WEBVTT - Justices Kagan and Alito Testify at Congress

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. You may not

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<v Speaker 1>have heard that two Supreme Court Justices testified before the

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<v Speaker 1>House Appropriation Subcommittee last week because it didn't get much

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<v Speaker 1>press coverage. It was a standard budget hearing, with Justice

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<v Speaker 1>a Elana Kagan and Samuel Alito asking for increased funding

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<v Speaker 1>for the Court's budget, but it was the first time

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<v Speaker 1>since the justice appeared before the committee for this rare,

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<v Speaker 1>unscripted dialogue. Joining me as constitutional law experts, Stephen Vladdock,

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<v Speaker 1>professor at the University of Texas Law School, So Steve,

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<v Speaker 1>Justice Alito referred to himself and Justice Kagan as rookies.

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<v Speaker 1>How is it decided which justices testify and when? Yeah,

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<v Speaker 1>I think it's a bit of a short straw. I

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<v Speaker 1>think the justices in general aren't necessarily enthusiastic about the

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<v Speaker 1>prospect of, you know, being open to live, not always

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<v Speaker 1>scripted questioning on television on camera. Historically, in the past,

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<v Speaker 1>it has actually been, you know, a function that Justices

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<v Speaker 1>Briar and Kennedy seemed to revel. And I guess we're

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<v Speaker 1>seeing this new you know, tag team of Kagan and Aledo,

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<v Speaker 1>perhaps because of Justice Kennedy's departure. Now, one thing that

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<v Speaker 1>came under scrutiny. The Supreme Court considers itself exempt from

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<v Speaker 1>the code of conduct that lower courts are bound by.

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<v Speaker 1>And the lawmakers pressed the justices on this, and Justice

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<v Speaker 1>Kagan said that the Chief Justice is considering whether to

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<v Speaker 1>create a code of conduct for Supreme Court. Justice is

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<v Speaker 1>the Chief Justice is studying the question of whether to

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<v Speaker 1>have a code of judicial conduct that's applicable only to

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<v Speaker 1>the United States Supreme Court. So that's something that we

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<v Speaker 1>have not discussed as a conference yet, and that has

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<v Speaker 1>pros and cons, I'm sure, but it's something that's um

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<v Speaker 1>that's intellect very seriously about how important is it for

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<v Speaker 1>the court to have that? Oh, I think it's enormously important, June.

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<v Speaker 1>I mean, there's a there's a good reason why the

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<v Speaker 1>Supreme Court historically has viewed itself as being not covered

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<v Speaker 1>by these statutes, and that has to do with, you know,

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<v Speaker 1>views about congressive constitutional power to bind the Supreme Court

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<v Speaker 1>as opposed to the lower federal courts. But that doesn't

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<v Speaker 1>mean that the justices shouldn't have their own rules that

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<v Speaker 1>they publicize, that they you know, make every effort to follow,

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<v Speaker 1>and that when they, you know, somehow want to foul them,

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<v Speaker 1>there's some kind of public acknowledgement and inquurity. I think

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<v Speaker 1>the real question June is not whether the Court's going

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<v Speaker 1>to adopt some kind of internal ethics code, and then

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<v Speaker 1>the real questions how's it going to be enforced? And

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<v Speaker 1>you know, if and when a justice commits an ethical

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<v Speaker 1>faux pa um, is there going to be some kind

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<v Speaker 1>of public accounting that there's gonna be some kind of

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<v Speaker 1>grievance procedure. You know, it's one thing to say, yes,

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<v Speaker 1>will generally be bound by these rules, but those rules

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<v Speaker 1>are only going to be as good as the notion

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<v Speaker 1>that there's some consequence for violating them. Now, Democratic Representative

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<v Speaker 1>Stanford Bishop site of National Law Journal study about the

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<v Speaker 1>low numbers of minority law klerks that's come up in

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<v Speaker 1>prior hearings. Are the justices doing any better in that regard?

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<v Speaker 1>I think June and Summer steps they are, and Summer

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<v Speaker 1>steps they aren't. I mean, I think, um Justice Kegan

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<v Speaker 1>pointed out that this term is one of the first times,

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<v Speaker 1>if not the first time ever, that the majority of

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<v Speaker 1>the clerks at the Supreme Court have been women. But

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<v Speaker 1>I think there's still, you know, dramatic underrepresentation on the

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<v Speaker 1>Court of people of color, of women of color, of

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<v Speaker 1>a whole bunch of other you know, minority, ethnic and

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<v Speaker 1>national origin groups. And I think, you know, the Justices are,

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<v Speaker 1>perhaps because of the Havanaugh confirmation implications and continuing effects,

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<v Speaker 1>increasingly aware of this. I think between part of the

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<v Speaker 1>problem is that and Justice Kegan just lead. I think

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<v Speaker 1>both alluded to this in their testimony. There's still serious

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<v Speaker 1>problems of underrepresentation among the cadre of law students from

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<v Speaker 1>whom the Justices are hiring their law clerks. And so

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<v Speaker 1>I think, you know, the justices can do better, but

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<v Speaker 1>the larger stories the law schools have to be doing

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<v Speaker 1>better as well. They appeared before cameras at the hearing.

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<v Speaker 1>They still don't want cameras filming Supreme Court oral arguments,

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<v Speaker 1>something justices often say they're in favor of before they

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<v Speaker 1>get on the court, then all of a sudden they're

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<v Speaker 1>not in favor of it. Do their arguments have any

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<v Speaker 1>weight in this world where everyone has a camera on

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<v Speaker 1>their phone and you have pictures of everything. Yeah, I mean,

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<v Speaker 1>you know, it's funny. I wonder if if maybe there's

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<v Speaker 1>some movement publicly about this this view. I mean, the

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<v Speaker 1>these confirmation flights tend to be the moments when the

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<v Speaker 1>Court is most exposed to public scrutiny, and it might

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<v Speaker 1>actually be better for everybody if the Court was also

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<v Speaker 1>more accessible to the public and the more mundane day

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<v Speaker 1>to day stuff it's doing. You know, the concern you

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<v Speaker 1>always hear from the justices, and we heard this from

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<v Speaker 1>Justice Alito at the hearing is that, you know, the

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<v Speaker 1>presence of television cameras and of the sort of live

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<v Speaker 1>same day recording would incentivize, you know, grandstanding by lawyers,

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<v Speaker 1>would sort of push people to aim for sound bites

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<v Speaker 1>as opposed to actually digging on the you know, the

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<v Speaker 1>heart of the case. I'd have to say, I mean,

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<v Speaker 1>there a number of lower federal courts June As you know,

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<v Speaker 1>that do video record their arguments, some of them even

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<v Speaker 1>live student arguments. To my understand them, that's never been

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<v Speaker 1>a concern anyone's raised in that context. I guess I

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<v Speaker 1>just worried that, you know, this could be something of

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<v Speaker 1>a straw man um an argument's being deployed that wouldn't

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<v Speaker 1>actually come to fruition and practice, and that the cost

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<v Speaker 1>is access to these recordings on the same day basis.

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<v Speaker 1>It seems like there's a compromise that, you know, even

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<v Speaker 1>if we're not going to move towards video recording at

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<v Speaker 1>the Supreme Court, we know the Court has the capability

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<v Speaker 1>of releasing same day audio from oral arguments. You know,

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<v Speaker 1>I think that could be something we see the Court

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<v Speaker 1>moved toward as a matter of course, as opposed to

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<v Speaker 1>for exceptional cases the next year or two. But I

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<v Speaker 1>think it's going to take a majority of the justices,

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<v Speaker 1>you know, get him over this, and that might be

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<v Speaker 1>a generational phenomenon. Before we're going to see cameras in

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<v Speaker 1>the Supreme Court room and the audio comes out typically

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<v Speaker 1>on a Friday afternoon, the audio from the whole week.

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<v Speaker 1>Let's turn to the federal courts in general. Mitch McConnell,

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<v Speaker 1>Senate majority leader, is focused on transport being the judiciary

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<v Speaker 1>to a more conservative bent. Is there a danger in

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<v Speaker 1>his apparent rush to confirm judges and I think there's

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<v Speaker 1>always a danger, regardless of what your politics are of

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<v Speaker 1>you know, of Congress sort of abandoned its traditions in

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<v Speaker 1>the name of, you know, sort of winning short term

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<v Speaker 1>political fights. I think we've seen in the last couple

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<v Speaker 1>of months some new precedents being set with regard to

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<v Speaker 1>appellate judges. We saw you in for the first time ever,

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<v Speaker 1>a federal judge being confirmed on a tie breaking vote

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<v Speaker 1>by the Vice President. We've seen the demise of the

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<v Speaker 1>so called blue slip policy, where senators from a particular

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<v Speaker 1>state could block nominees for at least circuit judge ships

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<v Speaker 1>in their state. And I think, you know, the real

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<v Speaker 1>question is what kind of precedent is going to step

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<v Speaker 1>going forward. I mean, the next time, you know, the

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<v Speaker 1>Democrats control the White House in the Senate, are we

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<v Speaker 1>going to see a similarly radical push to transform the

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<v Speaker 1>courts in the other direction or the courts just going

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<v Speaker 1>to become a ping pong ball bouncing back and forth

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<v Speaker 1>from one partisan extreme to the other. And I guess

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<v Speaker 1>my concern in the long term is that we need

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<v Speaker 1>the principal center. What makes the federal courts work best

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<v Speaker 1>is an array of viewpoints from across the spectrum, including

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<v Speaker 1>folks in the middle. And the more that we see

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<v Speaker 1>this kind of approach judicial confirmations, the more we're going

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<v Speaker 1>to see what happens to the courts mirroring what's happened

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<v Speaker 1>in Congress, where we've seen a hollowing out of the

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<v Speaker 1>center and an increase in push towards both wings. I

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<v Speaker 1>don't think that's healthy in the long term for the

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<v Speaker 1>federal courts. Is there any judge you think that has

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<v Speaker 1>been confirmed that is not qualified to be there? You know,

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<v Speaker 1>qualifications are so much in the eyes of the holder.

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<v Speaker 1>I mean, I do think if you look at like

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<v Speaker 1>the youngest judges me just last week, Alison Russian was

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<v Speaker 1>confirmed at the age of thirty seven to the Fourth Circuit,

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<v Speaker 1>I don't think that, you know, qualifications in that context

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<v Speaker 1>should be the be all end all. I think the

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<v Speaker 1>question is are we really creating a federal bench that

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<v Speaker 1>represents the country at large? And my concern is the

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<v Speaker 1>more we're pushing to the extremes of either party, the

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<v Speaker 1>less that's going to be the case in the country

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<v Speaker 1>that is divided so evenly down the middle. Thanks Steve,

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<v Speaker 1>we have to leave it there that Steve Lattic, a

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<v Speaker 1>professor at the University of Texas School of Law. Thanks

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<v Speaker 1>for listening to the Bloomberg Law Podcast. You can subscribe

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<v Speaker 1>and listen to the show on Apple Podcasts, SoundCloud, and

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<v Speaker 1>on bloomberg dot com slash podcast. I'm June Brosso. This

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<v Speaker 1>is Bloomberg