: decision by another court of appeals, the Fourth Circuit, that

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Speaker 1: I think strongly suggested that the reasoning that the judge

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Speaker 1: in the district Court used was wrong. So from a

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Speaker 1: legal perspective, I think we pretty clearly had the better

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Speaker 1: of the arguments, and the tide was against US Soccer.

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Speaker 1: I mean, there's also the court of public opinion that

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Speaker 1: US Soccer is always considering. It's I think been a

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Speaker 1: tough time for that organization, not just because of the

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Speaker 1: equal pay lawsuit, but because of some of the allegation

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Speaker 1: of coach abuse which have come to the form more

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Speaker 1: recently that US Soccer is dealing with. And so you know,

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Speaker 1: the players, I think would were always open to a

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Speaker 1: fair and reasonable settlement of the lawsuits so that they

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Speaker 1: could move together, jointly, move forward together with the US

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Speaker 1: Soccer and really turn the page on this bad chapter

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Speaker 1: of unequal paid. And so you know, there there came

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Speaker 1: to a point where US Soccer was willing to pay

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Speaker 1: the back pay, to acknowledge that the past unequal paid,

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Speaker 1: and to make a commitment of equal pay going forward,

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Speaker 1: and that would that put in place the conditions needed

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Speaker 1: to resolve the lawsuit. So let's talk about the settlement.

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Speaker 1: We've heard the big number twenty four million. What exactly

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Speaker 1: does the settlement entail? So they're there are two key

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Speaker 1: components to the settlement and then there's a very important contingency.

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Speaker 1: The first component of the settlement is looking backwards for

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Speaker 1: the members of the class um actually two classes that

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Speaker 1: they would get paid for the past paid discrimination by

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Speaker 1: US Soccer, and that's what the million is. This is

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Speaker 1: intended to do through two million in direct payments to

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Speaker 1: the class members and a two million dollar fund um

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Speaker 1: that the class members can use and then can draw upon.

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Speaker 1: And then the second part of the settlement is the

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Speaker 1: looking forward part, which is um that US Soccer has

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Speaker 1: to pay the men and the women equally for all

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Speaker 1: tournaments and games in the future, including for the World Cup.

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Speaker 1: And then the important contingency on the settlement is that

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Speaker 1: the settlement will come into effect, assuming it is approved

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Speaker 1: by the District Court, when the collective Bargaining Agreement is ratified.

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Speaker 1: So there are collective bargaining agreement negotiations happening now, They've

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Speaker 1: been happening for a while and coming to an an

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Speaker 1: agreement to those is important that the players have basically

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Speaker 1: an agreement that governs their pay going forward. Do you

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Speaker 1: see the collective bargaining agreement as a big hurdle. I

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Speaker 1: think the players and the then US Soccer have been

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Speaker 1: working on it for months. I think that there that

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Speaker 1: everyone is eager to reach a resolution, and that there's

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Speaker 1: been a lot of progress towards the resolution. So I

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Speaker 1: think folks are anticipating that it will be resolved in

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Speaker 1: the near future. How much does this end gender discrimination

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Speaker 1: in soccer? Well, I think it's an incredibly important first

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Speaker 1: step when you look at it in perspective. The US

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Speaker 1: plans national team was formed in n and the players

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Speaker 1: had never been paid equally since then, and this is

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Speaker 1: the first time that these players brought the e o

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Speaker 1: C complaints and then filed the lawsuit and really got

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Speaker 1: US Soccer to do something about it. Right, that pay

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Speaker 1: will be equal for the US women's national team and

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Speaker 1: the men's national team going forward, and so, you know,

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Speaker 1: we think it's that's an important precedent obviously for the

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Speaker 1: players on the national team, but you know, potentially for

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Speaker 1: other national teams, potentially for other sports, etcetera. A lot

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Speaker 1: of people are looking at this settlement and saying, oh,

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Speaker 1: this is going to lead to pay equity in other

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Speaker 1: sports like beast get ball. So do you see that

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Speaker 1: in this settlement at being made of it? And I

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Speaker 1: wonder if too much is being hoped for. Well, I

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Speaker 1: think that the settlement really puts the focus on women's sports,

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Speaker 1: and even outside the settlement, there's been a lot of

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Speaker 1: focus recently on the value of women's sports. I mean,

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Speaker 1: the US women's national team UM has been incredibly successful

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Speaker 1: and has brought in a lot of money for US Soccer,

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Speaker 1: and I think that they've shown the potential for other

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Speaker 1: women's sports where there perhaps hasn't been as much investment

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Speaker 1: to this point in terms of really what can be

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Speaker 1: done when there is sufficient investment in the sport. So

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Speaker 1: I think each each sport to some extent is a

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Speaker 1: little bit different. But you know, here this settlement has

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Speaker 1: really put the focus on UM what what can be

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Speaker 1: done when a team you know, works hard and can

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Speaker 1: partner together with US Soccer to move forward and kind

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Speaker 1: of bring the bring the investment in the sport in

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Speaker 1: a good direction, and then that you know, equal pay

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Speaker 1: can be achieved. Do you think this could have a

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Speaker 1: ripple effect on how female athletes are treated, even in

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Speaker 1: college sports. I think in recent years there have been

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Speaker 1: some serious inequities and injustices that have come to light.

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Speaker 1: If it um the m C a Final four tournament

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Speaker 1: where you know, the women had a tiny weight room

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Speaker 1: and the men had a huge, beautiful weight room and

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Speaker 1: a giant buffet for lunch and the women had a

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Speaker 1: tiny box lunch. You know, once some of that, once

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Speaker 1: some of those um inequities have been brought to light,

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Speaker 1: you know, they've been remedied, and I think people realize

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Speaker 1: that it's unfair. So whether it's you know, not having

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Speaker 1: the same investments in the sports, or whether it's unequal pay,

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Speaker 1: I think the more attention that can be put on

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Speaker 1: these and the more investment in the sport, the better.

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Speaker 1: Any final thoughts, I think we were incredibly excited about

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Speaker 1: the settlement. I mean, to lose some ray judgment and

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Speaker 1: then turn it around and be able to get that

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Speaker 1: substantial settlement without even having to argue the case in

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Speaker 1: the ninth circuit was terrific. And the players have worked

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Speaker 1: so hard on this. I mean, it's really they are

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Speaker 1: so busy in their day to day lives with their

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Speaker 1: training schedules and representing the United States and playing for

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Speaker 1: their club teams. You know the fact that they took

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Speaker 1: on this significant investment of bringing a lawsuit and you know,

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Speaker 1: working on the lawsuit day to day. It's just been

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Speaker 1: um an incredible amount of work for them, and I

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Speaker 1: think they should be really proud of themselves. I mean,

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Speaker 1: I'm really proud of them, and I'm really happy that

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Speaker 1: I've had a chance to participate in this process and help.

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Speaker 1: Thanks for being on the show. That's Nicole so Harski

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Speaker 1: of Mayor Brown and that's it for this edition of

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Speaker 1: The Bloomberg Law Show. Remember you can always get the

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