Speaker 1: This is Bloomberg Law with June Brusso from Bloombird Radio.
Speaker 1: As each day brings more death and destruction to Ukraine,
Speaker 1: as the attacks become more harrowing and more innocent people
Speaker 1: are killed, world leaders like President Joe Biden have characterized
Speaker 1: the actions of Russian President Vladimir Putin as criminal. Putin
Speaker 1: is inflicting appalling, appalling devastation and horror on Ukraine, bombing
Speaker 1: apartment buildings, maternity wards, hospitals. But Biden did not use
Speaker 1: the words war criminal to describe Putin until lass Wednesday,
Speaker 1: talking to reporters after a White House Events work. At first,
Speaker 1: the White House tried to walk back those words, but
Speaker 1: then Secretary of State Anthony B. Lincoln doubled down. Yesterday,
Speaker 1: President Biden said that, in his opinion, war cry have
Speaker 1: been committed in Ukraine. Personally, I agree, joining me as
Speaker 1: Katon McIntosh executive director of the Promise Institute for Human
Speaker 1: Rights at u c l A law school. She's held
Speaker 1: many roles in international criminal tribunals. The term war crimes
Speaker 1: is often used colloquially, what does it mean legally? Speaking?
Speaker 1: So legally, a war crime is a serious violation of
Speaker 1: the laws of war, So a serious violation of the
Speaker 1: rules that are set out in the Geneva Conventions, for example,
Speaker 1: about how war should be fought, and not every violation
Speaker 1: of those rules is a war crime. Had to be
Speaker 1: a serious violation. War criminal is a loaded label. When
Speaker 1: President Biden first said it, there was immediate backtracking by
Speaker 1: the White House. It seems like now they're coming around
Speaker 1: to that label for Vladimir Putin. How many people have
Speaker 1: actually been convicted of being a war criminal? Well, hundreds,
Speaker 1: hundreds have been convicted of being a war criminal. I mean,
Speaker 1: as you can imagine, the rules of war are violated
Speaker 1: during our conflict, and as I said, when that's really serious,
Speaker 1: when we're talking about things like direct targeting a civilians,
Speaker 1: that is a war crime. And they have happily been
Speaker 1: quite a few prosecutions specifically around some recent conflicts in
Speaker 1: the nineties, for example, so apart from the prosecutions after
Speaker 1: World War Two, the Nuremberg and Tokyo tribunals, which was
Speaker 1: really when we saw the first major wave of prosecutions
Speaker 1: for war crimes. It was in the nineteen nineties with
Speaker 1: the tribunals that were set up to deal with the
Speaker 1: war in the former Yugoslavia, and with the war and
Speaker 1: genocide in Rwanda that started to prosecute these international crimes,
Speaker 1: and so since then we've actually seen hundreds of people
Speaker 1: be prosecuted for these What has to be proven to
Speaker 1: prosecute someone like Vladimir Putin? Do you have to show
Speaker 1: that his actions were intentional? What has to be shown
Speaker 1: you do? And I think that is the reason for
Speaker 1: the slight hesitancy in declaring that he is a war
Speaker 1: criminal before any proper investigation has taken place, and just
Speaker 1: based on reports of what we've seen occurring actually on
Speaker 1: the ground. Because intentionally directing military attacks against the civilian
Speaker 1: population or civilian targets like hospitals or the art school
Speaker 1: that we saw recently or a museum, that would be
Speaker 1: a war crime. But the fact that these targets are
Speaker 1: hit during a conflict does not necessarily mean they were
Speaker 1: intentionally targeted. So it would be possible, I mean, frankly,
Speaker 1: this seems unlikely in the kind of situation we've seen
Speaker 1: reported in Ukraine. It would be possible for a legitimate
Speaker 1: target to be targeted and for there to be incidental
Speaker 1: or what we often hear of referred to as collateral damage,
Speaker 1: which actually wouldn't be a war crime as long as
Speaker 1: it wasn't completely out of whacking, completely disproportionate. So I
Speaker 1: think that's the hesitancy. So in order to find Vladimi,
Speaker 1: Cruity or anybody else guilty of a war crime, it
Speaker 1: would have to be established that they intended, directed, or
Speaker 1: gave orders to the effect that something like civilians should
Speaker 1: be targeted, hospitals should be targeted, and Mariople actually is
Speaker 1: another example, because besieging a city or trying to inflict
Speaker 1: starvation on a civilian population is another war crime. So
Speaker 1: where that can be tied back to specific orders and direction,
Speaker 1: then a war crime is proved. That sounds like you
Speaker 1: would need someone on the inside who Putin is giving
Speaker 1: orders to, or who overheard what Putin was saying. It
Speaker 1: could come down to that. I mean, I've worked at
Speaker 1: the Yugoslavia War Crimes cribuneral and also the Rwanda tribunals,
Speaker 1: so I've seen these cases, and in some cases it
Speaker 1: did rely on intersepts or inside a witnesses to establish
Speaker 1: a chain of command, but the threshold is not necessarily
Speaker 1: that high. There's also legally a possibility that intention can
Speaker 1: be inferred, right, if it's so obvious from the situation
Speaker 1: that there's no way anything else, any other intention could
Speaker 1: be inferred than that that instruction had been given. So,
Speaker 1: for example, if there is an attack on a hospital
Speaker 1: and there's nothing in the vicinity that could be in
Speaker 1: a legitimate military objective, there's no allegation that the hospital
Speaker 1: was being used as some kind of military headquarters, then
Speaker 1: we can infer that there was a deliberate intention to
Speaker 1: attack that hospital. The Chief Prosecutor at the International Criminal
Speaker 1: Court said on February that, based on a preliminary assessment
Speaker 1: by his office conducted mostly in there's a reasonable basis
Speaker 1: to believe that both alleged war crimes and crimes against
Speaker 1: humanity have been committed in Ukraine. What is he referring to,
Speaker 1: because the recent invasion just started, you know, a month ago, right, Well,
Speaker 1: the officer, the prosecutor has actually been carrying out what
Speaker 1: they call a preliminary examination, so the examination they carry
Speaker 1: out before opening a proper investigation, since two thousand and fourteen.
Speaker 1: And people have been upsets that that has taken so long,
Speaker 1: and that it took the prosecutor until just we to
Speaker 1: need to come out and make some kind of statement
Speaker 1: about that. So here we're talking about the earlier invasion
Speaker 1: of Crimea and the acts in Ukraine in two thousand
Speaker 1: and fourteen. So when the prosecutor talks about possible war
Speaker 1: crimes and crimes against humanity, he's talking about what has
Speaker 1: happened back then and since then. He's actually not talking
Speaker 1: about what's happening now. But once he is seized of
Speaker 1: his situations there, once an investigation is open, he is
Speaker 1: free to to investigate anything with going on in that situation,
Speaker 1: So that includes current events. Takes years for these investigations.
Speaker 1: Is it because it's so difficult or because different countries
Speaker 1: are involved. That's a very good question. I mean we
Speaker 1: alluded earlier to the kind of evidence that you need
Speaker 1: to go up the chain of command. The International Criminal
Speaker 1: Court in particular is charged with investigating and prosecuting those
Speaker 1: most responsible, so they will be looking to people at
Speaker 1: the top of the chain of command, like putting himself
Speaker 1: in his close circle, perhaps generals and so on. In
Speaker 1: the Russian millet tree, it's a lot easier to prove
Speaker 1: a war crime by the person that actually launched the missile, right,
Speaker 1: But building that chain of command up to the top
Speaker 1: can be complex, you know, it can need to rely
Speaker 1: on things like insider witnesses, intersects, and so on. So
Speaker 1: that can be one reason why it takes time. Quite frankly,
Speaker 1: another reason why it's taking so long at the International
Speaker 1: Criminal Court, and I think ten years to decide on
Speaker 1: whether or not it looks like crimes were committed in
Speaker 1: two thousand fourteen, is, by anybody's reckoning, a very long time.
Speaker 1: Is quite simply resources. So the International Criminal Court is
Speaker 1: examining situations all over the world. It does not have
Speaker 1: extensive resources. In fact, I heard somebody who's aware of
Speaker 1: the team that's prosecuting and investigating the two thousand and
Speaker 1: fourteen events in Ukraine say that the team had one
Speaker 1: Ukrainian speaker and one Russian speaker. So, you know, in
Speaker 1: order for the officer, the prosecutor who deals with crimes
Speaker 1: all over the world, to really accelerate investigations in this situation,
Speaker 1: which I think we all think would be a good thing,
Speaker 1: they're going to need a massive injection of resources. They
Speaker 1: need going to need to bring people on board. They
Speaker 1: need to experience people, any people speak the language. They
Speaker 1: need to be able to dee divert resources from their
Speaker 1: other investigations to make this happen in a reasonable time frame.
Speaker 1: Where would they get that money? I mean, is there
Speaker 1: a process for them to get more funding. The usual
Speaker 1: place they go to to get their money are the
Speaker 1: states who have signed up to the court. So there
Speaker 1: are hundred and twenty three nations around the world that
Speaker 1: are part of the International Criminal Court system, so have
Speaker 1: ratified the treaty, and they are also then the supervisory
Speaker 1: body of the court, and they also provide funding for
Speaker 1: the court. Now, other states can also contribute, so the US,
Speaker 1: for example, could certainly contribute resources in order to accelerate
Speaker 1: that prosecution, even though the US has not itself ratified
Speaker 1: the statute and is in part of the court system.
Speaker 1: The US Deputy Secretary of State Wendy Sherman said that
Speaker 1: the United States is helping to pull evidence together presented
Speaker 1: to international justice parties and then have a legal threshold
Speaker 1: that has met. What is the United States or what
Speaker 1: do individual countries have to do with this process or
Speaker 1: is it just you know, the prosecutors from the sec. Yeah, well,
Speaker 1: this is really an important way that states can assist
Speaker 1: other than transferring funds directly and enabling the sec to
Speaker 1: boost their their team because states, of course have I
Speaker 1: referred earlier to interstet materials. For intertet material has been
Speaker 1: very valuable for these international investigations and prosecutions, and that's
Speaker 1: the kind of material that states have. States are the
Speaker 1: bodies that are in a position to intercept communications and
Speaker 1: to understand what's going on, and if they are willing
Speaker 1: to share that information with the prosecutor's office, that can
Speaker 1: be a massive assistance. And the US has been very
Speaker 1: helpful to international justice actually through providing these kinds of information,
Speaker 1: perhaps as lead material rather than evidence, through supporting in
Speaker 1: its oaring information that the US has in its possession
Speaker 1: in the pursuit of international accountability for atrocity crime. So
Speaker 1: that's absolutely a very helpful thing that the United States
Speaker 1: and other countries around the world could do. Do you
Speaker 1: know why the United States isn't a member of the
Speaker 1: i c c oh Well, that is a long and
Speaker 1: interesting story. So the United States was very supportive of
Speaker 1: the creation of the court, attended the Rome Conference in
Speaker 1: which drew up the statute, which was all the nations
Speaker 1: of the world deciding what this court should have jurisdiction
Speaker 1: over and how it should work. The US was very
Speaker 1: active at a big delegation actually signed the statute, but
Speaker 1: never took it through the process of ratification. In other words,
Speaker 1: never went through Congress to actually turn it into finding
Speaker 1: law in the US. And then George W. Bush withdrew
Speaker 1: from the statute in so far as that makes any
Speaker 1: sense when it hadn't actually adopted, so kind of unsigned it.
Speaker 1: And relations under Obama improved. I don't think there was
Speaker 1: an indication that the US is going to sign up,
Speaker 1: but there was certainly support for investigations. And then relations
Speaker 1: reached an all time low under the last presidency. I
Speaker 1: don't know if you remember, but President Trump actually issued
Speaker 1: an executive order against the prosecutor of the International Criminal
Speaker 1: Court because of the investigation in Afghanistan, which had implications
Speaker 1: the US military. So, um, you know, it's a good question.
Speaker 1: I think the hesitation, there's a hesitation over having any
Speaker 1: other body have sovereignty over or have jurisdiction and be
Speaker 1: able to judge the acts of of US personnel. Although
Speaker 1: you know, I would say to that argument, whenever anybody
Speaker 1: of any nationality commits a crime on foreign territory, that
Speaker 1: territory has jurisdiction over those crimes, so it's not a
Speaker 1: massive step to transfer it to the International Criminal Court.
Speaker 1: I mean, let's see what position the current administration takes.
Speaker 1: I certainly think from what we've seen President Biden's day
Speaker 1: recently um that there is a much more supportive attitude
Speaker 1: to the court, and whether that leads to the US
Speaker 1: actually joining up, which I think would be a wonderful
Speaker 1: message to send about no impunity for international crimes remains
Speaker 1: to be seen. The i Sec doesn't conduct trials in abstentia,
Speaker 1: and they even get putin. Putin would have to be
Speaker 1: handed over. How would it work. Yeah, he'd have to
Speaker 1: be handed over. So that's not looking very likely at
Speaker 1: the moment, right. I Mean, what we've seen with heads
Speaker 1: of state and international prosecutions is it tends to be
Speaker 1: once they've been ousted from power, that they might be
Speaker 1: handed over by their own stage who you may want
Speaker 1: to move on and may disagree with the way they've
Speaker 1: behaved or the kind of situation that then being accused
Speaker 1: of these international crimes, the climate or the reputational damage
Speaker 1: that that's done to the nation. So we saw Slava
Speaker 1: down Molotovich from Yugoslavia, for example, from Serbia being handed
Speaker 1: over to the international criminal or tribunal after he lost power,
Speaker 1: as Serbi was trying to move forward and join the
Speaker 1: European Union and leave its war trodden paths behind it.
Speaker 1: So it's possible there could be a trajectory like that
Speaker 1: for Vladimir Putin. I mean. The other possibility is that
Speaker 1: any state would be able to arrest Vladimir Putin on
Speaker 1: the basis of charges against him for international crimes, so
Speaker 1: we could see his ability to travel around the world
Speaker 1: being somewhat limited. There's an analogy there with I don't
Speaker 1: know if you remember the situation with President Al Bashir
Speaker 1: of Sudan, former president. He was also indicted in connection
Speaker 1: with atrocities in Darfur while he was in power, and
Speaker 1: he did travel outside Sudan, but very carefully, and only
Speaker 1: two countries that he had previously screened and checked were
Speaker 1: not going to arrest him before he got there. So
Speaker 1: that could be a kind of interim effect that we
Speaker 1: see of any possible charges against Vladimir Putin. Let me
Speaker 1: posit this and you tell me if you agree that
Speaker 1: it seems highly unlikely that lad Amir Putin at this point,
Speaker 1: or even after the war is over, will be tried
Speaker 1: for war crimes. I think it's unlikely as long as
Speaker 1: he stays in power in Russia. However, if he is
Speaker 1: no longer in power, or when he's no longer in power,
Speaker 1: I think it could become a real possibility. I want
Speaker 1: to switch to a different topic for a moment. Does
Speaker 1: the United States have any obligation to take in refugees
Speaker 1: Ukrainian refugees specifically, Well, there is a general obligation, and
Speaker 1: this is under a combination of laws. So under refugee law,
Speaker 1: under human rights law, there is a general obligation not
Speaker 1: to send somebody back to a situation in which they
Speaker 1: fear for their life. Now, what does that mean about
Speaker 1: people who are not yet here is an unclear point
Speaker 1: of law to be frank So many people, including the
Speaker 1: UN High Commissioner for Refugees, would say, well, that provision
Speaker 1: is meaningless if you don't let people in in the
Speaker 1: first place, because that's effectively sending them back if they
Speaker 1: have no if they can't escape the country. However, others
Speaker 1: are kind of more hardline might say, well, if they're
Speaker 1: not on our territory, they're not our problem. So legally,
Speaker 1: you know, there's some dispute. What's absolutely clear is people
Speaker 1: cannot be sent back to a situation where they are
Speaker 1: fearing for their life. So whether that means that the
Speaker 1: US is obliged to take them, as I said, legally
Speaker 1: is kind of a point of contention. So I guess
Speaker 1: that that's why Ukrainian refugees are showing up at the
Speaker 1: southern border rather than trying to get in. Absolutely. Yeah,
Speaker 1: I mean it would be very important for the refugees
Speaker 1: to just try and land on US soils, and then
Speaker 1: at that point the US really is under an obligation
Speaker 1: not to send them back. Then the US is not
Speaker 1: under an obligation to grant them permanent status, but it
Speaker 1: would be under an obligation on humanitarian grounds legally to
Speaker 1: make sure that they are not sent back to Ukraine.
Speaker 1: Thanks for being on the show, Kate. That's keep McIntosh,
Speaker 1: the executive director of the Promise Institute at u c L.
Speaker 1: A last score the historic nomination of Judge Katangi Brown Jackson.
Speaker 1: If confirmed, she'll be the first black woman to sit
Speaker 1: on our country's highest court. At the end of day
Speaker 1: one of her confirmation hearings, she made a promise to
Speaker 1: be a fair and neutral arbiter of justice. I decide
Speaker 1: cases from a neutral posture. I evaluate the facts, and
Speaker 1: I interpret and apply the law to the facts of
Speaker 1: the case before me, without fear or favor, consistent with
Speaker 1: my judicial oath. My guest is John Michael's, a professor
Speaker 1: at u c l A Law School. During the opening statements,
Speaker 1: a lot of the Republican senators referred back to the
Speaker 1: Kavanaugh hearings, but not to the latest set of hearings,
Speaker 1: which was the Amy Coney Barrett hearings. Do you think
Speaker 1: that there's some leftover hostility from Kavanaugh that might bleed
Speaker 1: further into these hearings. Well, it's not clear it's hostility
Speaker 1: as much as it's an opportunity to relitigate past grievances.
Speaker 1: And I say that because I'm not sure how sincere
Speaker 1: these these efforts are. There's certainly um powerful and destructive,
Speaker 1: but I'm not sure how how credible or sincere they are.
Speaker 1: There is a benefit for going back, as it were,
Speaker 1: and and muddying the playing field as much as possible,
Speaker 1: and frankly, it needs to be done in this context,
Speaker 1: if only because Jackson's record is practically spotless. So there
Speaker 1: has to be some kind of invitation for chaos in
Speaker 1: order to create the obstruction or or confusion, or let's say,
Speaker 1: to raise questions about a candidacy that is otherwise a
Speaker 1: real no brainer. At what point did confirmation hearings turn
Speaker 1: into such a part as in totally partisan affair where
Speaker 1: you have some senators who voted for her to become
Speaker 1: a judge on the d C Circuit now saying they
Speaker 1: may not vote for her to be on the Supreme Court. Yeah,
Speaker 1: so there's a like everything else in this kind of
Speaker 1: political moment, there's a bit of a partisan debate about
Speaker 1: when this all started. A lot of Republicans will focus
Speaker 1: on the Robert Board hearing, but a lot of other
Speaker 1: people will say, let's take a step back and realize
Speaker 1: that the first occasion for really uh subjecting the Supreme
Speaker 1: Court nominate nominees to the type of aggressive scrutiny really
Speaker 1: started when the old boys Club started to get shaken up.
Speaker 1: And originally Bill's Boys Club was being shaken up only
Speaker 1: by folks who were white ethnics or more progressive and
Speaker 1: less within the kind of clubby world of Wall Street.
Speaker 1: So we're talking about the kind of New Deal appointments,
Speaker 1: and of course even John Marshall Harlan the second, who
Speaker 1: was of the kind of elite New York are was
Speaker 1: scrutinized aggressively because the Conservatives were worried about he'd come
Speaker 1: down on segregation issues and desegregation issues. So if one
Speaker 1: could focus on the Wark hearings as this kind of
Speaker 1: cultural touchstone, but there were events that led up to
Speaker 1: it that defined largely, I guess, a modern era of
Speaker 1: greater kind of care and scrutiny, as this Supreme Court
Speaker 1: is taking a larger and larger role in the regulation
Speaker 1: of our most important institutions and life choices. So Senator
Speaker 1: Lindsey Graham was complaining that Biden didn't choose Judge Michelle
Speaker 1: Chiles and said he was going to investigate with Judge
Speaker 1: Jackson the dark money behind her confirmation process. Now that
Speaker 1: seems totally inappropriate, and I'm sure she's going to say
Speaker 1: what does she know about it? Although in a nicer
Speaker 1: way than Matt I think that would be the most
Speaker 1: candid answer um. But of course, still it still allows
Speaker 1: Lindsey Graham to leave out there unaddressed the question about
Speaker 1: whether that's actually at all a credible claim that has
Speaker 1: any validity to it. Just because Judge Jackson can't confirm
Speaker 1: or deny it doesn't mean it's actually what's been going
Speaker 1: on in a case like this. So Linday Graham is
Speaker 1: pulling out his all lawyer Lee trick in doing so
Speaker 1: and and and doing so in a form where it
Speaker 1: can be credibly rebutted unless the Democratic senator is going
Speaker 1: to use his or her time to do so. And
Speaker 1: that's what it ends up being often, isn't it. It
Speaker 1: seems like it's more about the questions than it is
Speaker 1: about the answers. Yeah, I think that's fair. I think
Speaker 1: it's fair, and it's um. It also then further raises
Speaker 1: the question about how how probitive these hearings ever are,
Speaker 1: because the senators are either talking to the cameras, they're
Speaker 1: talking to their Twitter followers, or they're trying to kind
Speaker 1: of reframe the questions or debates in ways that are
Speaker 1: advancing various parts of interest, and unfortunately, in many cases
Speaker 1: we don't actually learn that much more about the nominee,
Speaker 1: and the nominee has to sit there often stone face
Speaker 1: and just watch the partisan circus kind of march past
Speaker 1: them as it were today, Senator Ted Cruz said he
Speaker 1: was going to ask her about free speech, religious liberty,
Speaker 1: gun rights, abortion, and crime. Does he expect an answer
Speaker 1: to any of those questions, because most nominees have not
Speaker 1: answered those questions except to say I'll follow precedent. I
Speaker 1: wouldn't expect to Judge Jackson to to weigh in on
Speaker 1: any of those issues. It seems unhelpful in the moment.
Speaker 1: It could be used down the road where she could
Speaker 1: be confirmed, to suggest that she's maybe prejudged the case.
Speaker 1: So there are political reasons, and then there are professional
Speaker 1: prudential reasons for treading really carefully there. You know, in
Speaker 1: a different world, under different circumstances, we could actually learn
Speaker 1: a lot if this were truly uh an inquiry to
Speaker 1: find out and learn a little bit more about particular candidate.
Speaker 1: It's less important in this particular moment, not just because
Speaker 1: what then Judge gors Hag did or then Judge Ruth
Speaker 1: Ginsburg did, which obviously gives Judge Jackson cover to do
Speaker 1: the same things, but also because you know, let's remember
Speaker 1: that she's one of the more experienced nominees that we've had.
Speaker 1: She's been a district court judge for many years and
Speaker 1: then more recently an appellate level judge. She served on
Speaker 1: the United States Sencing Commission. I mean, she has a
Speaker 1: long and well understood track record, So it's not as
Speaker 1: if she's come out of nowhere and we need to
Speaker 1: learn about this candidate who no one's ever encountered before.
Speaker 1: The Republicans seemed to be ready to attack her as
Speaker 1: being soft on crime. We heard this from Mitch McConnell
Speaker 1: last week, and you know we're hearing it again in
Speaker 1: the Republicans opening statements. There are some skirls attacks that
Speaker 1: have been raised against her that framed her as being
Speaker 1: sympathy attic or enabling at ophelia, or being soft on terrorism.
Speaker 1: Those are claims that are incredibly biting when they turn
Speaker 1: into sound bite, but have very little context or against
Speaker 1: substantiation behind them. So I find it deeply troubling the
Speaker 1: way in which it's been kind of martial to weaponized
Speaker 1: in this fashion. I will say this that the fact
Speaker 1: that Judge Jackson served as a federal public defenders should
Speaker 1: be considered as a real virtue for a court that
Speaker 1: hasn't had someone who has that professional experience, that life
Speaker 1: experience in quite a long time, in decades in fact.
Speaker 1: So the idea that the court should have a breath
Speaker 1: of legal and professional experience that informs their work strikes
Speaker 1: me as an unalloyed good um and the notion of
Speaker 1: something being soft or hard when on crime without context
Speaker 1: is really just again an attempt to undermine her her
Speaker 1: credibility and suggest that she's somehow not a responsible member
Speaker 1: of the legal community, which again has no substantiation. Last week,
Speaker 1: Senator Josh Holly started tweeting about Jackson consistently sentencing child
Speaker 1: porn possession and distribution defendants to prison terms well below
Speaker 1: federal sentencing guidelines. And it seems true that she did
Speaker 1: sentence several to the minimum and some to the below
Speaker 1: the minimum. But put that in context. Yeah, so again
Speaker 1: this is trying to tap into q and on conspiracy
Speaker 1: theories about the Democratic Party embracing or enabling at Ophelia.
Speaker 1: It's taken wolfully out of context. Supreme Court justices of
Speaker 1: the right have also challenged and struck down laws that
Speaker 1: were intended to be tough on sex offenders, because sometimes
Speaker 1: one has to think about the law outside of the
Speaker 1: commission of a particular crime, and Conserve of Justices have
Speaker 1: done that in the not so distant path, and I
Speaker 1: don't recall, though I could be wrong Josh Howley taking
Speaker 1: to the public airwaves to decry when his fellow travelers
Speaker 1: have made similar moves. So they are bound to ask
Speaker 1: her about her decision on Don McGann. How defensible is
Speaker 1: her opinion in that case. Sometimes it might be hard
Speaker 1: for a judge to explain one ruling in this type
Speaker 1: of format, not because there in any way doubtful about
Speaker 1: how they came out in the matter, but because it
Speaker 1: will open them up to criticism that they're speculating or
Speaker 1: going beyond the record. My understanding of how best to
Speaker 1: proceed under those circumstances would simply say that, you know,
Speaker 1: I refer you back to my opinion, which is comprehensive
Speaker 1: and explained the basis for my decision and the reasoning
Speaker 1: underlying it. And I think one of the benefits we
Speaker 1: have about a judiciary that puts basically almost all of
Speaker 1: its work in writing an individuals sign their names to
Speaker 1: it is that it becomes the kind of a complete
Speaker 1: record of the matter. And so to get pulled into
Speaker 1: a conversation about presidential power at large or about questions
Speaker 1: about corruption or transparency strikes me as I'll advise, is
Speaker 1: it likely that you'd answer the question that Republicans intend
Speaker 1: to ask her about whether she favors packing the court? No,
Speaker 1: there's no basis for doing that. And if the you
Speaker 1: know that that's a question for Congress, of course, and
Speaker 1: I mean in some ways she might it might just
Speaker 1: be an opportunity for her to say that's a matter
Speaker 1: for you all to decide. She's been before this committee
Speaker 1: three times before, and she's described as extremely nerve racking,
Speaker 1: and that she took up knitting to sort of help
Speaker 1: her with her nerves. How do they prep for these?
Speaker 1: Is it like prepping for oral arguments, where all kinds
Speaker 1: of questions are thrown at you and you figure out
Speaker 1: which answers work best. Is a pretty well orchestrated operation
Speaker 1: where they are kind of sharpened through the system by
Speaker 1: members of the Lighthouse, by presumably some friendly voices on
Speaker 1: the Senate Judiciary Committee side as well. It's it's a
Speaker 1: very labor intensive process. I will say that one thing
Speaker 1: that can't be taught, and that, at least my sense
Speaker 1: of Judge Jackson how she's presenting it today, at least
Speaker 1: is that you can't teach someone to have a judicial temperament.
Speaker 1: You either have it or you don't. And at least
Speaker 1: at the early stages, Judge Jackson is evidence in a
Speaker 1: judicial temperament. And by that I mean a cool and
Speaker 1: colm demeanor, a sense of not easily ruffled. And we
Speaker 1: haven't seen that uniformly from nominees before the Seven Judiciary Committee.
Speaker 1: And again we can refer back to Justice Kavanaugh. Then
Speaker 1: Judge Kavanaugh losing to school and raising his voice to
Speaker 1: senators and notwithstanding all that he was obviously confirmed. During
Speaker 1: Judge Jackson's hearings for the d C Circuit, Republican Senator
Speaker 1: John corn And asked her what role race plays and
Speaker 1: the kind of judge you've been, Is that an appropriate question?
Speaker 1: Do we think we'll hear that at these hearings. I'm
Speaker 1: sure we'll hear versions of that. You know, whether it's
Speaker 1: a fair question, I mean, you know, in some ways
Speaker 1: it's an opportunity. Um. The real question is would he
Speaker 1: ask those questions of white candidates? Would he ask what
Speaker 1: role does gender play with the asset of a mail candidate?
Speaker 1: If we had a candidate that identified as l G
Speaker 1: B t Q would he ask a similar question about
Speaker 1: either gender identity or sexual orientation when it comes to
Speaker 1: a straight mail um. So one has to be on
Speaker 1: guard that there's additional burdens that are being imposed on
Speaker 1: our public officials of color or public officials who are
Speaker 1: not of the distinct, you know, ruling majority, and whether
Speaker 1: it's fair incredible to ask them those questions. Are you
Speaker 1: fairly confident that, unless something unexpected happens, she'll be confirmed?
Speaker 1: I would like to say I'm pretty confident, because I'm
Speaker 1: enthusiastic about her candidacy, But I think I've measured in
Speaker 1: my optimism only because we have a larm process to go,
Speaker 1: and it seems like there is not a lot of
Speaker 1: bipartisan support, that there's a lot of extra votes lying
Speaker 1: around for Judge Jackson to pick up, and this may
Speaker 1: turn into a vote where the vice president has to
Speaker 1: break the tie, and so it's hard to tell at
Speaker 1: this point. Republicans don't seem particularly enthusiastic, notwithstanding that many
Speaker 1: of them have voted to confirm her for other positions
Speaker 1: of incredible influence and trust. Thanks John. That's John Michael's
Speaker 1: of u c l A Law School, and that's it
Speaker 1: for this edition of The Bloomberg Law Show. Remember you
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Speaker 1: Grosso and you're listening to Bloomberg The