1 00:00:00,080 --> 00:00:04,600 Speaker 1: Walcome to Bloomberg Law. I'm Greg storring our Washington Studios 2 00:00:04,640 --> 00:00:08,000 Speaker 1: along with June Grosso in New York. Donald Trump's Supreme 3 00:00:08,039 --> 00:00:11,360 Speaker 1: Court announcement is just hours away. Bloomberg is reporting the 4 00:00:11,360 --> 00:00:15,400 Speaker 1: President has selected either Neil Gorcich or Thomas Hardeman. Both 5 00:00:15,400 --> 00:00:18,000 Speaker 1: of them are federal Appeals Court judges. Both have, over 6 00:00:18,040 --> 00:00:21,640 Speaker 1: the course of a decade, developed reputations as solid conservatives 7 00:00:21,680 --> 00:00:24,960 Speaker 1: who point to the Constitution's original meaning when they consider 8 00:00:25,040 --> 00:00:28,480 Speaker 1: what rights it protects. But conservatives have heard that before. 9 00:00:28,600 --> 00:00:32,600 Speaker 1: They were badly disappointed when David Suitor, nominated by the 10 00:00:32,600 --> 00:00:35,640 Speaker 1: first President Bush, turned out to be a liberal, and 11 00:00:35,680 --> 00:00:39,960 Speaker 1: the Republican appointed Chief Justice John Roberts, while generally conservative conservative, 12 00:00:40,360 --> 00:00:43,760 Speaker 1: devastated his one time backers when he voted to uphold Obamacare. 13 00:00:44,280 --> 00:00:46,200 Speaker 1: So what do we know about Neil Gorsuch and Tom 14 00:00:46,240 --> 00:00:48,760 Speaker 1: ha Hardeman and how sure we are we about what 15 00:00:48,840 --> 00:00:53,080 Speaker 1: type of justice they will be. Our guests is Ernest Young, 16 00:00:53,240 --> 00:00:55,880 Speaker 1: a professor at Duke University Law School. He is a 17 00:00:55,920 --> 00:01:00,120 Speaker 1: former law clerk to Justice Suitor. Ernie, thanks for for 18 00:01:00,240 --> 00:01:03,520 Speaker 1: joining us. Um. Let me ask you to start with this. So, 19 00:01:04,080 --> 00:01:06,880 Speaker 1: based on what you know of these two men. Um. 20 00:01:06,920 --> 00:01:08,840 Speaker 1: You know, given that that Donald Trump has said he 21 00:01:08,880 --> 00:01:12,039 Speaker 1: wants somebody in the mold of Antonin Scalia the conservative icon, 22 00:01:12,480 --> 00:01:16,040 Speaker 1: how likely do you think he is to get that? Well, 23 00:01:16,040 --> 00:01:18,920 Speaker 1: I think it's hard to say. Um. Both these men 24 00:01:19,000 --> 00:01:23,640 Speaker 1: seem like very distinguished UM conservative jurists. UM. But they're 25 00:01:23,680 --> 00:01:27,560 Speaker 1: far more conventional picks than somebody like anton and Scalia 26 00:01:27,720 --> 00:01:31,039 Speaker 1: would have been. UM. Antonin Scalia was actually a product 27 00:01:31,080 --> 00:01:35,000 Speaker 1: of an effort in the Reagan administration to recruit the 28 00:01:35,560 --> 00:01:38,720 Speaker 1: stars of the academy, in the legal academy on the 29 00:01:38,760 --> 00:01:41,000 Speaker 1: conservative side and put them on the bench. And that 30 00:01:41,200 --> 00:01:43,760 Speaker 1: gave you people like Robert Boroke on the d C 31 00:01:43,959 --> 00:01:47,520 Speaker 1: Circuit and Richard Postner on the Seventh Circuit, Prank Easterbrook 32 00:01:47,560 --> 00:01:50,720 Speaker 1: on the Seventh Circuit, um, and some others. UM. And 33 00:01:50,760 --> 00:01:53,080 Speaker 1: so he was a very out you know, it had 34 00:01:53,120 --> 00:01:56,720 Speaker 1: a kind of academic term of mind and which focused 35 00:01:56,800 --> 00:02:01,320 Speaker 1: him more naturally on these questions of methodology. Um. You know, 36 00:02:02,120 --> 00:02:05,440 Speaker 1: somebody who's coming from a career as a practicing lawyer 37 00:02:05,720 --> 00:02:07,880 Speaker 1: and someone on the bench isn't going to be I 38 00:02:07,920 --> 00:02:11,360 Speaker 1: think as as committed on those questions of methodology. And 39 00:02:11,400 --> 00:02:13,639 Speaker 1: so I think it's really harder to predict than they're 40 00:02:13,720 --> 00:02:17,840 Speaker 1: much more likely I think to be more pragmatic about them, Ernie. 41 00:02:18,080 --> 00:02:22,239 Speaker 1: So since Trump has always mentioned, even you know, during 42 00:02:22,320 --> 00:02:26,640 Speaker 1: the campaign, that he wanted someone just like Justice Scalia 43 00:02:27,520 --> 00:02:33,200 Speaker 1: is Gorsets closer to Justice Scalia Um, I think that's 44 00:02:33,320 --> 00:02:34,840 Speaker 1: very hard to say. I don't know either one of 45 00:02:34,840 --> 00:02:38,200 Speaker 1: them well enough to say that. I think that. I 46 00:02:38,200 --> 00:02:40,200 Speaker 1: think course It's may have a little more of a 47 00:02:40,200 --> 00:02:48,040 Speaker 1: reputation as somebody with I don't want to say, interest 48 00:02:48,120 --> 00:02:52,160 Speaker 1: in these issues outside the context of individual cases. So 49 00:02:52,440 --> 00:02:55,920 Speaker 1: he wrote a book about UM assistant suicide and things 50 00:02:55,960 --> 00:03:00,240 Speaker 1: like that, UM, which you may give him a little 51 00:03:00,240 --> 00:03:03,240 Speaker 1: more of an academic turn behind and a little more 52 00:03:03,280 --> 00:03:07,280 Speaker 1: of a focus on those questions of methodology. UM. Having 53 00:03:07,280 --> 00:03:09,280 Speaker 1: met Justice Schallea, I would just say there is no 54 00:03:09,320 --> 00:03:12,560 Speaker 1: one like Justice schal I mean in terms of the 55 00:03:12,680 --> 00:03:18,800 Speaker 1: flamboyance and the width and UM determination too at the 56 00:03:18,840 --> 00:03:23,200 Speaker 1: same time that you are UM deciding cases as a 57 00:03:23,280 --> 00:03:26,120 Speaker 1: judge also kind of teach a seminar in an ongoing 58 00:03:26,160 --> 00:03:28,640 Speaker 1: way about you know, how to interpret the Constitution. I 59 00:03:28,680 --> 00:03:33,079 Speaker 1: think that that makes him unique, Ernie. There's this perception 60 00:03:33,120 --> 00:03:35,320 Speaker 1: into some degree. I think it's probably true that some 61 00:03:35,440 --> 00:03:39,800 Speaker 1: justices get more liberal as they get on the court. Now, 62 00:03:39,920 --> 00:03:42,680 Speaker 1: now when you clerk for justice suitor which was like, 63 00:03:42,680 --> 00:03:46,160 Speaker 1: what is that that? Right? So he've been there for 64 00:03:46,200 --> 00:03:51,560 Speaker 1: about five or six years and had I think already 65 00:03:51,600 --> 00:03:55,600 Speaker 1: seemingly developed a reputation, developed a record as being more 66 00:03:55,600 --> 00:03:57,840 Speaker 1: liberal than some people had thought. But I want to 67 00:03:57,840 --> 00:04:02,720 Speaker 1: ask you, why, in your mind do justices sometimes change 68 00:04:02,760 --> 00:04:05,200 Speaker 1: and why does it seem like they always change by 69 00:04:05,240 --> 00:04:09,240 Speaker 1: becoming more liberal once they get on the court. I 70 00:04:09,240 --> 00:04:11,680 Speaker 1: don't think they always changed by becoming more liberal. I 71 00:04:11,920 --> 00:04:14,960 Speaker 1: would say Byron White, for instance, um was you know, 72 00:04:14,960 --> 00:04:17,120 Speaker 1: a Kennedy appointee and a member of the War in 73 00:04:17,160 --> 00:04:21,120 Speaker 1: court majority and yet uncertain issues. He turned out to 74 00:04:21,200 --> 00:04:25,440 Speaker 1: be a quiet conservative voice, especially in the in his 75 00:04:25,560 --> 00:04:31,200 Speaker 1: later years. Um So, I don't think it's inevitable. Um. 76 00:04:31,240 --> 00:04:34,640 Speaker 1: I think in suitors case there was a misjudgment perhaps 77 00:04:34,760 --> 00:04:38,000 Speaker 1: about what sort of conservative he was, and in terms 78 00:04:38,000 --> 00:04:40,799 Speaker 1: of his commitment to history as as an important source 79 00:04:40,839 --> 00:04:45,919 Speaker 1: of constitutional meaning, there was no inconsistency. He remained committed 80 00:04:45,960 --> 00:04:49,480 Speaker 1: to that. He was a far more um conscientious originalist 81 00:04:49,720 --> 00:04:52,480 Speaker 1: I think than antonin Scalia was. I would point you 82 00:04:52,520 --> 00:04:55,400 Speaker 1: to a case like Seminal Tribe versus Florida, in which 83 00:04:55,880 --> 00:04:58,839 Speaker 1: just a suitor wrote a ninety page dissent that is 84 00:04:58,880 --> 00:05:04,000 Speaker 1: all history, text and justiceally to join the majority UM 85 00:05:04,120 --> 00:05:06,800 Speaker 1: that didn't really have much of historical leg to stand on. 86 00:05:07,040 --> 00:05:09,240 Speaker 1: So I think, you know, history is going to point 87 00:05:09,279 --> 00:05:12,920 Speaker 1: you in different directions politically depending on the issue. So, 88 00:05:13,040 --> 00:05:17,720 Speaker 1: for instance, in in you know, national security cases, for instance, 89 00:05:17,920 --> 00:05:22,359 Speaker 1: framers were probably more suspicious of presidential power than people 90 00:05:22,360 --> 00:05:26,479 Speaker 1: who are more focused on, um, the current dangerous environment 91 00:05:26,560 --> 00:05:30,560 Speaker 1: that the nation operates in an establishment clause cases, I 92 00:05:30,560 --> 00:05:34,599 Speaker 1: think the history tends to point in a little more um, 93 00:05:34,760 --> 00:05:38,360 Speaker 1: you know, progressive direction, I guess, or a direction that's 94 00:05:38,400 --> 00:05:42,640 Speaker 1: associated with it with liberal um thought now than um, 95 00:05:42,720 --> 00:05:45,560 Speaker 1: the current situation might warrant. So the history can cut 96 00:05:45,600 --> 00:05:49,480 Speaker 1: all sorts of ways, Um, why did they why did 97 00:05:49,480 --> 00:05:54,800 Speaker 1: they move? In some ways? I think there's a sense um, 98 00:05:54,920 --> 00:05:56,800 Speaker 1: sometimes there's an effort to make sure that all the 99 00:05:56,880 --> 00:06:00,560 Speaker 1: positions are represented right, that every argument is getting a 100 00:06:00,839 --> 00:06:03,480 Speaker 1: fair shake. I think, for instance, just as Kennedy has 101 00:06:03,520 --> 00:06:06,400 Speaker 1: moved a little bit as he thought the court was 102 00:06:07,160 --> 00:06:09,640 Speaker 1: getting unbalanced in one direction or another to kind of 103 00:06:09,680 --> 00:06:13,720 Speaker 1: maintain some kind of balance. Um, so that maybe I 104 00:06:14,160 --> 00:06:16,840 Speaker 1: think in many cases these these reasons are just the 105 00:06:16,880 --> 00:06:22,200 Speaker 1: iriosyncratic to the individual. Ernie. Senate Minority Leader Chuck Schumer says, 106 00:06:22,240 --> 00:06:27,479 Speaker 1: the Democrats with filibuster any nominee that's who's out of 107 00:06:27,480 --> 00:06:33,120 Speaker 1: the mainstream. Would you consider these two out of the mainstream, Oh, 108 00:06:33,160 --> 00:06:36,760 Speaker 1: absolutely not. I mean, I think they are firmly within 109 00:06:37,320 --> 00:06:43,320 Speaker 1: the mainstream of you know, American legal culture. I mean 110 00:06:43,320 --> 00:06:46,520 Speaker 1: they are Republicans. Um. And one thing that I think 111 00:06:46,560 --> 00:06:50,520 Speaker 1: people don't get is that even it's not that they 112 00:06:50,520 --> 00:06:55,440 Speaker 1: are injecting politics into their legal reasoning. It's just simply 113 00:06:55,520 --> 00:06:59,880 Speaker 1: that there are kind of well entrenched divisions about sir 114 00:07:00,320 --> 00:07:03,839 Speaker 1: legal questions that tend to correlate fairly well with the 115 00:07:03,880 --> 00:07:07,320 Speaker 1: political party. So the Republicans tend to have a few 116 00:07:07,320 --> 00:07:11,160 Speaker 1: about how far national power extents. That's different from jurists 117 00:07:11,200 --> 00:07:14,960 Speaker 1: who who are appointed by Democrats. UM. Doesn't mean they're 118 00:07:15,120 --> 00:07:17,800 Speaker 1: they're focusing on politics rather than law. It's just a 119 00:07:17,920 --> 00:07:22,160 Speaker 1: fairly predictable, um way that you know, certain kinds of 120 00:07:22,240 --> 00:07:25,640 Speaker 1: judges resolve certain kinds of legal questions. But I think 121 00:07:25,680 --> 00:07:30,360 Speaker 1: these are quite conventional and Trump is an unconventional Republican 122 00:07:30,400 --> 00:07:34,040 Speaker 1: President in a lot of ways, but in his all 123 00:07:34,080 --> 00:07:37,080 Speaker 1: of the lists that he's promulgated about judicial appointments, he's 124 00:07:37,120 --> 00:07:40,440 Speaker 1: been pretty conventional. We're also joined at this point by 125 00:07:40,480 --> 00:07:44,120 Speaker 1: Michael Gerhard, professor at North Carolina Law School. He has 126 00:07:44,160 --> 00:07:47,760 Speaker 1: been deeply involved in I think the last five Supreme 127 00:07:47,800 --> 00:07:51,120 Speaker 1: Court nominations, one we or another. Michael, thanks for joining us. 128 00:07:51,400 --> 00:07:54,000 Speaker 1: Let me ask you this whole controversy we've had over 129 00:07:54,000 --> 00:07:57,520 Speaker 1: the past few days about the executive order banning travel 130 00:07:57,640 --> 00:08:00,480 Speaker 1: from some countries. Do you see that as a having 131 00:08:00,480 --> 00:08:03,600 Speaker 1: a significant significant effect on the confirmation process for this 132 00:08:03,680 --> 00:08:07,280 Speaker 1: new new justice or new perspective justice. Well, I think 133 00:08:07,320 --> 00:08:09,320 Speaker 1: there are a lot of people that will try to 134 00:08:09,400 --> 00:08:12,400 Speaker 1: ensure that it has some effects on it, but I'm 135 00:08:12,440 --> 00:08:15,360 Speaker 1: sure that the nominee, whoever that is, will avoid any 136 00:08:15,440 --> 00:08:18,360 Speaker 1: questions about it. And I think that it's it's a 137 00:08:18,640 --> 00:08:23,280 Speaker 1: it's obviously unfolding sort of legal issue, and it's exactly 138 00:08:23,360 --> 00:08:26,000 Speaker 1: the kind of thing no perspective nominees should addressed in 139 00:08:26,000 --> 00:08:29,400 Speaker 1: any way, shape or form. What might we have about 140 00:08:29,400 --> 00:08:31,640 Speaker 1: thirty seconds left? What issues do you see as being 141 00:08:32,720 --> 00:08:36,360 Speaker 1: the most crucial questions to ask of the nominee? Uh 142 00:08:36,520 --> 00:08:38,880 Speaker 1: from the Senate. I think I think they're gonna be 143 00:08:38,960 --> 00:08:41,840 Speaker 1: a handful of issues that are persistent interest. UH. The 144 00:08:41,880 --> 00:08:45,520 Speaker 1: privacy will be a big question, including abortion rights. I 145 00:08:45,520 --> 00:08:49,000 Speaker 1: think there'll be questions about student expression, including campaign finance reform. 146 00:08:49,160 --> 00:08:51,120 Speaker 1: I think they'll be questions about Second Amendment rights and 147 00:08:51,280 --> 00:08:53,240 Speaker 1: what kind of gun regulations may be consistent with the 148 00:08:53,280 --> 00:08:55,640 Speaker 1: Second Amendment. I think there's also be questions about how 149 00:08:55,720 --> 00:08:58,400 Speaker 1: far Congress is power to regulate the economy makes sten 150 00:08:59,080 --> 00:09:02,680 Speaker 1: um and UH. There may also be significant questions about 151 00:09:02,679 --> 00:09:04,640 Speaker 1: religious liberty. Those are just some of the ones I 152 00:09:04,679 --> 00:09:07,559 Speaker 1: think we can expect. I want to thank our guests, 153 00:09:07,960 --> 00:09:11,120 Speaker 1: Michael Gerhardt, the professor at University of North Carolina Law School, 154 00:09:11,480 --> 00:09:15,120 Speaker 1: and Ernest Young, professor at Duke University Law School. Donald 155 00:09:15,120 --> 00:09:19,120 Speaker 1: Trump has promised his announcement at eight o'clock this evening, 156 00:09:19,640 --> 00:09:23,120 Speaker 1: announcing either Tom Hardeman or Neil Gorsuch will be his 157 00:09:23,240 --> 00:09:26,720 Speaker 1: nominee to fill the year old Supreme Court vacancy.