WEBVTT - Could Putin Face Prosecution as a War Criminal? 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloombird Radio. 0:00:09.119 --> 0:00:12.520 As each day brings more death and destruction to Ukraine, 0:00:12.840 --> 0:00:16.400 as the attacks become more harrowing and more innocent people 0:00:16.440 --> 0:00:20.640 are killed, world leaders like President Joe Biden have characterized 0:00:20.680 --> 0:00:25.320 the actions of Russian President Vladimir Putin as criminal. Putin 0:00:25.360 --> 0:00:31.160 is inflicting appalling, appalling devastation and horror on Ukraine, bombing 0:00:31.200 --> 0:00:36.240 apartment buildings, maternity wards, hospitals. But Biden did not use 0:00:36.280 --> 0:00:40.440 the words war criminal to describe Putin until lass Wednesday, 0:00:40.760 --> 0:00:48.360 talking to reporters after a White House Events work. At first, 0:00:48.400 --> 0:00:51.559 the White House tried to walk back those words, but 0:00:51.680 --> 0:00:56.320 then Secretary of State Anthony B. Lincoln doubled down. Yesterday, 0:00:56.680 --> 0:01:00.200 President Biden said that, in his opinion, war cry have 0:01:00.280 --> 0:01:05.560 been committed in Ukraine. Personally, I agree, joining me as 0:01:05.640 --> 0:01:09.280 Katon McIntosh executive director of the Promise Institute for Human 0:01:09.400 --> 0:01:12.160 Rights at u c l A law school. She's held 0:01:12.200 --> 0:01:17.320 many roles in international criminal tribunals. The term war crimes 0:01:17.560 --> 0:01:21.759 is often used colloquially, what does it mean legally? Speaking? 0:01:22.760 --> 0:01:26.080 So legally, a war crime is a serious violation of 0:01:26.120 --> 0:01:29.360 the laws of war, So a serious violation of the 0:01:29.440 --> 0:01:32.280 rules that are set out in the Geneva Conventions, for example, 0:01:32.280 --> 0:01:35.560 about how war should be fought, and not every violation 0:01:35.600 --> 0:01:37.280 of those rules is a war crime. Had to be 0:01:37.319 --> 0:01:43.080 a serious violation. War criminal is a loaded label. When 0:01:43.120 --> 0:01:46.880 President Biden first said it, there was immediate backtracking by 0:01:46.880 --> 0:01:49.640 the White House. It seems like now they're coming around 0:01:49.680 --> 0:01:53.760 to that label for Vladimir Putin. How many people have 0:01:53.880 --> 0:01:58.240 actually been convicted of being a war criminal? Well, hundreds, 0:01:58.520 --> 0:02:00.640 hundreds have been convicted of being a war criminal. I mean, 0:02:00.680 --> 0:02:03.600 as you can imagine, the rules of war are violated 0:02:03.680 --> 0:02:06.320 during our conflict, and as I said, when that's really serious, 0:02:06.400 --> 0:02:10.200 when we're talking about things like direct targeting a civilians, 0:02:10.880 --> 0:02:13.920 that is a war crime. And they have happily been 0:02:14.480 --> 0:02:18.400 quite a few prosecutions specifically around some recent conflicts in 0:02:18.440 --> 0:02:23.119 the nineties, for example, so apart from the prosecutions after 0:02:23.160 --> 0:02:26.440 World War Two, the Nuremberg and Tokyo tribunals, which was 0:02:26.480 --> 0:02:29.359 really when we saw the first major wave of prosecutions 0:02:29.360 --> 0:02:32.360 for war crimes. It was in the nineteen nineties with 0:02:32.520 --> 0:02:35.400 the tribunals that were set up to deal with the 0:02:35.440 --> 0:02:38.440 war in the former Yugoslavia, and with the war and 0:02:38.520 --> 0:02:43.240 genocide in Rwanda that started to prosecute these international crimes, 0:02:43.280 --> 0:02:45.440 and so since then we've actually seen hundreds of people 0:02:45.639 --> 0:02:49.360 be prosecuted for these What has to be proven to 0:02:49.639 --> 0:02:53.200 prosecute someone like Vladimir Putin? Do you have to show 0:02:53.240 --> 0:02:56.240 that his actions were intentional? What has to be shown 0:02:56.600 --> 0:02:58.600 you do? And I think that is the reason for 0:02:58.760 --> 0:03:01.799 the slight hesitancy in declaring that he is a war 0:03:01.840 --> 0:03:05.320 criminal before any proper investigation has taken place, and just 0:03:05.440 --> 0:03:08.360 based on reports of what we've seen occurring actually on 0:03:08.400 --> 0:03:13.720 the ground. Because intentionally directing military attacks against the civilian 0:03:13.760 --> 0:03:17.760 population or civilian targets like hospitals or the art school 0:03:17.800 --> 0:03:20.799 that we saw recently or a museum, that would be 0:03:20.840 --> 0:03:24.040 a war crime. But the fact that these targets are 0:03:24.160 --> 0:03:26.960 hit during a conflict does not necessarily mean they were 0:03:27.000 --> 0:03:31.360 intentionally targeted. So it would be possible, I mean, frankly, 0:03:31.440 --> 0:03:34.760 this seems unlikely in the kind of situation we've seen 0:03:34.800 --> 0:03:38.120 reported in Ukraine. It would be possible for a legitimate 0:03:38.160 --> 0:03:40.920 target to be targeted and for there to be incidental 0:03:41.080 --> 0:03:44.160 or what we often hear of referred to as collateral damage, 0:03:44.280 --> 0:03:46.360 which actually wouldn't be a war crime as long as 0:03:46.360 --> 0:03:49.960 it wasn't completely out of whacking, completely disproportionate. So I 0:03:49.960 --> 0:03:53.120 think that's the hesitancy. So in order to find Vladimi, 0:03:53.160 --> 0:03:55.720 Cruity or anybody else guilty of a war crime, it 0:03:55.760 --> 0:03:59.080 would have to be established that they intended, directed, or 0:03:59.120 --> 0:04:02.680 gave orders to the effect that something like civilians should 0:04:02.680 --> 0:04:06.720 be targeted, hospitals should be targeted, and Mariople actually is 0:04:06.760 --> 0:04:10.720 another example, because besieging a city or trying to inflict 0:04:10.800 --> 0:04:14.120 starvation on a civilian population is another war crime. So 0:04:14.160 --> 0:04:16.839 where that can be tied back to specific orders and direction, 0:04:16.960 --> 0:04:19.800 then a war crime is proved. That sounds like you 0:04:19.800 --> 0:04:24.080 would need someone on the inside who Putin is giving 0:04:24.240 --> 0:04:29.039 orders to, or who overheard what Putin was saying. It 0:04:29.120 --> 0:04:31.680 could come down to that. I mean, I've worked at 0:04:31.760 --> 0:04:36.000 the Yugoslavia War Crimes cribuneral and also the Rwanda tribunals, 0:04:36.000 --> 0:04:38.520 so I've seen these cases, and in some cases it 0:04:38.560 --> 0:04:42.440 did rely on intersepts or inside a witnesses to establish 0:04:42.480 --> 0:04:45.480 a chain of command, but the threshold is not necessarily 0:04:45.520 --> 0:04:49.360 that high. There's also legally a possibility that intention can 0:04:49.400 --> 0:04:52.640 be inferred, right, if it's so obvious from the situation 0:04:52.720 --> 0:04:55.920 that there's no way anything else, any other intention could 0:04:55.920 --> 0:04:58.520 be inferred than that that instruction had been given. So, 0:04:58.600 --> 0:05:02.320 for example, if there is an attack on a hospital 0:05:02.480 --> 0:05:04.360 and there's nothing in the vicinity that could be in 0:05:04.360 --> 0:05:08.040 a legitimate military objective, there's no allegation that the hospital 0:05:08.120 --> 0:05:10.960 was being used as some kind of military headquarters, then 0:05:11.240 --> 0:05:14.080 we can infer that there was a deliberate intention to 0:05:14.120 --> 0:05:19.240 attack that hospital. The Chief Prosecutor at the International Criminal 0:05:19.320 --> 0:05:24.120 Court said on February that, based on a preliminary assessment 0:05:24.120 --> 0:05:28.440 by his office conducted mostly in there's a reasonable basis 0:05:28.440 --> 0:05:31.440 to believe that both alleged war crimes and crimes against 0:05:31.520 --> 0:05:34.960 humanity have been committed in Ukraine. What is he referring to, 0:05:35.839 --> 0:05:41.840 because the recent invasion just started, you know, a month ago, right, Well, 0:05:42.200 --> 0:05:45.359 the officer, the prosecutor has actually been carrying out what 0:05:45.400 --> 0:05:49.159 they call a preliminary examination, so the examination they carry 0:05:49.160 --> 0:05:53.760 out before opening a proper investigation, since two thousand and fourteen. 0:05:54.320 --> 0:05:57.599 And people have been upsets that that has taken so long, 0:05:57.640 --> 0:05:59.880 and that it took the prosecutor until just we to 0:06:00.040 --> 0:06:01.880 need to come out and make some kind of statement 0:06:01.920 --> 0:06:05.600 about that. So here we're talking about the earlier invasion 0:06:05.760 --> 0:06:09.360 of Crimea and the acts in Ukraine in two thousand 0:06:09.360 --> 0:06:13.440 and fourteen. So when the prosecutor talks about possible war 0:06:13.480 --> 0:06:15.840 crimes and crimes against humanity, he's talking about what has 0:06:15.880 --> 0:06:18.839 happened back then and since then. He's actually not talking 0:06:18.839 --> 0:06:22.280 about what's happening now. But once he is seized of 0:06:22.320 --> 0:06:25.440 his situations there, once an investigation is open, he is 0:06:25.480 --> 0:06:29.440 free to to investigate anything with going on in that situation, 0:06:29.480 --> 0:06:33.640 So that includes current events. Takes years for these investigations. 0:06:33.680 --> 0:06:36.800 Is it because it's so difficult or because different countries 0:06:36.800 --> 0:06:40.560 are involved. That's a very good question. I mean we 0:06:40.640 --> 0:06:44.039 alluded earlier to the kind of evidence that you need 0:06:44.080 --> 0:06:46.880 to go up the chain of command. The International Criminal 0:06:46.920 --> 0:06:50.840 Court in particular is charged with investigating and prosecuting those 0:06:50.920 --> 0:06:54.040 most responsible, so they will be looking to people at 0:06:54.080 --> 0:06:57.040 the top of the chain of command, like putting himself 0:06:57.040 --> 0:06:59.280 in his close circle, perhaps generals and so on. In 0:06:59.320 --> 0:07:02.520 the Russian millet tree, it's a lot easier to prove 0:07:03.120 --> 0:07:06.680 a war crime by the person that actually launched the missile, right, 0:07:07.000 --> 0:07:09.320 But building that chain of command up to the top 0:07:09.520 --> 0:07:11.800 can be complex, you know, it can need to rely 0:07:11.960 --> 0:07:15.520 on things like insider witnesses, intersects, and so on. So 0:07:15.640 --> 0:07:18.480 that can be one reason why it takes time. Quite frankly, 0:07:18.800 --> 0:07:21.240 another reason why it's taking so long at the International 0:07:21.240 --> 0:07:24.080 Criminal Court, and I think ten years to decide on 0:07:24.200 --> 0:07:26.440 whether or not it looks like crimes were committed in 0:07:26.440 --> 0:07:31.200 two thousand fourteen, is, by anybody's reckoning, a very long time. 0:07:31.480 --> 0:07:35.240 Is quite simply resources. So the International Criminal Court is 0:07:35.280 --> 0:07:39.520 examining situations all over the world. It does not have 0:07:40.840 --> 0:07:45.960 extensive resources. In fact, I heard somebody who's aware of 0:07:46.000 --> 0:07:49.000 the team that's prosecuting and investigating the two thousand and 0:07:49.080 --> 0:07:52.320 fourteen events in Ukraine say that the team had one 0:07:52.440 --> 0:07:56.400 Ukrainian speaker and one Russian speaker. So, you know, in 0:07:56.480 --> 0:07:58.880 order for the officer, the prosecutor who deals with crimes 0:07:58.920 --> 0:08:02.920 all over the world, to really accelerate investigations in this situation, 0:08:02.920 --> 0:08:04.440 which I think we all think would be a good thing, 0:08:04.840 --> 0:08:06.880 they're going to need a massive injection of resources. They 0:08:06.920 --> 0:08:08.600 need going to need to bring people on board. They 0:08:08.640 --> 0:08:11.320 need to experience people, any people speak the language. They 0:08:11.360 --> 0:08:13.760 need to be able to dee divert resources from their 0:08:13.760 --> 0:08:17.119 other investigations to make this happen in a reasonable time frame. 0:08:17.720 --> 0:08:20.320 Where would they get that money? I mean, is there 0:08:20.320 --> 0:08:23.840 a process for them to get more funding. The usual 0:08:24.280 --> 0:08:26.120 place they go to to get their money are the 0:08:26.240 --> 0:08:28.560 states who have signed up to the court. So there 0:08:28.600 --> 0:08:31.400 are hundred and twenty three nations around the world that 0:08:31.440 --> 0:08:34.040 are part of the International Criminal Court system, so have 0:08:34.440 --> 0:08:38.240 ratified the treaty, and they are also then the supervisory 0:08:38.280 --> 0:08:40.680 body of the court, and they also provide funding for 0:08:40.720 --> 0:08:44.080 the court. Now, other states can also contribute, so the US, 0:08:44.160 --> 0:08:47.720 for example, could certainly contribute resources in order to accelerate 0:08:47.760 --> 0:08:50.880 that prosecution, even though the US has not itself ratified 0:08:50.920 --> 0:08:53.360 the statute and is in part of the court system. 0:08:53.440 --> 0:08:58.000 The US Deputy Secretary of State Wendy Sherman said that 0:08:58.120 --> 0:09:01.920 the United States is helping to pull evidence together presented 0:09:01.960 --> 0:09:05.720 to international justice parties and then have a legal threshold 0:09:05.800 --> 0:09:08.040 that has met. What is the United States or what 0:09:08.080 --> 0:09:11.960 do individual countries have to do with this process or 0:09:12.120 --> 0:09:17.319 is it just you know, the prosecutors from the sec. Yeah, well, 0:09:17.320 --> 0:09:19.640 this is really an important way that states can assist 0:09:19.720 --> 0:09:23.559 other than transferring funds directly and enabling the sec to 0:09:23.840 --> 0:09:27.760 boost their their team because states, of course have I 0:09:27.920 --> 0:09:31.040 referred earlier to interstet materials. For intertet material has been 0:09:31.160 --> 0:09:35.160 very valuable for these international investigations and prosecutions, and that's 0:09:35.160 --> 0:09:37.720 the kind of material that states have. States are the 0:09:37.760 --> 0:09:42.240 bodies that are in a position to intercept communications and 0:09:42.320 --> 0:09:44.720 to understand what's going on, and if they are willing 0:09:44.800 --> 0:09:47.280 to share that information with the prosecutor's office, that can 0:09:47.320 --> 0:09:49.760 be a massive assistance. And the US has been very 0:09:49.760 --> 0:09:55.400 helpful to international justice actually through providing these kinds of information, 0:09:55.640 --> 0:09:59.679 perhaps as lead material rather than evidence, through supporting in 0:09:59.760 --> 0:10:02.640 its oaring information that the US has in its possession 0:10:03.040 --> 0:10:07.120 in the pursuit of international accountability for atrocity crime. So 0:10:07.200 --> 0:10:09.960 that's absolutely a very helpful thing that the United States 0:10:09.960 --> 0:10:12.280 and other countries around the world could do. Do you 0:10:12.320 --> 0:10:16.000 know why the United States isn't a member of the 0:10:16.080 --> 0:10:18.560 i c c oh Well, that is a long and 0:10:18.679 --> 0:10:22.080 interesting story. So the United States was very supportive of 0:10:22.120 --> 0:10:25.360 the creation of the court, attended the Rome Conference in 0:10:26.400 --> 0:10:29.560 which drew up the statute, which was all the nations 0:10:29.559 --> 0:10:32.439 of the world deciding what this court should have jurisdiction 0:10:32.480 --> 0:10:34.400 over and how it should work. The US was very 0:10:34.440 --> 0:10:39.600 active at a big delegation actually signed the statute, but 0:10:39.840 --> 0:10:42.480 never took it through the process of ratification. In other words, 0:10:42.480 --> 0:10:46.120 never went through Congress to actually turn it into finding 0:10:46.200 --> 0:10:50.280 law in the US. And then George W. Bush withdrew 0:10:50.840 --> 0:10:53.480 from the statute in so far as that makes any 0:10:53.520 --> 0:10:56.440 sense when it hadn't actually adopted, so kind of unsigned it. 0:10:56.840 --> 0:11:01.199 And relations under Obama improved. I don't think there was 0:11:01.240 --> 0:11:03.360 an indication that the US is going to sign up, 0:11:03.360 --> 0:11:07.800 but there was certainly support for investigations. And then relations 0:11:07.880 --> 0:11:10.480 reached an all time low under the last presidency. I 0:11:10.520 --> 0:11:13.679 don't know if you remember, but President Trump actually issued 0:11:13.720 --> 0:11:17.400 an executive order against the prosecutor of the International Criminal 0:11:17.440 --> 0:11:21.480 Court because of the investigation in Afghanistan, which had implications 0:11:21.559 --> 0:11:26.160 the US military. So, um, you know, it's a good question. 0:11:26.360 --> 0:11:29.880 I think the hesitation, there's a hesitation over having any 0:11:30.080 --> 0:11:33.840 other body have sovereignty over or have jurisdiction and be 0:11:33.880 --> 0:11:38.400 able to judge the acts of of US personnel. Although 0:11:38.559 --> 0:11:41.559 you know, I would say to that argument, whenever anybody 0:11:41.600 --> 0:11:44.920 of any nationality commits a crime on foreign territory, that 0:11:45.120 --> 0:11:49.079 territory has jurisdiction over those crimes, so it's not a 0:11:49.120 --> 0:11:52.520 massive step to transfer it to the International Criminal Court. 0:11:53.160 --> 0:11:55.920 I mean, let's see what position the current administration takes. 0:11:55.920 --> 0:11:59.000 I certainly think from what we've seen President Biden's day 0:11:59.040 --> 0:12:02.719 recently um that there is a much more supportive attitude 0:12:02.720 --> 0:12:05.080 to the court, and whether that leads to the US 0:12:05.200 --> 0:12:07.840 actually joining up, which I think would be a wonderful 0:12:07.840 --> 0:12:12.280 message to send about no impunity for international crimes remains 0:12:12.320 --> 0:12:16.960 to be seen. The i Sec doesn't conduct trials in abstentia, 0:12:19.000 --> 0:12:21.760 and they even get putin. Putin would have to be 0:12:21.800 --> 0:12:24.680 handed over. How would it work. Yeah, he'd have to 0:12:24.679 --> 0:12:26.720 be handed over. So that's not looking very likely at 0:12:26.720 --> 0:12:29.720 the moment, right. I Mean, what we've seen with heads 0:12:29.720 --> 0:12:33.880 of state and international prosecutions is it tends to be 0:12:34.600 --> 0:12:37.520 once they've been ousted from power, that they might be 0:12:37.600 --> 0:12:41.560 handed over by their own stage who you may want 0:12:41.559 --> 0:12:43.680 to move on and may disagree with the way they've 0:12:43.720 --> 0:12:47.160 behaved or the kind of situation that then being accused 0:12:47.160 --> 0:12:51.360 of these international crimes, the climate or the reputational damage 0:12:51.400 --> 0:12:54.080 that that's done to the nation. So we saw Slava 0:12:54.120 --> 0:12:58.640 down Molotovich from Yugoslavia, for example, from Serbia being handed 0:12:58.679 --> 0:13:02.720 over to the international criminal or tribunal after he lost power, 0:13:03.040 --> 0:13:05.360 as Serbi was trying to move forward and join the 0:13:05.520 --> 0:13:09.120 European Union and leave its war trodden paths behind it. 0:13:09.360 --> 0:13:12.080 So it's possible there could be a trajectory like that 0:13:12.080 --> 0:13:15.760 for Vladimir Putin. I mean. The other possibility is that 0:13:15.880 --> 0:13:19.560 any state would be able to arrest Vladimir Putin on 0:13:19.600 --> 0:13:23.160 the basis of charges against him for international crimes, so 0:13:23.360 --> 0:13:25.920 we could see his ability to travel around the world 0:13:26.040 --> 0:13:29.360 being somewhat limited. There's an analogy there with I don't 0:13:29.360 --> 0:13:31.920 know if you remember the situation with President Al Bashir 0:13:32.040 --> 0:13:35.920 of Sudan, former president. He was also indicted in connection 0:13:35.960 --> 0:13:39.679 with atrocities in Darfur while he was in power, and 0:13:39.880 --> 0:13:43.280 he did travel outside Sudan, but very carefully, and only 0:13:43.320 --> 0:13:46.040 two countries that he had previously screened and checked were 0:13:46.120 --> 0:13:48.240 not going to arrest him before he got there. So 0:13:48.320 --> 0:13:50.199 that could be a kind of interim effect that we 0:13:50.320 --> 0:13:54.000 see of any possible charges against Vladimir Putin. Let me 0:13:54.320 --> 0:13:56.600 posit this and you tell me if you agree that 0:13:56.920 --> 0:14:02.200 it seems highly unlikely that lad Amir Putin at this point, 0:14:03.000 --> 0:14:06.760 or even after the war is over, will be tried 0:14:06.920 --> 0:14:11.640 for war crimes. I think it's unlikely as long as 0:14:11.679 --> 0:14:16.640 he stays in power in Russia. However, if he is 0:14:16.720 --> 0:14:19.280 no longer in power, or when he's no longer in power, 0:14:19.400 --> 0:14:21.960 I think it could become a real possibility. I want 0:14:21.960 --> 0:14:25.000 to switch to a different topic for a moment. Does 0:14:25.040 --> 0:14:29.360 the United States have any obligation to take in refugees 0:14:29.440 --> 0:14:33.800 Ukrainian refugees specifically, Well, there is a general obligation, and 0:14:33.880 --> 0:14:38.000 this is under a combination of laws. So under refugee law, 0:14:38.120 --> 0:14:41.080 under human rights law, there is a general obligation not 0:14:41.320 --> 0:14:44.520 to send somebody back to a situation in which they 0:14:44.560 --> 0:14:46.760 fear for their life. Now, what does that mean about 0:14:46.760 --> 0:14:49.880 people who are not yet here is an unclear point 0:14:49.880 --> 0:14:53.520 of law to be frank So many people, including the 0:14:53.600 --> 0:14:57.240 UN High Commissioner for Refugees, would say, well, that provision 0:14:57.320 --> 0:14:59.040 is meaningless if you don't let people in in the 0:14:59.120 --> 0:15:02.760 first place, because that's effectively sending them back if they 0:15:02.760 --> 0:15:06.160 have no if they can't escape the country. However, others 0:15:06.160 --> 0:15:08.000 are kind of more hardline might say, well, if they're 0:15:08.040 --> 0:15:10.760 not on our territory, they're not our problem. So legally, 0:15:10.960 --> 0:15:13.680 you know, there's some dispute. What's absolutely clear is people 0:15:13.720 --> 0:15:15.960 cannot be sent back to a situation where they are 0:15:16.040 --> 0:15:19.160 fearing for their life. So whether that means that the 0:15:19.280 --> 0:15:22.200 US is obliged to take them, as I said, legally 0:15:22.320 --> 0:15:24.600 is kind of a point of contention. So I guess 0:15:24.640 --> 0:15:28.000 that that's why Ukrainian refugees are showing up at the 0:15:28.040 --> 0:15:31.720 southern border rather than trying to get in. Absolutely. Yeah, 0:15:31.800 --> 0:15:34.240 I mean it would be very important for the refugees 0:15:34.280 --> 0:15:36.840 to just try and land on US soils, and then 0:15:36.960 --> 0:15:40.520 at that point the US really is under an obligation 0:15:40.560 --> 0:15:42.560 not to send them back. Then the US is not 0:15:42.600 --> 0:15:46.200 under an obligation to grant them permanent status, but it 0:15:46.240 --> 0:15:49.840 would be under an obligation on humanitarian grounds legally to 0:15:49.880 --> 0:15:52.000 make sure that they are not sent back to Ukraine. 0:15:52.560 --> 0:15:55.640 Thanks for being on the show, Kate. That's keep McIntosh, 0:15:55.760 --> 0:15:58.800 the executive director of the Promise Institute at u c L. 0:15:58.840 --> 0:16:04.600 A last score the historic nomination of Judge Katangi Brown Jackson. 0:16:05.000 --> 0:16:07.680 If confirmed, she'll be the first black woman to sit 0:16:07.720 --> 0:16:11.000 on our country's highest court. At the end of day 0:16:11.000 --> 0:16:14.000 one of her confirmation hearings, she made a promise to 0:16:14.040 --> 0:16:17.920 be a fair and neutral arbiter of justice. I decide 0:16:18.000 --> 0:16:23.400 cases from a neutral posture. I evaluate the facts, and 0:16:23.480 --> 0:16:26.880 I interpret and apply the law to the facts of 0:16:26.920 --> 0:16:32.440 the case before me, without fear or favor, consistent with 0:16:32.600 --> 0:16:37.080 my judicial oath. My guest is John Michael's, a professor 0:16:37.120 --> 0:16:41.920 at u c l A Law School. During the opening statements, 0:16:42.400 --> 0:16:45.480 a lot of the Republican senators referred back to the 0:16:45.600 --> 0:16:49.680 Kavanaugh hearings, but not to the latest set of hearings, 0:16:49.680 --> 0:16:52.920 which was the Amy Coney Barrett hearings. Do you think 0:16:52.920 --> 0:16:57.560 that there's some leftover hostility from Kavanaugh that might bleed 0:16:57.680 --> 0:17:02.480 further into these hearings. Well, it's not clear it's hostility 0:17:02.600 --> 0:17:09.320 as much as it's an opportunity to relitigate past grievances. 0:17:09.680 --> 0:17:11.640 And I say that because I'm not sure how sincere 0:17:11.720 --> 0:17:15.680 these these efforts are. There's certainly um powerful and destructive, 0:17:15.680 --> 0:17:18.480 but I'm not sure how how credible or sincere they are. 0:17:19.000 --> 0:17:22.680 There is a benefit for going back, as it were, 0:17:22.960 --> 0:17:26.359 and and muddying the playing field as much as possible, 0:17:26.720 --> 0:17:29.600 and frankly, it needs to be done in this context, 0:17:29.840 --> 0:17:34.840 if only because Jackson's record is practically spotless. So there 0:17:34.880 --> 0:17:37.439 has to be some kind of invitation for chaos in 0:17:37.560 --> 0:17:42.440 order to create the obstruction or or confusion, or let's say, 0:17:43.200 --> 0:17:47.040 to raise questions about a candidacy that is otherwise a 0:17:47.040 --> 0:17:51.879 real no brainer. At what point did confirmation hearings turn 0:17:52.000 --> 0:17:56.320 into such a part as in totally partisan affair where 0:17:56.359 --> 0:17:59.800 you have some senators who voted for her to become 0:18:00.240 --> 0:18:03.360 a judge on the d C Circuit now saying they 0:18:03.400 --> 0:18:06.399 may not vote for her to be on the Supreme Court. Yeah, 0:18:06.520 --> 0:18:10.760 so there's a like everything else in this kind of 0:18:10.800 --> 0:18:15.399 political moment, there's a bit of a partisan debate about 0:18:15.400 --> 0:18:18.600 when this all started. A lot of Republicans will focus 0:18:18.600 --> 0:18:21.000 on the Robert Board hearing, but a lot of other 0:18:21.000 --> 0:18:23.320 people will say, let's take a step back and realize 0:18:23.359 --> 0:18:28.520 that the first occasion for really uh subjecting the Supreme 0:18:28.520 --> 0:18:34.640 Court nominate nominees to the type of aggressive scrutiny really 0:18:34.680 --> 0:18:38.359 started when the old boys Club started to get shaken up. 0:18:38.400 --> 0:18:41.040 And originally Bill's Boys Club was being shaken up only 0:18:41.080 --> 0:18:44.679 by folks who were white ethnics or more progressive and 0:18:44.800 --> 0:18:47.639 less within the kind of clubby world of Wall Street. 0:18:47.960 --> 0:18:51.560 So we're talking about the kind of New Deal appointments, 0:18:52.000 --> 0:18:57.240 and of course even John Marshall Harlan the second, who 0:18:57.400 --> 0:19:00.720 was of the kind of elite New York are was 0:19:00.760 --> 0:19:06.040 scrutinized aggressively because the Conservatives were worried about he'd come 0:19:06.080 --> 0:19:10.320 down on segregation issues and desegregation issues. So if one 0:19:10.320 --> 0:19:12.840 could focus on the Wark hearings as this kind of 0:19:12.880 --> 0:19:16.960 cultural touchstone, but there were events that led up to 0:19:17.000 --> 0:19:20.600 it that defined largely, I guess, a modern era of 0:19:20.720 --> 0:19:23.760 greater kind of care and scrutiny, as this Supreme Court 0:19:23.880 --> 0:19:28.520 is taking a larger and larger role in the regulation 0:19:28.760 --> 0:19:34.560 of our most important institutions and life choices. So Senator 0:19:34.600 --> 0:19:40.200 Lindsey Graham was complaining that Biden didn't choose Judge Michelle 0:19:40.280 --> 0:19:43.679 Chiles and said he was going to investigate with Judge 0:19:43.800 --> 0:19:49.119 Jackson the dark money behind her confirmation process. Now that 0:19:49.280 --> 0:19:52.400 seems totally inappropriate, and I'm sure she's going to say 0:19:52.560 --> 0:19:54.639 what does she know about it? Although in a nicer 0:19:54.640 --> 0:19:57.520 way than Matt I think that would be the most 0:19:57.720 --> 0:20:02.040 candid answer um. But of course, still it still allows 0:20:02.200 --> 0:20:06.000 Lindsey Graham to leave out there unaddressed the question about 0:20:06.000 --> 0:20:09.359 whether that's actually at all a credible claim that has 0:20:09.400 --> 0:20:12.959 any validity to it. Just because Judge Jackson can't confirm 0:20:13.080 --> 0:20:16.040 or deny it doesn't mean it's actually what's been going 0:20:16.080 --> 0:20:18.800 on in a case like this. So Linday Graham is 0:20:18.840 --> 0:20:21.880 pulling out his all lawyer Lee trick in doing so 0:20:21.960 --> 0:20:23.679 and and and doing so in a form where it 0:20:23.720 --> 0:20:26.800 can be credibly rebutted unless the Democratic senator is going 0:20:26.800 --> 0:20:29.760 to use his or her time to do so. And 0:20:29.800 --> 0:20:31.879 that's what it ends up being often, isn't it. It 0:20:31.920 --> 0:20:34.439 seems like it's more about the questions than it is 0:20:34.440 --> 0:20:37.400 about the answers. Yeah, I think that's fair. I think 0:20:37.400 --> 0:20:40.439 it's fair, and it's um. It also then further raises 0:20:40.480 --> 0:20:43.480 the question about how how probitive these hearings ever are, 0:20:43.920 --> 0:20:47.480 because the senators are either talking to the cameras, they're 0:20:47.520 --> 0:20:52.120 talking to their Twitter followers, or they're trying to kind 0:20:52.160 --> 0:20:55.840 of reframe the questions or debates in ways that are 0:20:55.920 --> 0:21:01.120 advancing various parts of interest, and unfortunately, in many cases 0:21:01.160 --> 0:21:04.200 we don't actually learn that much more about the nominee, 0:21:04.240 --> 0:21:07.280 and the nominee has to sit there often stone face 0:21:07.440 --> 0:21:11.760 and just watch the partisan circus kind of march past 0:21:11.880 --> 0:21:15.000 them as it were today, Senator Ted Cruz said he 0:21:15.080 --> 0:21:17.960 was going to ask her about free speech, religious liberty, 0:21:18.000 --> 0:21:21.679 gun rights, abortion, and crime. Does he expect an answer 0:21:21.720 --> 0:21:25.800 to any of those questions, because most nominees have not 0:21:25.960 --> 0:21:29.399 answered those questions except to say I'll follow precedent. I 0:21:29.400 --> 0:21:32.320 wouldn't expect to Judge Jackson to to weigh in on 0:21:32.359 --> 0:21:36.000 any of those issues. It seems unhelpful in the moment. 0:21:36.240 --> 0:21:40.160 It could be used down the road where she could 0:21:40.160 --> 0:21:44.040 be confirmed, to suggest that she's maybe prejudged the case. 0:21:44.400 --> 0:21:47.480 So there are political reasons, and then there are professional 0:21:47.560 --> 0:21:52.119 prudential reasons for treading really carefully there. You know, in 0:21:52.160 --> 0:21:55.240 a different world, under different circumstances, we could actually learn 0:21:55.320 --> 0:21:58.760 a lot if this were truly uh an inquiry to 0:21:58.840 --> 0:22:03.440 find out and learn a little bit more about particular candidate. 0:22:03.720 --> 0:22:06.679 It's less important in this particular moment, not just because 0:22:06.960 --> 0:22:09.520 what then Judge gors Hag did or then Judge Ruth 0:22:09.560 --> 0:22:13.399 Ginsburg did, which obviously gives Judge Jackson cover to do 0:22:13.440 --> 0:22:16.320 the same things, but also because you know, let's remember 0:22:16.400 --> 0:22:20.920 that she's one of the more experienced nominees that we've had. 0:22:21.119 --> 0:22:24.439 She's been a district court judge for many years and 0:22:24.440 --> 0:22:27.240 then more recently an appellate level judge. She served on 0:22:27.280 --> 0:22:29.879 the United States Sencing Commission. I mean, she has a 0:22:30.000 --> 0:22:34.080 long and well understood track record, So it's not as 0:22:34.080 --> 0:22:36.280 if she's come out of nowhere and we need to 0:22:36.359 --> 0:22:39.560 learn about this candidate who no one's ever encountered before. 0:22:40.040 --> 0:22:45.159 The Republicans seemed to be ready to attack her as 0:22:45.240 --> 0:22:48.080 being soft on crime. We heard this from Mitch McConnell 0:22:48.600 --> 0:22:50.800 last week, and you know we're hearing it again in 0:22:50.800 --> 0:22:55.199 the Republicans opening statements. There are some skirls attacks that 0:22:55.240 --> 0:22:59.119 have been raised against her that framed her as being 0:22:59.560 --> 0:23:04.760 sympathy attic or enabling at ophelia, or being soft on terrorism. 0:23:05.040 --> 0:23:08.760 Those are claims that are incredibly biting when they turn 0:23:08.840 --> 0:23:13.000 into sound bite, but have very little context or against 0:23:13.000 --> 0:23:16.440 substantiation behind them. So I find it deeply troubling the 0:23:16.480 --> 0:23:19.000 way in which it's been kind of martial to weaponized 0:23:19.040 --> 0:23:22.040 in this fashion. I will say this that the fact 0:23:22.119 --> 0:23:25.840 that Judge Jackson served as a federal public defenders should 0:23:25.840 --> 0:23:28.439 be considered as a real virtue for a court that 0:23:28.520 --> 0:23:32.120 hasn't had someone who has that professional experience, that life 0:23:32.160 --> 0:23:35.480 experience in quite a long time, in decades in fact. 0:23:35.800 --> 0:23:40.240 So the idea that the court should have a breath 0:23:40.400 --> 0:23:46.040 of legal and professional experience that informs their work strikes 0:23:46.119 --> 0:23:49.399 me as an unalloyed good um and the notion of 0:23:49.440 --> 0:23:54.680 something being soft or hard when on crime without context 0:23:54.880 --> 0:23:58.360 is really just again an attempt to undermine her her 0:23:58.400 --> 0:24:02.240