Speaker 1: This is Bloombird Law with June Brasso from Bloomberg Radio.
Speaker 1: In the Buoy, Mr and Mrs Smith Brad Pitt and
Speaker 1: Angelina Joe Lee are married assassins working for competing agencies
Speaker 1: who repeatedly try to kill each other off. Sweetheart, I
Speaker 1: have an unusual problem Jane, who obviously want me dead,
Speaker 1: and I'm less and less concerned fear well being. So
Speaker 1: what do we do? Sweetheart? Come to Daddy? Who did? Daddy?
Speaker 1: Now still baby? In real life, Pitt and Joe Lee
Speaker 1: are involved in another kind of fight, a drawn out
Speaker 1: constanty battle over their five minor children, and Joe Lee
Speaker 1: has won the latest round, winning a court decision that
Speaker 1: means the custody fight, which was nearing an end, could
Speaker 1: just be getting started. Joining me a celebrity divorce attorney,
Speaker 1: Christopher Melcher of Waltzer Mal Chair to put this into context,
Speaker 1: this is a custody fight that's been going on for
Speaker 1: something like five years. One of the kids is already
Speaker 1: is nineteen and not subject to custody arrangement, so this
Speaker 1: has been going on for a long time. It is
Speaker 1: the divorce started in and they've been fighting over custody
Speaker 1: from the beginning with allegations by Angelina that there was
Speaker 1: some kind of violent or abusive problem on an airplane
Speaker 1: and that led to investigations and I think some monitored
Speaker 1: visitation that Brad had submitted to. And it's just been
Speaker 1: going on and on for five years, which is is
Speaker 1: this damaging the kids. I've heard about divorce where there
Speaker 1: is a custody battle and then years later, you know
Speaker 1: there's a renewed custody battle to change the visitation schedule
Speaker 1: or whatever. Has this been just going on continually. This
Speaker 1: is the first time there's been a decision in the case.
Speaker 1: So the case has had different facets to it. There
Speaker 1: was the terminating their marital status to restore them as
Speaker 1: single people. There was dealing with some property issues, and
Speaker 1: then custody has been coming in and out of the
Speaker 1: case over the years. There was a request by Brad
Speaker 1: last year for equal custody time and that's when Angelina
Speaker 1: really started to oppose this and was also being criticized
Speaker 1: by the judge going back to I believe of her
Speaker 1: refusal to share more custody time with Brad. Understandably, Angelina's
Speaker 1: claiming that it wouldn't be safe for the kids to
Speaker 1: be with Brad so much time. That's her view of
Speaker 1: the world. The judge didn't agree with that and wanted
Speaker 1: Brad to have more custody time. And it was after
Speaker 1: the judge was making those moves that Jelina sought to
Speaker 1: disqualify the judge. I understand in cases where a parent
Speaker 1: claims the other is abusive that sometimes they need to
Speaker 1: go in and fight for custody, and it can go
Speaker 1: on for a long time. But a parent needs to
Speaker 1: see that the cost of the litigation, the harm that's
Speaker 1: done by an ongoing custody dispute in it of itself
Speaker 1: has an effect on kids. So a California appeals court
Speaker 1: agreed with Joe Lee that the private judge deciding who
Speaker 1: gets custody of the children should be disqualified because he
Speaker 1: failed to sufficiently disclose business relationships with Pitt's attorneys. First
Speaker 1: of all, what exactly is a private judge in California?
Speaker 1: Under our constitution or state constitution. The parties to a
Speaker 1: case may agree to the appointment of a temporary judge.
Speaker 1: This is usually somebody who's a retired public judge, as
Speaker 1: in the case of Judge Outer Kirk here, or it
Speaker 1: can be an attorney with ten or more years of experience.
Speaker 1: So our law allows for the appointment of a decision
Speaker 1: maker in the superior court or trial courts would then
Speaker 1: appoint that person to serve and be granted pretty much
Speaker 1: all the powers that a regular judge would have, And
Speaker 1: that's a commonplace in bigger cases because the parties get
Speaker 1: to select someone who they think would be fair and
Speaker 1: who was experienced in the type of matter that they have.
Speaker 1: It gives the parties the full attention of that judicial
Speaker 1: officer rather than going to public court who may have
Speaker 1: twenty matters on their calendar per day. It's just really
Speaker 1: talking about minutes rather than hours that can be spent
Speaker 1: on each case. So this is something that's the feature
Speaker 1: of pretty much every celebrity case and certainly the big
Speaker 1: dollar cases. They are using these temporary judges. But the
Speaker 1: controversy is that they're paid, and does this create two
Speaker 1: systems of justice, one for the very wealthy and one
Speaker 1: for everybody else? And so there has been debate over
Speaker 1: the years about this, and we saw it crop up
Speaker 1: in this opinion by the California Court of Appeal that's
Speaker 1: been critical of that system. And how much are these
Speaker 1: private judges paid, so the parties can select this temporary
Speaker 1: judge by agreement, so it cannot be forced on a party.
Speaker 1: And the hourly rates for a private judge in California
Speaker 1: would range from five hundred dollars to maybe a thousand
Speaker 1: dollars an hour, and that's pretty much in line with
Speaker 1: what these parties would be paying their counsel, and just
Speaker 1: depends on how long the case would go on. We've
Speaker 1: seen certainly hundreds of thousands of dollars and fees be
Speaker 1: paid to a temporary judge, and even millions of dollars
Speaker 1: and fees in the very long cases. It sounds like
Speaker 1: a lot of money and certainly is to pay this
Speaker 1: decision maker. But there is a cost of going to
Speaker 1: public court for the parties, not really in paying the court,
Speaker 1: of course, but a cost to the litigants of having
Speaker 1: to pay their attorneys and expert witnesses for a hearing
Speaker 1: that may never happen. It actually could cost them less
Speaker 1: money to pay this temporary judge to hear their matter
Speaker 1: rather than the uncertainty of going to a public court
Speaker 1: and wasting perhaps many, many thousands of dollars for a
Speaker 1: hearing that never went forward. So the custody battle has
Speaker 1: been going on for about five years. Judge outer Kirk
Speaker 1: makes a tentative decision giving joint custody of the children,
Speaker 1: and Jolie says, the judge has a conflict. But he
Speaker 1: officiated at their weddings, so both parties know him. I
Speaker 1: don't know how he found himself in that role, but
Speaker 1: he officiated their marriage and then he was selected to
Speaker 1: officiate their divorce. He was agreed upon counseled by both
Speaker 1: parties when they appointed him years ago, and when they
Speaker 1: selected Judge outer Kirk, he was obligated to make a
Speaker 1: disclosure of other cases that Judge outer Kirk had with
Speaker 1: the counsel for either party, and he made that disclosure.
Speaker 1: Judge outer Kirk disclosed that he had some cases with
Speaker 1: Brad's counsel and he also had some cases with Angelina's
Speaker 1: counsel at the time, Laura Wasser, and they were all
Speaker 1: fine with that knowledge that Judge outerer Kirk was handling
Speaker 1: cases for counsel for other parties that either Brad or
Speaker 1: Angelina's counsel were representing them in those other matters. For compensation,
Speaker 1: Judge outer Kirk's appointment was given for a limited duration,
Speaker 1: and each time that expired he was reappointed by further
Speaker 1: agreement of the parties, and he made some further disclosures
Speaker 1: of other cases that he had with counsel for either party. Eventually,
Speaker 1: Laura Wasser exits and Angelina is now represented by a
Speaker 1: different lawyer who's in San Francisco. And after Judge pouter
Speaker 1: Kirk had been reappointed, his appointment order went through December
Speaker 1: or until a judgment of custody was made, whichever was later.
Speaker 1: So he had been appointed, he made his disclosures at
Speaker 1: the time, and after Brad had filed for joint custody,
Speaker 1: Angelina's new lawyer innocently apparently asked for an updated disclosure
Speaker 1: out of the blue, even though the appointment order was
Speaker 1: not coming up for renewal, and Joe joder Kirk responded
Speaker 1: with two or three additional matters that he had with
Speaker 1: Brad's counsel. And that's when Angelina cried foul. It smacked
Speaker 1: of strategy and tactics. And this was noted by Brad's
Speaker 1: counsel and even by one of the justices at the
Speaker 1: court of a real argument. There was a comment that
Speaker 1: why was it okay for Angelina to accept Judge outer
Speaker 1: Kirk knowing that he had twelve prior paid assignments by
Speaker 1: Brad's accouncil. But it was not okay when she learned
Speaker 1: it might be fourteen or fifteen. And I thought that
Speaker 1: remark was cynical, critical of Angelina's position. That would have
Speaker 1: been telegraphing that she was raising really a technical argument,
Speaker 1: not an ethical breach. But the appeals Court found that
Speaker 1: he had committed an ethical breach that might cause an
Speaker 1: objective person, aware of all the facts, reasonably to entertain
Speaker 1: a doubt as to the judge's ability to be impartial.
Speaker 1: Why did they come to that decision considering all that
Speaker 1: you've told us. That's what makes cases unpredictable. That the
Speaker 1: court could have found that the failure to disclose these
Speaker 1: two or three additional matters were technical, weren't enough to
Speaker 1: cause a reasonable person to entertain doubt as to Judge
Speaker 1: outer Kirk's impartiality. And that was what I was foolishly
Speaker 1: predicting would happen, because why would a reasonable person entertained
Speaker 1: doubt as to Judge outer Kirk's impartiality knowing that there
Speaker 1: were twelve disclosed matters that Angelina and her legal team
Speaker 1: was accepting of and then adding these two or three
Speaker 1: other matters were really of the same type, with all
Speaker 1: of a sudden cast doubt as to whether Judge outer
Speaker 1: Kirk could be impartial. It makes no sense to me,
Speaker 1: but I'm not the decision maker. And the Court of
Speaker 1: Appeal said that every matter essentially could count, and that
Speaker 1: these matters count, and that this was an ethical breach.
Speaker 1: I think what's happening behind the scenes is more of
Speaker 1: a criticism of the private judging system than anything that
Speaker 1: Judge outer Kirk himself did, because if we just look
Speaker 1: at it on the facts of this case, I would
Speaker 1: think it's more of a technical than an ethical breach.
Speaker 1: And we do have the criticism in the opinion of
Speaker 1: the private judging system. And this may have been a
Speaker 1: message to private judges that if you're going to undertake
Speaker 1: this work and be paid for it, which the Court
Speaker 1: of Appeal seemed uneasy with that concept, that they better
Speaker 1: follow the rules to the tea. And they're the Court
Speaker 1: of Appeal, they get to make the rules, and that's
Speaker 1: what they said and tell us about the concurring opinion.
Speaker 1: Justice Siegel wrote a concurring opinion to express his reservations
Speaker 1: about the private judging system, and he wrote separately because
Speaker 1: that wasn't an issue that was even raised by Angelina.
Speaker 1: In her briefing, Angelina was attacking Judge outer Kirk's failure
Speaker 1: to disclose. She said that Judge outer Kirk was biased
Speaker 1: against her because he had wanted Brad to have equal
Speaker 1: custody time despite this prior alleged incident, and wouldn't let
Speaker 1: the children testify at a hearing. But she never attacked
Speaker 1: the private judging system because she had agreed to that system.
Speaker 1: Just a Siegel on his own brought up this question
Speaker 1: of can we pay a private judge? So what happens now?
Speaker 1: Do they pick another private judge and go through all
Speaker 1: the proceedings again. So Judge outer Kirk has been disqualified
Speaker 1: and the decision that Judge outer Kirk had made about
Speaker 1: joint custody for Brad never became final and is certainly void.
Speaker 1: Angelina in her briefing was careful to say that she
Speaker 1: was okay with what Judge outer Kirk was doing before
Speaker 1: he failed to disclose these two or three additional matters,
Speaker 1: and was really offended just by the actions that he
Speaker 1: took after he failed to disclose those matters and was
Speaker 1: making that argument, I believe because she wanted to preserve
Speaker 1: the other rulings that Judge outer Kirk had made, including
Speaker 1: divorcing them. And if Judge outer Kirk's rulings were invalidated
Speaker 1: from the get go, well they would still be married
Speaker 1: to each other and all the property division orders everything
Speaker 1: else in the case would also be invalidated. So I
Speaker 1: don't think she wanted that there will be a new
Speaker 1: judge appointed. That judge will be a public judge unless
Speaker 1: Angelina and Brad agree to another privately compensated judge, and
Speaker 1: that will have to go back l a superior court
Speaker 1: for assignment. And delay would benefit Angelina because the status
Speaker 1: quo is the parenting plan that exists right now, which
Speaker 1: presumably is in her favor in terms of the amount
Speaker 1: of time that she's allocated, and so the longer it
Speaker 1: goes on, the longer she has that time. Thanks Chris,
Speaker 1: that's Christopher Melcher of Waltz or Melcher. Progressive groups seeking
Speaker 1: to remake the Supreme Court had hoped to spend this
Speaker 1: summer helping win confirmation of what was expected to be
Speaker 1: the first black woman nominated as a justice instead, Justice
Speaker 1: Stephen Bryer opted not to retire, and advocates who are
Speaker 1: focused on the court's conservative bent have watched their issue
Speaker 1: mostly received from view joining me as Madison Alder Bloomberg
Speaker 1: Law Reporter. What were the progressives focused on before the
Speaker 1: end of the Supreme Court term? So this past term,
Speaker 1: the issue of Briar's retirement has really been front and
Speaker 1: center for progressive organizations like Demand Justice, which is a
Speaker 1: progressive judicial advocacy group, really put this in the front
Speaker 1: of people's minds. They had a billboard bus that was
Speaker 1: circling the Supreme Court calling for Briar to retire and
Speaker 1: that would make room for Biden to appoint the first
Speaker 1: black woman justice, which he said he would do on
Speaker 1: the campaign trail. But when the term came to a close,
Speaker 1: and you know, Briar, in an interview with Sannon said
Speaker 1: he's happy where he is on the Court and he
Speaker 1: hasn't made any decision on retirement. That kind of closed
Speaker 1: the door on this. Pretty personally said rallying cry for
Speaker 1: progressives or pretty strong rallying cry for progressives that Biden
Speaker 1: had an opportunity here to appoint the first black woman justice,
Speaker 1: and now that leaves open the possibility of other areas
Speaker 1: for progressives to try to get the attention of their
Speaker 1: constituencies and and try to keep the focus on the court.
Speaker 1: You know, we should point out that even if Briar
Speaker 1: had retired, it would have just been substituting one liberal
Speaker 1: justice for another. It wouldn't have made any change in
Speaker 1: the conservative majority on the court. Right. Brian Fallon, who
Speaker 1: is the executive director of Demand Justice, told me that
Speaker 1: they never had any illusions about Briar retiring and being
Speaker 1: replaced necessarily making an impact in some of the broader
Speaker 1: structural changes they'd like to see in the judiciary. Right,
Speaker 1: Like you said, it's replacing liberal justice with the liberal justice.
Speaker 1: They're also interested it in seeing the Supreme Court expanded
Speaker 1: and some of these changes coming about. Um, so this
Speaker 1: is something that might have helped with the margins, but
Speaker 1: in their eyes, it wasn't the end of the line.
Speaker 1: Now what's interesting is Demand Justice is working with some
Speaker 1: student groups now. So Fallon told me that the way
Speaker 1: that they're looking at keeping the attention on the court
Speaker 1: is by focusing on the next term, which is already
Speaker 1: shaping up to you know, deal with some pretty hot
Speaker 1: button issues like abortion and gun rights UM and possibly
Speaker 1: affirmative action. And so through those issues, Demand Justice is
Speaker 1: teaming up with student groups like March for Our Lives
Speaker 1: and Sunrise Movement to really highlight some of these issues
Speaker 1: going forward and kind of fire up their base. Are
Speaker 1: they anticipating that the decisions are not going to be
Speaker 1: what liberals would want to see? I think that's the position.
Speaker 1: Advocacy group typically taken these kinds of scenarios and there's
Speaker 1: a hot button issue, and especially given the sixth three
Speaker 1: majority of the majority at the Superhan Court, they are
Speaker 1: always going to advocate for um the fact that they
Speaker 1: could possibly get the result that they're looking for in
Speaker 1: these cases. It doesn't necessarily mean that that's going to happen,
Speaker 1: but you know, if the justices vote, uh maybe in
Speaker 1: line with the political parties that appointed them, that that
Speaker 1: could be the result. One group, She Will Rise. I
Speaker 1: hadn't heard of this group before. Tell me about that group.
Speaker 1: So She Will Rise is an initiative that was first
Speaker 1: started and incubated under Demand Justice, as that was described
Speaker 1: to me, and then it has moved under a new
Speaker 1: organization called Take Creative Control UM and it is squarely
Speaker 1: focused on advocacy surrounding appointing the first black woman justice
Speaker 1: to the Supreme Court. So some of their work has
Speaker 1: been painting a mural in in the Shaw neighborhood of Washington,
Speaker 1: d c UM that depicts black women and the Supreme
Speaker 1: Court kind of envisioning this idea of a black woman justice. UM.
Speaker 1: They also collected, you know, a huge group photo of
Speaker 1: a whole bunch of black girls who were dressed in
Speaker 1: judicial roads to kind of show what the future would
Speaker 1: look like for the Court. And so their advocacy is
Speaker 1: kind of in that. Vein and Kim Tigner, who who
Speaker 1: co founded this organization, told me UM that they're they're
Speaker 1: planning on keeping the focus on that by supporting Biden's
Speaker 1: judicial nominees, many of which has been black women. UM,
Speaker 1: and kind of supporting this pipeline that's building for black
Speaker 1: women judges and creating the foundation for the first black
Speaker 1: woman justice on the Supreme Court. You're also focusing on
Speaker 1: the clerks at the Supreme Court. Do they get demographic
Speaker 1: information about the law clerks that the justices employ. So
Speaker 1: that's not something that the Court typically readily gives out,
Speaker 1: but UM, it's one of the areas. She said it
Speaker 1: was an example of something that her organization is going
Speaker 1: to you know, prompts the Supreme Court on is going
Speaker 1: to ask about demographic information about clerks, because that is,
Speaker 1: as she explained, it, a pipeline in itself to becoming
Speaker 1: a future justice. So Madison Brian Fallon of Demand Justice
Speaker 1: said he expects more people to call on Briar to
Speaker 1: step down next summer, So likely if these calls are
Speaker 1: going to take place again when there is another opportunity
Speaker 1: for prior to retire. Of course, he could retire at
Speaker 1: any point, but it is more likely that he would
Speaker 1: did this at the end of a Supreme Court term
Speaker 1: and when that happens. Uh Balan said he could see
Speaker 1: potentially more people getting on board with a more Democrats
Speaker 1: getting on board with this um because their biggest critics
Speaker 1: during this past session were people who said, give Briar's face,
Speaker 1: give him the benefit of the doubt, maybe he will
Speaker 1: retire and in in falonce you uh, those people now
Speaker 1: might be a little bit more uh willing to call
Speaker 1: on him to retire now that he has already not
Speaker 1: done at once. So they believe that calls will grow
Speaker 1: at the end of next term. After the Cenni interview,
Speaker 1: it seems like, you know, Briar is not even considering
Speaker 1: retirement at this point and loving the role he's in,
Speaker 1: which is remarkably similar to what happened with the late
Speaker 1: Justice Ruth Bader Ginsburg who became the leader of the
Speaker 1: liberal block and held onto it and there's nothing that
Speaker 1: can be done to force him to retire. Right, this
Speaker 1: is ultimately Briar's decision, and as he said that interview
Speaker 1: your he's happy where he is. But since then, um on,
Speaker 1: then again Amy Klobatar during Clobatar, she kind of uh
Speaker 1: said Briar should should potentially think about retiring as soon
Speaker 1: as possible. Um So, you know, it's already something that
Speaker 1: we're seeing Democrats continue to talk about, even if the
Speaker 1: calls don't feel like this is something that could immediately
Speaker 1: take place now Because are liberals disappointed in the commission
Speaker 1: that's been set up by the White House to examine
Speaker 1: issues surrounding the court, Well, there's certainly have been some
Speaker 1: criticisms of this commission. Early on, there were criticisms that, uh,
Speaker 1: they were potentially going to talk about issues and not
Speaker 1: really come to any solutions. The commission is set up
Speaker 1: to to not give recommendations specifically, it's going to do
Speaker 1: an exploration of a lot of the reforms that could
Speaker 1: happen at the Supreme Court, but not necessarily be prescriptive
Speaker 1: to the president. UM. So that was that was something
Speaker 1: that I think some of these groups have taken issue with.
Speaker 1: But more recently, Uh, you know, we've seen now that
Speaker 1: we've we've had witnesses come before the commission and UM,
Speaker 1: they've done more publication meetings. Uh, there have been criticisms
Speaker 1: that it isn't very reflective of the people that the
Speaker 1: Supreme Court decision has impact most and looks a lot
Speaker 1: like an academic conference. UM. A lot of the people
Speaker 1: attended the same law schools. UM. There was actually a
Speaker 1: few moments in some of the recent hearings where someone
Speaker 1: was speaking to their former professor UM or their former student.
Speaker 1: It happened a couple of times with the most recent hearing,
Speaker 1: and advocates say that, you know, this is an issue,
Speaker 1: because this is an urgent issue, the issue of the
Speaker 1: Supreme Court UM and not being representative of the American public,
Speaker 1: and if they want to create a solution, they should
Speaker 1: include people who are most impacted by this decision. It
Speaker 1: seems that packing the court is the only way they're
Speaker 1: really going to change the conservative majority on the Court,
Speaker 1: at least to me. But it's such an uphill battle
Speaker 1: to the progressive groups you've talked to really have any
Speaker 1: hope that that could be accomplished, that they could pack
Speaker 1: the court. So I spoke a little bit to Brian
Speaker 1: Fellon about this again. He's the executive director at Demand Justice,
Speaker 1: and he told me that they know that this isn't
Speaker 1: something immediate. Right the sixty vote threshold is for legislation
Speaker 1: is still in place in the Senate, and it doesn't
Speaker 1: look like that's going anywhere for the time being. So
Speaker 1: Democrats can't just approve an expansion of the Supreme Court
Speaker 1: on their own. They would likely need Republican support and
Speaker 1: that is not going to happen. So they know that
Speaker 1: this is something that that they aren't going to achieve
Speaker 1: in the short term, but he sees that as as
Speaker 1: a long term goal. You know, may be similar to
Speaker 1: the way that the calls to get rid of the
Speaker 1: legiblative filibuster have been uh increasing over over the years,
Speaker 1: Maybe support among Democrats for court reform and especially for
Speaker 1: Supreme Court expansion would grow over time. You know, you
Speaker 1: always hear about Demand Justice, but there's another advocacy group,
Speaker 1: Alliance for Justice, that's been around a lot longer, and
Speaker 1: the founder is going to leave after forty two years.
Speaker 1: So Nan Aaron, who is the founder of the Alliance
Speaker 1: for Justice, is stepping down. She announced this in January.
Speaker 1: It's going to be effective in September, and um she's
Speaker 1: going to be replaced with Rakim Brookes who is an
Speaker 1: a c l U strategist and he's going to be
Speaker 1: take being over over that role and over the organization,
Speaker 1: which is a really key organization for progressives when it
Speaker 1: comes to UH judiciary issues, including judicial nominations, and Nan
Speaker 1: Aaron has definitely been a prominent figure in the judicial
Speaker 1: nomination space for for liberals. So you have Demand Justice,
Speaker 1: Alliance for Justice. What other liberal or progressive judicial advocacy
Speaker 1: groups are they're out there. On the court reform side,
Speaker 1: there is take Back the Court that is an organization
Speaker 1: that is also pushing for Supreme Court reform and UM
Speaker 1: specifically pushing for you know, basically anything that would expand
Speaker 1: or great term limits, that sort of thing. And then
Speaker 1: you also have People's Parody Project which is mostly a
Speaker 1: student led and young lawyer led group. Um, they're fairly new.
Speaker 1: They have been pretty vocal in the last few months
Speaker 1: on the briar fronts and also on judicial nominations, pushing
Speaker 1: for more diversity in those nominations. So I think those
Speaker 1: are kind of the fours that come to mind for
Speaker 1: me at least, Demand Justice, Alliance for Justice, Take Back
Speaker 1: to the Court, and People's Parity projects. Thanks for being
Speaker 1: on the show, Madison. That's Madison Alder, Bloomberg Law reporter.
Speaker 1: Coming up next on The Bloomberg Law Show, the Justice
Speaker 1: Department is refusing to defend Republican Representative Moe Brooks in
Speaker 1: a lawsuit over the Capitol Riot. I'm June Grosso and
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