1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloombird Law with June Brasso from Bloomberg Radio. 2 00:00:09,160 --> 00:00:12,080 Speaker 1: In the Buoy, Mr and Mrs Smith Brad Pitt and 3 00:00:12,119 --> 00:00:16,560 Speaker 1: Angelina Joe Lee are married assassins working for competing agencies 4 00:00:16,600 --> 00:00:21,040 Speaker 1: who repeatedly try to kill each other off. Sweetheart, I 5 00:00:21,079 --> 00:00:23,599 Speaker 1: have an unusual problem Jane, who obviously want me dead, 6 00:00:24,520 --> 00:00:27,960 Speaker 1: and I'm less and less concerned fear well being. So 7 00:00:28,000 --> 00:00:34,120 Speaker 1: what do we do? Sweetheart? Come to Daddy? Who did? Daddy? 8 00:00:34,200 --> 00:00:40,959 Speaker 1: Now still baby? In real life, Pitt and Joe Lee 9 00:00:41,000 --> 00:00:44,160 Speaker 1: are involved in another kind of fight, a drawn out 10 00:00:44,240 --> 00:00:48,200 Speaker 1: constanty battle over their five minor children, and Joe Lee 11 00:00:48,240 --> 00:00:51,199 Speaker 1: has won the latest round, winning a court decision that 12 00:00:51,280 --> 00:00:54,560 Speaker 1: means the custody fight, which was nearing an end, could 13 00:00:54,640 --> 00:00:58,280 Speaker 1: just be getting started. Joining me a celebrity divorce attorney, 14 00:00:58,320 --> 00:01:02,880 Speaker 1: Christopher Melcher of Waltzer Mal Chair to put this into context, 15 00:01:03,240 --> 00:01:06,280 Speaker 1: this is a custody fight that's been going on for 16 00:01:06,480 --> 00:01:09,200 Speaker 1: something like five years. One of the kids is already 17 00:01:09,680 --> 00:01:12,640 Speaker 1: is nineteen and not subject to custody arrangement, so this 18 00:01:12,680 --> 00:01:15,240 Speaker 1: has been going on for a long time. It is 19 00:01:15,360 --> 00:01:21,160 Speaker 1: the divorce started in and they've been fighting over custody 20 00:01:21,200 --> 00:01:25,200 Speaker 1: from the beginning with allegations by Angelina that there was 21 00:01:25,840 --> 00:01:29,200 Speaker 1: some kind of violent or abusive problem on an airplane 22 00:01:29,800 --> 00:01:34,080 Speaker 1: and that led to investigations and I think some monitored 23 00:01:34,160 --> 00:01:37,560 Speaker 1: visitation that Brad had submitted to. And it's just been 24 00:01:37,600 --> 00:01:40,880 Speaker 1: going on and on for five years, which is is 25 00:01:40,920 --> 00:01:45,320 Speaker 1: this damaging the kids. I've heard about divorce where there 26 00:01:45,360 --> 00:01:48,360 Speaker 1: is a custody battle and then years later, you know 27 00:01:48,360 --> 00:01:52,520 Speaker 1: there's a renewed custody battle to change the visitation schedule 28 00:01:52,680 --> 00:01:56,120 Speaker 1: or whatever. Has this been just going on continually. This 29 00:01:56,200 --> 00:01:59,639 Speaker 1: is the first time there's been a decision in the case. 30 00:02:00,360 --> 00:02:04,000 Speaker 1: So the case has had different facets to it. There 31 00:02:04,120 --> 00:02:08,079 Speaker 1: was the terminating their marital status to restore them as 32 00:02:08,080 --> 00:02:11,480 Speaker 1: single people. There was dealing with some property issues, and 33 00:02:11,520 --> 00:02:14,000 Speaker 1: then custody has been coming in and out of the 34 00:02:14,080 --> 00:02:19,200 Speaker 1: case over the years. There was a request by Brad 35 00:02:19,320 --> 00:02:24,760 Speaker 1: last year for equal custody time and that's when Angelina 36 00:02:24,919 --> 00:02:31,160 Speaker 1: really started to oppose this and was also being criticized 37 00:02:31,200 --> 00:02:37,040 Speaker 1: by the judge going back to I believe of her 38 00:02:37,560 --> 00:02:43,200 Speaker 1: refusal to share more custody time with Brad. Understandably, Angelina's 39 00:02:43,280 --> 00:02:47,080 Speaker 1: claiming that it wouldn't be safe for the kids to 40 00:02:47,160 --> 00:02:50,280 Speaker 1: be with Brad so much time. That's her view of 41 00:02:50,320 --> 00:02:53,640 Speaker 1: the world. The judge didn't agree with that and wanted 42 00:02:53,639 --> 00:02:57,639 Speaker 1: Brad to have more custody time. And it was after 43 00:02:57,880 --> 00:03:01,280 Speaker 1: the judge was making those moves that Jelina sought to 44 00:03:01,320 --> 00:03:05,880 Speaker 1: disqualify the judge. I understand in cases where a parent 45 00:03:06,280 --> 00:03:10,160 Speaker 1: claims the other is abusive that sometimes they need to 46 00:03:10,200 --> 00:03:12,280 Speaker 1: go in and fight for custody, and it can go 47 00:03:12,360 --> 00:03:15,520 Speaker 1: on for a long time. But a parent needs to 48 00:03:15,600 --> 00:03:19,120 Speaker 1: see that the cost of the litigation, the harm that's 49 00:03:19,160 --> 00:03:22,760 Speaker 1: done by an ongoing custody dispute in it of itself 50 00:03:22,840 --> 00:03:27,440 Speaker 1: has an effect on kids. So a California appeals court 51 00:03:27,560 --> 00:03:31,440 Speaker 1: agreed with Joe Lee that the private judge deciding who 52 00:03:31,480 --> 00:03:35,880 Speaker 1: gets custody of the children should be disqualified because he 53 00:03:36,000 --> 00:03:41,320 Speaker 1: failed to sufficiently disclose business relationships with Pitt's attorneys. First 54 00:03:41,360 --> 00:03:46,240 Speaker 1: of all, what exactly is a private judge in California? 55 00:03:46,600 --> 00:03:50,720 Speaker 1: Under our constitution or state constitution. The parties to a 56 00:03:50,840 --> 00:03:55,800 Speaker 1: case may agree to the appointment of a temporary judge. 57 00:03:56,360 --> 00:04:00,800 Speaker 1: This is usually somebody who's a retired public judge, as 58 00:04:00,800 --> 00:04:03,080 Speaker 1: in the case of Judge Outer Kirk here, or it 59 00:04:03,080 --> 00:04:06,080 Speaker 1: can be an attorney with ten or more years of experience. 60 00:04:06,680 --> 00:04:10,200 Speaker 1: So our law allows for the appointment of a decision 61 00:04:10,240 --> 00:04:14,560 Speaker 1: maker in the superior court or trial courts would then 62 00:04:14,600 --> 00:04:18,600 Speaker 1: appoint that person to serve and be granted pretty much 63 00:04:18,640 --> 00:04:21,440 Speaker 1: all the powers that a regular judge would have, And 64 00:04:21,480 --> 00:04:25,800 Speaker 1: that's a commonplace in bigger cases because the parties get 65 00:04:25,880 --> 00:04:30,560 Speaker 1: to select someone who they think would be fair and 66 00:04:30,680 --> 00:04:33,800 Speaker 1: who was experienced in the type of matter that they have. 67 00:04:34,320 --> 00:04:38,200 Speaker 1: It gives the parties the full attention of that judicial 68 00:04:38,240 --> 00:04:41,880 Speaker 1: officer rather than going to public court who may have 69 00:04:42,080 --> 00:04:45,719 Speaker 1: twenty matters on their calendar per day. It's just really 70 00:04:45,760 --> 00:04:48,760 Speaker 1: talking about minutes rather than hours that can be spent 71 00:04:49,000 --> 00:04:52,760 Speaker 1: on each case. So this is something that's the feature 72 00:04:53,040 --> 00:04:57,440 Speaker 1: of pretty much every celebrity case and certainly the big 73 00:04:57,480 --> 00:05:01,599 Speaker 1: dollar cases. They are using these temporary judges. But the 74 00:05:01,680 --> 00:05:06,000 Speaker 1: controversy is that they're paid, and does this create two 75 00:05:06,080 --> 00:05:09,599 Speaker 1: systems of justice, one for the very wealthy and one 76 00:05:09,680 --> 00:05:12,960 Speaker 1: for everybody else? And so there has been debate over 77 00:05:13,000 --> 00:05:15,400 Speaker 1: the years about this, and we saw it crop up 78 00:05:15,440 --> 00:05:18,640 Speaker 1: in this opinion by the California Court of Appeal that's 79 00:05:18,720 --> 00:05:22,000 Speaker 1: been critical of that system. And how much are these 80 00:05:22,040 --> 00:05:27,760 Speaker 1: private judges paid, so the parties can select this temporary 81 00:05:27,880 --> 00:05:31,200 Speaker 1: judge by agreement, so it cannot be forced on a party. 82 00:05:31,560 --> 00:05:35,880 Speaker 1: And the hourly rates for a private judge in California 83 00:05:35,920 --> 00:05:40,160 Speaker 1: would range from five hundred dollars to maybe a thousand 84 00:05:40,160 --> 00:05:43,040 Speaker 1: dollars an hour, and that's pretty much in line with 85 00:05:43,120 --> 00:05:46,360 Speaker 1: what these parties would be paying their counsel, and just 86 00:05:46,400 --> 00:05:48,960 Speaker 1: depends on how long the case would go on. We've 87 00:05:49,000 --> 00:05:51,960 Speaker 1: seen certainly hundreds of thousands of dollars and fees be 88 00:05:52,040 --> 00:05:55,320 Speaker 1: paid to a temporary judge, and even millions of dollars 89 00:05:55,360 --> 00:05:58,880 Speaker 1: and fees in the very long cases. It sounds like 90 00:05:59,000 --> 00:06:02,320 Speaker 1: a lot of money and certainly is to pay this 91 00:06:02,440 --> 00:06:05,159 Speaker 1: decision maker. But there is a cost of going to 92 00:06:05,240 --> 00:06:08,919 Speaker 1: public court for the parties, not really in paying the court, 93 00:06:08,960 --> 00:06:11,919 Speaker 1: of course, but a cost to the litigants of having 94 00:06:11,960 --> 00:06:15,160 Speaker 1: to pay their attorneys and expert witnesses for a hearing 95 00:06:15,640 --> 00:06:19,040 Speaker 1: that may never happen. It actually could cost them less 96 00:06:19,080 --> 00:06:22,200 Speaker 1: money to pay this temporary judge to hear their matter 97 00:06:22,800 --> 00:06:25,520 Speaker 1: rather than the uncertainty of going to a public court 98 00:06:25,760 --> 00:06:29,520 Speaker 1: and wasting perhaps many, many thousands of dollars for a 99 00:06:29,560 --> 00:06:33,040 Speaker 1: hearing that never went forward. So the custody battle has 100 00:06:33,080 --> 00:06:36,760 Speaker 1: been going on for about five years. Judge outer Kirk 101 00:06:36,880 --> 00:06:41,360 Speaker 1: makes a tentative decision giving joint custody of the children, 102 00:06:41,640 --> 00:06:44,599 Speaker 1: and Jolie says, the judge has a conflict. But he 103 00:06:44,640 --> 00:06:48,359 Speaker 1: officiated at their weddings, so both parties know him. I 104 00:06:48,440 --> 00:06:51,400 Speaker 1: don't know how he found himself in that role, but 105 00:06:51,560 --> 00:06:55,640 Speaker 1: he officiated their marriage and then he was selected to 106 00:06:55,760 --> 00:07:01,560 Speaker 1: officiate their divorce. He was agreed upon counseled by both 107 00:07:01,680 --> 00:07:06,920 Speaker 1: parties when they appointed him years ago, and when they 108 00:07:06,960 --> 00:07:10,480 Speaker 1: selected Judge outer Kirk, he was obligated to make a 109 00:07:10,480 --> 00:07:15,160 Speaker 1: disclosure of other cases that Judge outer Kirk had with 110 00:07:15,200 --> 00:07:18,800 Speaker 1: the counsel for either party, and he made that disclosure. 111 00:07:18,960 --> 00:07:21,880 Speaker 1: Judge outer Kirk disclosed that he had some cases with 112 00:07:21,960 --> 00:07:25,640 Speaker 1: Brad's counsel and he also had some cases with Angelina's 113 00:07:25,640 --> 00:07:28,960 Speaker 1: counsel at the time, Laura Wasser, and they were all 114 00:07:29,080 --> 00:07:32,920 Speaker 1: fine with that knowledge that Judge outerer Kirk was handling 115 00:07:32,960 --> 00:07:36,200 Speaker 1: cases for counsel for other parties that either Brad or 116 00:07:36,240 --> 00:07:40,920 Speaker 1: Angelina's counsel were representing them in those other matters. For compensation, 117 00:07:41,360 --> 00:07:45,840 Speaker 1: Judge outer Kirk's appointment was given for a limited duration, 118 00:07:46,120 --> 00:07:50,520 Speaker 1: and each time that expired he was reappointed by further 119 00:07:50,600 --> 00:07:54,200 Speaker 1: agreement of the parties, and he made some further disclosures 120 00:07:54,200 --> 00:07:58,840 Speaker 1: of other cases that he had with counsel for either party. Eventually, 121 00:07:59,680 --> 00:08:04,720 Speaker 1: Laura Wasser exits and Angelina is now represented by a 122 00:08:04,760 --> 00:08:08,680 Speaker 1: different lawyer who's in San Francisco. And after Judge pouter 123 00:08:08,800 --> 00:08:14,320 Speaker 1: Kirk had been reappointed, his appointment order went through December 124 00:08:16,080 --> 00:08:19,640 Speaker 1: or until a judgment of custody was made, whichever was later. 125 00:08:20,280 --> 00:08:23,640 Speaker 1: So he had been appointed, he made his disclosures at 126 00:08:23,680 --> 00:08:28,760 Speaker 1: the time, and after Brad had filed for joint custody, 127 00:08:28,880 --> 00:08:35,319 Speaker 1: Angelina's new lawyer innocently apparently asked for an updated disclosure 128 00:08:35,559 --> 00:08:38,640 Speaker 1: out of the blue, even though the appointment order was 129 00:08:38,720 --> 00:08:42,520 Speaker 1: not coming up for renewal, and Joe joder Kirk responded 130 00:08:42,640 --> 00:08:46,200 Speaker 1: with two or three additional matters that he had with 131 00:08:46,240 --> 00:08:51,000 Speaker 1: Brad's counsel. And that's when Angelina cried foul. It smacked 132 00:08:51,040 --> 00:08:56,120 Speaker 1: of strategy and tactics. And this was noted by Brad's 133 00:08:56,160 --> 00:08:59,400 Speaker 1: counsel and even by one of the justices at the 134 00:08:59,440 --> 00:09:02,200 Speaker 1: court of a real argument. There was a comment that 135 00:09:02,520 --> 00:09:06,360 Speaker 1: why was it okay for Angelina to accept Judge outer 136 00:09:06,480 --> 00:09:11,680 Speaker 1: Kirk knowing that he had twelve prior paid assignments by 137 00:09:11,679 --> 00:09:14,720 Speaker 1: Brad's accouncil. But it was not okay when she learned 138 00:09:14,760 --> 00:09:17,680 Speaker 1: it might be fourteen or fifteen. And I thought that 139 00:09:17,880 --> 00:09:23,200 Speaker 1: remark was cynical, critical of Angelina's position. That would have 140 00:09:23,240 --> 00:09:27,280 Speaker 1: been telegraphing that she was raising really a technical argument, 141 00:09:27,360 --> 00:09:30,880 Speaker 1: not an ethical breach. But the appeals Court found that 142 00:09:30,960 --> 00:09:34,240 Speaker 1: he had committed an ethical breach that might cause an 143 00:09:34,240 --> 00:09:38,240 Speaker 1: objective person, aware of all the facts, reasonably to entertain 144 00:09:38,280 --> 00:09:41,360 Speaker 1: a doubt as to the judge's ability to be impartial. 145 00:09:41,640 --> 00:09:44,320 Speaker 1: Why did they come to that decision considering all that 146 00:09:44,360 --> 00:09:48,840 Speaker 1: you've told us. That's what makes cases unpredictable. That the 147 00:09:48,920 --> 00:09:52,880 Speaker 1: court could have found that the failure to disclose these 148 00:09:52,880 --> 00:09:57,280 Speaker 1: two or three additional matters were technical, weren't enough to 149 00:09:57,400 --> 00:10:01,160 Speaker 1: cause a reasonable person to entertain doubt as to Judge 150 00:10:01,160 --> 00:10:05,880 Speaker 1: outer Kirk's impartiality. And that was what I was foolishly 151 00:10:06,000 --> 00:10:12,079 Speaker 1: predicting would happen, because why would a reasonable person entertained 152 00:10:12,080 --> 00:10:16,640 Speaker 1: doubt as to Judge outer Kirk's impartiality knowing that there 153 00:10:16,640 --> 00:10:20,720 Speaker 1: were twelve disclosed matters that Angelina and her legal team 154 00:10:20,800 --> 00:10:24,560 Speaker 1: was accepting of and then adding these two or three 155 00:10:24,600 --> 00:10:27,400 Speaker 1: other matters were really of the same type, with all 156 00:10:27,440 --> 00:10:30,240 Speaker 1: of a sudden cast doubt as to whether Judge outer 157 00:10:30,360 --> 00:10:33,720 Speaker 1: Kirk could be impartial. It makes no sense to me, 158 00:10:34,240 --> 00:10:37,040 Speaker 1: but I'm not the decision maker. And the Court of 159 00:10:37,040 --> 00:10:41,160 Speaker 1: Appeal said that every matter essentially could count, and that 160 00:10:41,280 --> 00:10:45,200 Speaker 1: these matters count, and that this was an ethical breach. 161 00:10:45,600 --> 00:10:49,560 Speaker 1: I think what's happening behind the scenes is more of 162 00:10:49,600 --> 00:10:53,480 Speaker 1: a criticism of the private judging system than anything that 163 00:10:53,559 --> 00:10:57,240 Speaker 1: Judge outer Kirk himself did, because if we just look 164 00:10:57,280 --> 00:10:59,600 Speaker 1: at it on the facts of this case, I would 165 00:10:59,600 --> 00:11:01,960 Speaker 1: think it's more of a technical than an ethical breach. 166 00:11:02,360 --> 00:11:06,080 Speaker 1: And we do have the criticism in the opinion of 167 00:11:06,120 --> 00:11:08,880 Speaker 1: the private judging system. And this may have been a 168 00:11:08,920 --> 00:11:12,360 Speaker 1: message to private judges that if you're going to undertake 169 00:11:12,400 --> 00:11:15,280 Speaker 1: this work and be paid for it, which the Court 170 00:11:15,280 --> 00:11:19,400 Speaker 1: of Appeal seemed uneasy with that concept, that they better 171 00:11:19,679 --> 00:11:22,640 Speaker 1: follow the rules to the tea. And they're the Court 172 00:11:22,640 --> 00:11:25,160 Speaker 1: of Appeal, they get to make the rules, and that's 173 00:11:25,200 --> 00:11:28,439 Speaker 1: what they said and tell us about the concurring opinion. 174 00:11:29,320 --> 00:11:35,640 Speaker 1: Justice Siegel wrote a concurring opinion to express his reservations 175 00:11:35,679 --> 00:11:39,440 Speaker 1: about the private judging system, and he wrote separately because 176 00:11:39,480 --> 00:11:42,080 Speaker 1: that wasn't an issue that was even raised by Angelina. 177 00:11:42,200 --> 00:11:46,600 Speaker 1: In her briefing, Angelina was attacking Judge outer Kirk's failure 178 00:11:46,679 --> 00:11:50,440 Speaker 1: to disclose. She said that Judge outer Kirk was biased 179 00:11:50,480 --> 00:11:54,160 Speaker 1: against her because he had wanted Brad to have equal 180 00:11:54,200 --> 00:11:58,000 Speaker 1: custody time despite this prior alleged incident, and wouldn't let 181 00:11:58,000 --> 00:12:01,800 Speaker 1: the children testify at a hearing. But she never attacked 182 00:12:02,120 --> 00:12:06,080 Speaker 1: the private judging system because she had agreed to that system. 183 00:12:06,240 --> 00:12:09,560 Speaker 1: Just a Siegel on his own brought up this question 184 00:12:09,640 --> 00:12:13,880 Speaker 1: of can we pay a private judge? So what happens now? 185 00:12:14,160 --> 00:12:17,560 Speaker 1: Do they pick another private judge and go through all 186 00:12:17,600 --> 00:12:22,600 Speaker 1: the proceedings again. So Judge outer Kirk has been disqualified 187 00:12:22,760 --> 00:12:25,680 Speaker 1: and the decision that Judge outer Kirk had made about 188 00:12:25,880 --> 00:12:30,800 Speaker 1: joint custody for Brad never became final and is certainly void. 189 00:12:31,160 --> 00:12:35,960 Speaker 1: Angelina in her briefing was careful to say that she 190 00:12:36,160 --> 00:12:39,680 Speaker 1: was okay with what Judge outer Kirk was doing before 191 00:12:39,760 --> 00:12:42,880 Speaker 1: he failed to disclose these two or three additional matters, 192 00:12:43,200 --> 00:12:46,240 Speaker 1: and was really offended just by the actions that he 193 00:12:46,280 --> 00:12:50,000 Speaker 1: took after he failed to disclose those matters and was 194 00:12:50,120 --> 00:12:53,240 Speaker 1: making that argument, I believe because she wanted to preserve 195 00:12:53,559 --> 00:12:56,640 Speaker 1: the other rulings that Judge outer Kirk had made, including 196 00:12:56,760 --> 00:13:01,359 Speaker 1: divorcing them. And if Judge outer Kirk's rulings were invalidated 197 00:13:01,440 --> 00:13:04,439 Speaker 1: from the get go, well they would still be married 198 00:13:04,480 --> 00:13:07,559 Speaker 1: to each other and all the property division orders everything 199 00:13:07,600 --> 00:13:09,880 Speaker 1: else in the case would also be invalidated. So I 200 00:13:09,880 --> 00:13:12,080 Speaker 1: don't think she wanted that there will be a new 201 00:13:12,160 --> 00:13:15,840 Speaker 1: judge appointed. That judge will be a public judge unless 202 00:13:15,920 --> 00:13:20,520 Speaker 1: Angelina and Brad agree to another privately compensated judge, and 203 00:13:20,880 --> 00:13:23,600 Speaker 1: that will have to go back l a superior court 204 00:13:23,679 --> 00:13:29,640 Speaker 1: for assignment. And delay would benefit Angelina because the status 205 00:13:29,720 --> 00:13:33,480 Speaker 1: quo is the parenting plan that exists right now, which 206 00:13:33,640 --> 00:13:36,560 Speaker 1: presumably is in her favor in terms of the amount 207 00:13:36,559 --> 00:13:39,040 Speaker 1: of time that she's allocated, and so the longer it 208 00:13:39,080 --> 00:13:42,160 Speaker 1: goes on, the longer she has that time. Thanks Chris, 209 00:13:42,480 --> 00:13:47,920 Speaker 1: that's Christopher Melcher of Waltz or Melcher. Progressive groups seeking 210 00:13:47,960 --> 00:13:50,560 Speaker 1: to remake the Supreme Court had hoped to spend this 211 00:13:50,640 --> 00:13:54,120 Speaker 1: summer helping win confirmation of what was expected to be 212 00:13:54,160 --> 00:13:58,640 Speaker 1: the first black woman nominated as a justice instead, Justice 213 00:13:58,679 --> 00:14:02,520 Speaker 1: Stephen Bryer opted not to retire, and advocates who are 214 00:14:02,559 --> 00:14:06,360 Speaker 1: focused on the court's conservative bent have watched their issue 215 00:14:06,400 --> 00:14:10,400 Speaker 1: mostly received from view joining me as Madison Alder Bloomberg 216 00:14:10,440 --> 00:14:15,760 Speaker 1: Law Reporter. What were the progressives focused on before the 217 00:14:15,880 --> 00:14:19,040 Speaker 1: end of the Supreme Court term? So this past term, 218 00:14:19,400 --> 00:14:22,360 Speaker 1: the issue of Briar's retirement has really been front and 219 00:14:22,440 --> 00:14:26,680 Speaker 1: center for progressive organizations like Demand Justice, which is a 220 00:14:26,680 --> 00:14:30,320 Speaker 1: progressive judicial advocacy group, really put this in the front 221 00:14:30,360 --> 00:14:34,280 Speaker 1: of people's minds. They had a billboard bus that was 222 00:14:34,520 --> 00:14:37,800 Speaker 1: circling the Supreme Court calling for Briar to retire and 223 00:14:38,240 --> 00:14:41,200 Speaker 1: that would make room for Biden to appoint the first 224 00:14:41,480 --> 00:14:44,080 Speaker 1: black woman justice, which he said he would do on 225 00:14:44,120 --> 00:14:48,080 Speaker 1: the campaign trail. But when the term came to a close, 226 00:14:48,360 --> 00:14:51,280 Speaker 1: and you know, Briar, in an interview with Sannon said 227 00:14:51,280 --> 00:14:53,920 Speaker 1: he's happy where he is on the Court and he 228 00:14:53,960 --> 00:14:56,640 Speaker 1: hasn't made any decision on retirement. That kind of closed 229 00:14:56,640 --> 00:15:01,120 Speaker 1: the door on this. Pretty personally said rallying cry for 230 00:15:01,440 --> 00:15:05,880 Speaker 1: progressives or pretty strong rallying cry for progressives that Biden 231 00:15:05,920 --> 00:15:09,560 Speaker 1: had an opportunity here to appoint the first black woman justice, 232 00:15:09,600 --> 00:15:13,720 Speaker 1: and now that leaves open the possibility of other areas 233 00:15:13,760 --> 00:15:17,800 Speaker 1: for progressives to try to get the attention of their 234 00:15:17,840 --> 00:15:22,240 Speaker 1: constituencies and and try to keep the focus on the court. 235 00:15:22,760 --> 00:15:25,200 Speaker 1: You know, we should point out that even if Briar 236 00:15:25,280 --> 00:15:29,480 Speaker 1: had retired, it would have just been substituting one liberal 237 00:15:29,560 --> 00:15:32,840 Speaker 1: justice for another. It wouldn't have made any change in 238 00:15:33,160 --> 00:15:37,880 Speaker 1: the conservative majority on the court. Right. Brian Fallon, who 239 00:15:38,000 --> 00:15:41,600 Speaker 1: is the executive director of Demand Justice, told me that 240 00:15:42,000 --> 00:15:45,920 Speaker 1: they never had any illusions about Briar retiring and being 241 00:15:45,960 --> 00:15:50,720 Speaker 1: replaced necessarily making an impact in some of the broader 242 00:15:51,080 --> 00:15:54,160 Speaker 1: structural changes they'd like to see in the judiciary. Right, 243 00:15:54,280 --> 00:15:58,480 Speaker 1: Like you said, it's replacing liberal justice with the liberal justice. 244 00:15:58,920 --> 00:16:02,440 Speaker 1: They're also interested it in seeing the Supreme Court expanded 245 00:16:02,480 --> 00:16:06,280 Speaker 1: and some of these changes coming about. Um, so this 246 00:16:06,320 --> 00:16:10,040 Speaker 1: is something that might have helped with the margins, but 247 00:16:10,680 --> 00:16:13,280 Speaker 1: in their eyes, it wasn't the end of the line. 248 00:16:13,960 --> 00:16:17,880 Speaker 1: Now what's interesting is Demand Justice is working with some 249 00:16:18,040 --> 00:16:22,720 Speaker 1: student groups now. So Fallon told me that the way 250 00:16:22,720 --> 00:16:25,880 Speaker 1: that they're looking at keeping the attention on the court 251 00:16:26,640 --> 00:16:29,560 Speaker 1: is by focusing on the next term, which is already 252 00:16:29,600 --> 00:16:33,120 Speaker 1: shaping up to you know, deal with some pretty hot 253 00:16:33,160 --> 00:16:38,480 Speaker 1: button issues like abortion and gun rights UM and possibly 254 00:16:38,480 --> 00:16:43,400 Speaker 1: affirmative action. And so through those issues, Demand Justice is 255 00:16:43,480 --> 00:16:46,640 Speaker 1: teaming up with student groups like March for Our Lives 256 00:16:47,280 --> 00:16:51,840 Speaker 1: and Sunrise Movement to really highlight some of these issues 257 00:16:52,200 --> 00:16:55,480 Speaker 1: going forward and kind of fire up their base. Are 258 00:16:55,520 --> 00:16:58,680 Speaker 1: they anticipating that the decisions are not going to be 259 00:16:59,000 --> 00:17:03,520 Speaker 1: what liberals would want to see? I think that's the position. 260 00:17:03,640 --> 00:17:07,480 Speaker 1: Advocacy group typically taken these kinds of scenarios and there's 261 00:17:07,520 --> 00:17:09,800 Speaker 1: a hot button issue, and especially given the sixth three 262 00:17:09,840 --> 00:17:13,600 Speaker 1: majority of the majority at the Superhan Court, they are 263 00:17:13,720 --> 00:17:18,800 Speaker 1: always going to advocate for um the fact that they 264 00:17:18,840 --> 00:17:21,760 Speaker 1: could possibly get the result that they're looking for in 265 00:17:21,800 --> 00:17:24,639 Speaker 1: these cases. It doesn't necessarily mean that that's going to happen, 266 00:17:24,840 --> 00:17:29,520 Speaker 1: but you know, if the justices vote, uh maybe in 267 00:17:29,640 --> 00:17:32,760 Speaker 1: line with the political parties that appointed them, that that 268 00:17:32,840 --> 00:17:36,760 Speaker 1: could be the result. One group, She Will Rise. I 269 00:17:36,800 --> 00:17:39,320 Speaker 1: hadn't heard of this group before. Tell me about that group. 270 00:17:40,600 --> 00:17:44,679 Speaker 1: So She Will Rise is an initiative that was first 271 00:17:44,680 --> 00:17:48,520 Speaker 1: started and incubated under Demand Justice, as that was described 272 00:17:48,560 --> 00:17:52,520 Speaker 1: to me, and then it has moved under a new 273 00:17:52,680 --> 00:17:57,240 Speaker 1: organization called Take Creative Control UM and it is squarely 274 00:17:57,280 --> 00:18:02,080 Speaker 1: focused on advocacy surrounding appointing the first black woman justice 275 00:18:02,080 --> 00:18:04,680 Speaker 1: to the Supreme Court. So some of their work has 276 00:18:04,760 --> 00:18:09,960 Speaker 1: been painting a mural in in the Shaw neighborhood of Washington, 277 00:18:10,040 --> 00:18:14,040 Speaker 1: d c UM that depicts black women and the Supreme 278 00:18:14,040 --> 00:18:18,400 Speaker 1: Court kind of envisioning this idea of a black woman justice. UM. 279 00:18:18,440 --> 00:18:22,600 Speaker 1: They also collected, you know, a huge group photo of 280 00:18:23,400 --> 00:18:26,040 Speaker 1: a whole bunch of black girls who were dressed in 281 00:18:26,119 --> 00:18:29,640 Speaker 1: judicial roads to kind of show what the future would 282 00:18:29,680 --> 00:18:34,200 Speaker 1: look like for the Court. And so their advocacy is 283 00:18:34,320 --> 00:18:37,520 Speaker 1: kind of in that. Vein and Kim Tigner, who who 284 00:18:37,560 --> 00:18:41,720 Speaker 1: co founded this organization, told me UM that they're they're 285 00:18:41,760 --> 00:18:45,640 Speaker 1: planning on keeping the focus on that by supporting Biden's 286 00:18:46,040 --> 00:18:49,440 Speaker 1: judicial nominees, many of which has been black women. UM, 287 00:18:49,560 --> 00:18:54,359 Speaker 1: and kind of supporting this pipeline that's building for black 288 00:18:54,400 --> 00:18:57,560 Speaker 1: women judges and creating the foundation for the first black 289 00:18:57,600 --> 00:19:01,760 Speaker 1: woman justice on the Supreme Court. You're also focusing on 290 00:19:02,240 --> 00:19:05,720 Speaker 1: the clerks at the Supreme Court. Do they get demographic 291 00:19:05,840 --> 00:19:10,239 Speaker 1: information about the law clerks that the justices employ. So 292 00:19:10,320 --> 00:19:13,720 Speaker 1: that's not something that the Court typically readily gives out, 293 00:19:13,760 --> 00:19:16,240 Speaker 1: but UM, it's one of the areas. She said it 294 00:19:16,240 --> 00:19:20,920 Speaker 1: was an example of something that her organization is going 295 00:19:20,960 --> 00:19:23,600 Speaker 1: to you know, prompts the Supreme Court on is going 296 00:19:23,640 --> 00:19:28,080 Speaker 1: to ask about demographic information about clerks, because that is, 297 00:19:28,600 --> 00:19:31,879 Speaker 1: as she explained, it, a pipeline in itself to becoming 298 00:19:31,880 --> 00:19:36,400 Speaker 1: a future justice. So Madison Brian Fallon of Demand Justice 299 00:19:37,000 --> 00:19:39,560 Speaker 1: said he expects more people to call on Briar to 300 00:19:39,600 --> 00:19:43,560 Speaker 1: step down next summer, So likely if these calls are 301 00:19:43,600 --> 00:19:47,680 Speaker 1: going to take place again when there is another opportunity 302 00:19:47,760 --> 00:19:50,879 Speaker 1: for prior to retire. Of course, he could retire at 303 00:19:50,920 --> 00:19:53,120 Speaker 1: any point, but it is more likely that he would 304 00:19:53,119 --> 00:19:56,320 Speaker 1: did this at the end of a Supreme Court term 305 00:19:56,359 --> 00:19:59,960 Speaker 1: and when that happens. Uh Balan said he could see 306 00:20:00,160 --> 00:20:03,160 Speaker 1: potentially more people getting on board with a more Democrats 307 00:20:03,160 --> 00:20:07,280 Speaker 1: getting on board with this um because their biggest critics 308 00:20:07,680 --> 00:20:13,440 Speaker 1: during this past session were people who said, give Briar's face, 309 00:20:13,640 --> 00:20:15,440 Speaker 1: give him the benefit of the doubt, maybe he will 310 00:20:15,480 --> 00:20:19,879 Speaker 1: retire and in in falonce you uh, those people now 311 00:20:20,040 --> 00:20:23,960 Speaker 1: might be a little bit more uh willing to call 312 00:20:24,000 --> 00:20:26,040 Speaker 1: on him to retire now that he has already not 313 00:20:26,119 --> 00:20:29,359 Speaker 1: done at once. So they believe that calls will grow 314 00:20:29,920 --> 00:20:32,720 Speaker 1: at the end of next term. After the Cenni interview, 315 00:20:33,480 --> 00:20:36,679 Speaker 1: it seems like, you know, Briar is not even considering 316 00:20:37,080 --> 00:20:40,600 Speaker 1: retirement at this point and loving the role he's in, 317 00:20:41,040 --> 00:20:44,800 Speaker 1: which is remarkably similar to what happened with the late 318 00:20:45,240 --> 00:20:48,760 Speaker 1: Justice Ruth Bader Ginsburg who became the leader of the 319 00:20:49,000 --> 00:20:52,639 Speaker 1: liberal block and held onto it and there's nothing that 320 00:20:52,720 --> 00:20:55,959 Speaker 1: can be done to force him to retire. Right, this 321 00:20:56,040 --> 00:21:00,400 Speaker 1: is ultimately Briar's decision, and as he said that interview 322 00:21:00,520 --> 00:21:04,320 Speaker 1: your he's happy where he is. But since then, um on, 323 00:21:04,720 --> 00:21:10,640 Speaker 1: then again Amy Klobatar during Clobatar, she kind of uh 324 00:21:11,119 --> 00:21:15,280 Speaker 1: said Briar should should potentially think about retiring as soon 325 00:21:15,320 --> 00:21:18,119 Speaker 1: as possible. Um So, you know, it's already something that 326 00:21:18,440 --> 00:21:21,639 Speaker 1: we're seeing Democrats continue to talk about, even if the 327 00:21:21,760 --> 00:21:25,439 Speaker 1: calls don't feel like this is something that could immediately 328 00:21:25,880 --> 00:21:31,840 Speaker 1: take place now Because are liberals disappointed in the commission 329 00:21:32,680 --> 00:21:35,960 Speaker 1: that's been set up by the White House to examine 330 00:21:36,520 --> 00:21:41,800 Speaker 1: issues surrounding the court, Well, there's certainly have been some 331 00:21:41,920 --> 00:21:47,119 Speaker 1: criticisms of this commission. Early on, there were criticisms that, uh, 332 00:21:47,160 --> 00:21:50,399 Speaker 1: they were potentially going to talk about issues and not 333 00:21:50,520 --> 00:21:54,000 Speaker 1: really come to any solutions. The commission is set up 334 00:21:54,119 --> 00:22:00,119 Speaker 1: to to not give recommendations specifically, it's going to do 335 00:22:00,600 --> 00:22:03,040 Speaker 1: an exploration of a lot of the reforms that could 336 00:22:03,040 --> 00:22:06,920 Speaker 1: happen at the Supreme Court, but not necessarily be prescriptive 337 00:22:07,119 --> 00:22:10,800 Speaker 1: to the president. UM. So that was that was something 338 00:22:10,920 --> 00:22:12,840 Speaker 1: that I think some of these groups have taken issue with. 339 00:22:13,400 --> 00:22:16,639 Speaker 1: But more recently, Uh, you know, we've seen now that 340 00:22:16,680 --> 00:22:20,440 Speaker 1: we've we've had witnesses come before the commission and UM, 341 00:22:20,520 --> 00:22:25,399 Speaker 1: they've done more publication meetings. Uh, there have been criticisms 342 00:22:25,440 --> 00:22:29,439 Speaker 1: that it isn't very reflective of the people that the 343 00:22:29,440 --> 00:22:32,720 Speaker 1: Supreme Court decision has impact most and looks a lot 344 00:22:32,880 --> 00:22:36,359 Speaker 1: like an academic conference. UM. A lot of the people 345 00:22:36,560 --> 00:22:41,159 Speaker 1: attended the same law schools. UM. There was actually a 346 00:22:41,200 --> 00:22:44,680 Speaker 1: few moments in some of the recent hearings where someone 347 00:22:44,760 --> 00:22:48,520 Speaker 1: was speaking to their former professor UM or their former student. 348 00:22:48,800 --> 00:22:51,359 Speaker 1: It happened a couple of times with the most recent hearing, 349 00:22:51,960 --> 00:22:54,719 Speaker 1: and advocates say that, you know, this is an issue, 350 00:22:54,800 --> 00:22:59,000 Speaker 1: because this is an urgent issue, the issue of the 351 00:22:59,040 --> 00:23:03,159 Speaker 1: Supreme Court UM and not being representative of the American public, 352 00:23:03,640 --> 00:23:08,760 Speaker 1: and if they want to create a solution, they should 353 00:23:08,840 --> 00:23:12,919 Speaker 1: include people who are most impacted by this decision. It 354 00:23:12,960 --> 00:23:15,000 Speaker 1: seems that packing the court is the only way they're 355 00:23:15,040 --> 00:23:18,680 Speaker 1: really going to change the conservative majority on the Court, 356 00:23:18,760 --> 00:23:22,560 Speaker 1: at least to me. But it's such an uphill battle 357 00:23:23,080 --> 00:23:25,880 Speaker 1: to the progressive groups you've talked to really have any 358 00:23:26,000 --> 00:23:29,359 Speaker 1: hope that that could be accomplished, that they could pack 359 00:23:29,440 --> 00:23:33,080 Speaker 1: the court. So I spoke a little bit to Brian 360 00:23:33,119 --> 00:23:36,920 Speaker 1: Fellon about this again. He's the executive director at Demand Justice, 361 00:23:37,200 --> 00:23:40,879 Speaker 1: and he told me that they know that this isn't 362 00:23:41,000 --> 00:23:46,000 Speaker 1: something immediate. Right the sixty vote threshold is for legislation 363 00:23:46,280 --> 00:23:48,640 Speaker 1: is still in place in the Senate, and it doesn't 364 00:23:48,720 --> 00:23:51,119 Speaker 1: look like that's going anywhere for the time being. So 365 00:23:51,280 --> 00:23:56,120 Speaker 1: Democrats can't just approve an expansion of the Supreme Court 366 00:23:56,119 --> 00:23:58,320 Speaker 1: on their own. They would likely need Republican support and 367 00:23:58,359 --> 00:24:01,520 Speaker 1: that is not going to happen. So they know that 368 00:24:01,640 --> 00:24:04,880 Speaker 1: this is something that that they aren't going to achieve 369 00:24:05,000 --> 00:24:08,560 Speaker 1: in the short term, but he sees that as as 370 00:24:08,600 --> 00:24:11,320 Speaker 1: a long term goal. You know, may be similar to 371 00:24:12,280 --> 00:24:15,679 Speaker 1: the way that the calls to get rid of the 372 00:24:15,760 --> 00:24:21,080 Speaker 1: legiblative filibuster have been uh increasing over over the years, 373 00:24:21,320 --> 00:24:26,000 Speaker 1: Maybe support among Democrats for court reform and especially for 374 00:24:26,560 --> 00:24:29,639 Speaker 1: Supreme Court expansion would grow over time. You know, you 375 00:24:29,720 --> 00:24:33,840 Speaker 1: always hear about Demand Justice, but there's another advocacy group, 376 00:24:33,960 --> 00:24:38,160 Speaker 1: Alliance for Justice, that's been around a lot longer, and 377 00:24:38,280 --> 00:24:42,160 Speaker 1: the founder is going to leave after forty two years. 378 00:24:42,680 --> 00:24:45,800 Speaker 1: So Nan Aaron, who is the founder of the Alliance 379 00:24:45,840 --> 00:24:50,360 Speaker 1: for Justice, is stepping down. She announced this in January. 380 00:24:50,440 --> 00:24:54,000 Speaker 1: It's going to be effective in September, and um she's 381 00:24:54,000 --> 00:24:57,000 Speaker 1: going to be replaced with Rakim Brookes who is an 382 00:24:57,040 --> 00:24:59,720 Speaker 1: a c l U strategist and he's going to be 383 00:24:59,800 --> 00:25:02,840 Speaker 1: take being over over that role and over the organization, 384 00:25:02,880 --> 00:25:07,040 Speaker 1: which is a really key organization for progressives when it 385 00:25:07,080 --> 00:25:13,040 Speaker 1: comes to UH judiciary issues, including judicial nominations, and Nan 386 00:25:13,080 --> 00:25:18,800 Speaker 1: Aaron has definitely been a prominent figure in the judicial 387 00:25:18,800 --> 00:25:22,760 Speaker 1: nomination space for for liberals. So you have Demand Justice, 388 00:25:22,880 --> 00:25:27,639 Speaker 1: Alliance for Justice. What other liberal or progressive judicial advocacy 389 00:25:27,680 --> 00:25:30,719 Speaker 1: groups are they're out there. On the court reform side, 390 00:25:30,760 --> 00:25:34,520 Speaker 1: there is take Back the Court that is an organization 391 00:25:34,560 --> 00:25:38,960 Speaker 1: that is also pushing for Supreme Court reform and UM 392 00:25:39,000 --> 00:25:43,879 Speaker 1: specifically pushing for you know, basically anything that would expand 393 00:25:44,200 --> 00:25:47,520 Speaker 1: or great term limits, that sort of thing. And then 394 00:25:47,560 --> 00:25:51,200 Speaker 1: you also have People's Parody Project which is mostly a 395 00:25:51,280 --> 00:25:55,359 Speaker 1: student led and young lawyer led group. Um, they're fairly new. 396 00:25:55,600 --> 00:26:00,000 Speaker 1: They have been pretty vocal in the last few months 397 00:26:00,400 --> 00:26:05,280 Speaker 1: on the briar fronts and also on judicial nominations, pushing 398 00:26:05,400 --> 00:26:09,400 Speaker 1: for more diversity in those nominations. So I think those 399 00:26:09,400 --> 00:26:12,760 Speaker 1: are kind of the fours that come to mind for 400 00:26:12,800 --> 00:26:16,440 Speaker 1: me at least, Demand Justice, Alliance for Justice, Take Back 401 00:26:16,440 --> 00:26:18,880 Speaker 1: to the Court, and People's Parity projects. Thanks for being 402 00:26:18,880 --> 00:26:22,960 Speaker 1: on the show, Madison. That's Madison Alder, Bloomberg Law reporter. 403 00:26:23,480 --> 00:26:26,840 Speaker 1: Coming up next on The Bloomberg Law Show, the Justice 404 00:26:26,880 --> 00:26:31,719 Speaker 1: Department is refusing to defend Republican Representative Moe Brooks in 405 00:26:31,760 --> 00:26:34,919 Speaker 1: a lawsuit over the Capitol Riot. I'm June Grosso and 406 00:26:34,920 --> 00:26:36,280 Speaker 1: you're listening to Bloomberg