1
00:00:03,200 --> 00:00:07,960
Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

2
00:00:09,520 --> 00:00:12,280
Speaker 1: In a six or three decision with an unusual alignment

3
00:00:12,280 --> 00:00:15,319
Speaker 1: of justices, the Supreme Court hand did a victory to

4
00:00:15,480 --> 00:00:19,079
Speaker 1: longtime illegal immigrants this week with a ruling that turned

5
00:00:19,120 --> 00:00:22,079
Speaker 1: on a single word, the smallest word in the English

6
00:00:22,120 --> 00:00:25,440
Speaker 1: language of that what does the word A mean in

7
00:00:25,480 --> 00:00:29,280
Speaker 1: the term a notice to appear? Justice Neil Gorsts wrote

8
00:00:29,280 --> 00:00:33,360
Speaker 1: the majority opinion and had telegraphed in oral arguments that

9
00:00:33,440 --> 00:00:37,000
Speaker 1: it means one notice. I would have thought the government

10
00:00:37,080 --> 00:00:40,279
Speaker 1: might have taken the hint from an ah Justice majority

11
00:00:40,280 --> 00:00:45,160
Speaker 1: in per a notice of appeal means what it seems

12
00:00:45,200 --> 00:00:47,960
Speaker 1: to me. Let me ask you this, what if what

13
00:00:48,000 --> 00:00:49,320
Speaker 1: if I had a law clerk and I said, in

14
00:00:49,360 --> 00:00:51,880
Speaker 1: my manu, my law cart manual, I want to bench

15
00:00:51,960 --> 00:00:56,080
Speaker 1: memoranimentalize in the facts law in your proposed disposition, and

16
00:00:56,200 --> 00:01:00,520
Speaker 1: instead of providing that my lawhart provided three step meadows,

17
00:01:00,920 --> 00:01:04,240
Speaker 1: each sailing various views of the facts or more on

18
00:01:04,280 --> 00:01:06,720
Speaker 1: the law. And then I don't know a couple on

19
00:01:07,160 --> 00:01:10,959
Speaker 1: proposed disposition, so that the bench memorandum, the answer Justice

20
00:01:11,040 --> 00:01:14,480
Speaker 1: course which was looking for, was no. Those nine separate

21
00:01:14,520 --> 00:01:18,200
Speaker 1: memos would not be a bench memorandum joining me is

22
00:01:18,280 --> 00:01:20,679
Speaker 1: Leon Fresco, a partner at Holland and Knight and the

23
00:01:20,760 --> 00:01:23,360
Speaker 1: former head of the Office of Immigration Litigation at the

24
00:01:23,440 --> 00:01:27,480
Speaker 1: Justice Department. Leon tell us how the notice to appear

25
00:01:27,920 --> 00:01:33,600
Speaker 1: figures into the process for deportation proceedings. Whenever the government

26
00:01:33,840 --> 00:01:38,119
Speaker 1: wants to play someone into removal proceeedings, it begins by

27
00:01:38,160 --> 00:01:40,520
Speaker 1: giving them a piece of paper, and that piece of

28
00:01:40,560 --> 00:01:43,880
Speaker 1: paper is called the notice to appear. That's the form

29
00:01:44,040 --> 00:01:47,160
Speaker 1: that looks the same every single time. You can Google

30
00:01:47,200 --> 00:01:50,600
Speaker 1: it and see it online. And that notice to appear

31
00:01:51,320 --> 00:01:53,600
Speaker 1: is supposed to have a date and time and location

32
00:01:53,720 --> 00:01:56,920
Speaker 1: and there's actually little black bomb the form wherein you

33
00:01:57,040 --> 00:01:59,880
Speaker 1: fill out the date and time and location of the area.

34
00:02:00,360 --> 00:02:03,880
Speaker 1: So in this case, the notice, like an honestly hundreds

35
00:02:03,880 --> 00:02:07,800
Speaker 1: of thousands of other cases, did not have that date

36
00:02:08,000 --> 00:02:12,239
Speaker 1: and time and location where to appear at the immigration

37
00:02:12,320 --> 00:02:16,320
Speaker 1: court hearing because what often happens in these cases is

38
00:02:16,400 --> 00:02:19,840
Speaker 1: when the government apprehends someone, especially in the southern border,

39
00:02:20,320 --> 00:02:24,240
Speaker 1: it doesn't have time to figure out where the hearing

40
00:02:24,360 --> 00:02:26,880
Speaker 1: is going to be at what they've designed to be at,

41
00:02:27,200 --> 00:02:29,840
Speaker 1: so it just places to be announced. C B A

42
00:02:30,600 --> 00:02:34,200
Speaker 1: on the notice to appear, and then you're supposed to

43
00:02:34,240 --> 00:02:38,640
Speaker 1: get some notice later that tells you, Okay, you moved

44
00:02:38,639 --> 00:02:41,320
Speaker 1: to Los Angeles or you moved to New York. Here

45
00:02:41,560 --> 00:02:44,240
Speaker 1: is when you're hearing is going to be And so

46
00:02:44,440 --> 00:02:48,720
Speaker 1: that's what's been usually happening, but that practice was challenged

47
00:02:48,760 --> 00:02:53,040
Speaker 1: in this case. So in this case, Augusta Nisha Vez,

48
00:02:53,440 --> 00:02:56,440
Speaker 1: a Guatemalan immigrant who came to the US illegally in

49
00:02:56,480 --> 00:03:00,160
Speaker 1: two thousand five, received his first notice to appear at

50
00:03:00,200 --> 00:03:03,720
Speaker 1: a deportation here in eight years later. Explain why the

51
00:03:03,800 --> 00:03:08,280
Speaker 1: timing is so important here, Well, so here is the issue.

52
00:03:08,360 --> 00:03:11,000
Speaker 1: So this is about a very small sliver of cases,

53
00:03:11,560 --> 00:03:15,800
Speaker 1: which are called cancelation of removal cases. And in order

54
00:03:15,880 --> 00:03:19,720
Speaker 1: to be eligible for cancelation of removal, you have to

55
00:03:19,840 --> 00:03:22,600
Speaker 1: be someone who's been in the United States for ten

56
00:03:22,919 --> 00:03:28,799
Speaker 1: years before you were placed into removal proceedings. And during

57
00:03:28,800 --> 00:03:32,520
Speaker 1: those ten years you have to have basically had a

58
00:03:32,639 --> 00:03:37,120
Speaker 1: qualifying relative that now is the reason why your removal

59
00:03:37,160 --> 00:03:39,960
Speaker 1: should be canceled. So you've given birth to a US

60
00:03:40,040 --> 00:03:45,160
Speaker 1: citizen or you married a US citizen, and in those situations,

61
00:03:45,240 --> 00:03:49,320
Speaker 1: if you can prove that your removal will cause extreme

62
00:03:49,480 --> 00:03:53,560
Speaker 1: and unusual hardship, but usually because that that relative has

63
00:03:53,640 --> 00:03:57,000
Speaker 1: some major medical issue or something like that, and if

64
00:03:57,000 --> 00:03:59,760
Speaker 1: you were to leave, they would have totally someone not

65
00:04:00,040 --> 00:04:03,040
Speaker 1: able to defend their interests and so they probably die.

66
00:04:03,120 --> 00:04:06,440
Speaker 1: If you left, you could get this relief called cancelation

67
00:04:06,480 --> 00:04:10,040
Speaker 1: of removal. And so the question in this case is, well,

68
00:04:10,040 --> 00:04:13,320
Speaker 1: how do you prove that you have been in the

69
00:04:13,400 --> 00:04:18,000
Speaker 1: United States for ten years before your removal proceedings started?

70
00:04:18,560 --> 00:04:21,480
Speaker 1: And so for people who never were even placed at

71
00:04:21,520 --> 00:04:25,400
Speaker 1: the removal proceedings for ten years, that's easy enough. But

72
00:04:25,640 --> 00:04:29,080
Speaker 1: for someone who got a notice that didn't tell them

73
00:04:29,120 --> 00:04:32,200
Speaker 1: what the date and time of the hearing? One could

74
00:04:32,720 --> 00:04:36,760
Speaker 1: that notice then stop the clock so to seek meaning

75
00:04:37,160 --> 00:04:40,520
Speaker 1: you were properly placed in removal proceedings before you had

76
00:04:40,640 --> 00:04:44,120
Speaker 1: established that you lived in the United States for ten years,

77
00:04:44,800 --> 00:04:47,239
Speaker 1: and what the court rook is. The answer that question

78
00:04:47,320 --> 00:04:50,240
Speaker 1: is no. The only way to stop the clock is

79
00:04:50,279 --> 00:04:53,800
Speaker 1: to serve that document, the notice to appear in the

80
00:04:53,880 --> 00:04:56,799
Speaker 1: proper way, filling in all the blames with the data

81
00:04:56,800 --> 00:04:59,560
Speaker 1: and time and location of the hearing. And the focus

82
00:04:59,560 --> 00:05:03,120
Speaker 1: in the decision was on the article A in the

83
00:05:03,160 --> 00:05:09,440
Speaker 1: phrase a notice to appear correct meaning the question was

84
00:05:10,200 --> 00:05:14,680
Speaker 1: in this case, did the ten year period that needed

85
00:05:14,720 --> 00:05:18,400
Speaker 1: to take place before you were placed at removal proceedings

86
00:05:18,720 --> 00:05:22,640
Speaker 1: stop the first time you were given any notice, even

87
00:05:22,640 --> 00:05:25,240
Speaker 1: if it wasn't a complete notice, or did it need

88
00:05:25,320 --> 00:05:28,200
Speaker 1: to be a complete notice to appear with everything that's

89
00:05:28,240 --> 00:05:32,520
Speaker 1: required in the notice to appear? And what Justice Gorson

90
00:05:32,680 --> 00:05:37,160
Speaker 1: said is because it said a quote notice to appear,

91
00:05:37,560 --> 00:05:40,280
Speaker 1: that means has to be in one document, one notice

92
00:05:40,320 --> 00:05:43,280
Speaker 1: to appear that has all of the items to it.

93
00:05:43,279 --> 00:05:46,000
Speaker 1: It could be that you got this one document, a

94
00:05:46,080 --> 00:05:49,920
Speaker 1: notice to appear, and that document says TB A to

95
00:05:50,080 --> 00:05:52,640
Speaker 1: be abound, and then you get another piece of paper

96
00:05:52,720 --> 00:05:55,960
Speaker 1: later that's not the form called the notice to appear

97
00:05:56,360 --> 00:05:59,000
Speaker 1: that tells you, hey, you're hearing is on October fourth

98
00:06:00,040 --> 00:06:02,880
Speaker 1: one at the Houston Court House. That's not gonna work.

99
00:06:03,200 --> 00:06:07,320
Speaker 1: You actually have to get the document from notice to appear.

100
00:06:07,480 --> 00:06:10,960
Speaker 1: That's why it says a quote notice to appear. And

101
00:06:11,120 --> 00:06:13,920
Speaker 1: only if you get that document with everything in it

102
00:06:14,000 --> 00:06:17,120
Speaker 1: that is required by law, have you been properly placed

103
00:06:17,120 --> 00:06:21,200
Speaker 1: into removal proceedings such that's at that moment we stopped

104
00:06:21,200 --> 00:06:23,520
Speaker 1: counting whether you've been in the US for ten years

105
00:06:23,640 --> 00:06:27,880
Speaker 1: or not justice. Course, such wrote that the dispute may

106
00:06:28,000 --> 00:06:32,040
Speaker 1: seem semantic since the gentlystices are basing the decision on

107
00:06:32,160 --> 00:06:36,479
Speaker 1: the meaning of one word, isn't it semantic? Well, it's

108
00:06:36,520 --> 00:06:41,159
Speaker 1: semantic in terms of how you define an article in

109
00:06:41,200 --> 00:06:44,800
Speaker 1: a statute. But in real life, this is now going

110
00:06:44,839 --> 00:06:49,119
Speaker 1: to mean hundreds of thousands of individuals who have US

111
00:06:49,200 --> 00:06:54,000
Speaker 1: citizen children or got married, but they can't change their

112
00:06:54,040 --> 00:06:56,600
Speaker 1: status because people think when you get married, you can

113
00:06:56,680 --> 00:06:59,040
Speaker 1: change your status. But that's only true of you overstayed

114
00:06:59,080 --> 00:07:02,600
Speaker 1: the visa, not true if you entered illegally by crossing

115
00:07:02,640 --> 00:07:05,680
Speaker 1: the border. So for all the people who entered illegally

116
00:07:05,720 --> 00:07:08,520
Speaker 1: by crossing the border and got married to a US citizen,

117
00:07:08,960 --> 00:07:10,800
Speaker 1: or for all of the people who have had U

118
00:07:10,880 --> 00:07:14,760
Speaker 1: s citizens children since they acquired illegal status in the

119
00:07:14,800 --> 00:07:18,720
Speaker 1: United States, for any of those people, they can now

120
00:07:18,880 --> 00:07:23,920
Speaker 1: move to reopen their case and apply for cancelation of removal,

121
00:07:24,080 --> 00:07:27,560
Speaker 1: and that will actually have two different benefits. One, they

122
00:07:27,640 --> 00:07:31,760
Speaker 1: might actually get cancelation of removal, although that's unlikely because

123
00:07:31,760 --> 00:07:34,200
Speaker 1: there's an annual cap of four thousand and there's a

124
00:07:34,240 --> 00:07:37,440
Speaker 1: huge line already, so it's unlikely that that will happen.

125
00:07:37,480 --> 00:07:40,960
Speaker 1: But what's more likely to happen is that by reopening

126
00:07:41,000 --> 00:07:46,480
Speaker 1: their removal proceeding, they will no longer have a removal

127
00:07:46,640 --> 00:07:49,840
Speaker 1: order against them, which means they're back to normal. And

128
00:07:49,920 --> 00:07:53,440
Speaker 1: so what could then happen, especially for the people whose

129
00:07:53,520 --> 00:07:57,880
Speaker 1: children will have turned twenty one maybe during the Biden administration,

130
00:07:58,560 --> 00:08:02,640
Speaker 1: is that once goes to older in one, they can

131
00:08:02,680 --> 00:08:05,320
Speaker 1: apply for green cards for their parents and the parrots

132
00:08:05,360 --> 00:08:09,240
Speaker 1: doesn't have a removal order against them. So this is

133
00:08:09,280 --> 00:08:13,680
Speaker 1: actually potentially going to lead to the regularization of the

134
00:08:13,760 --> 00:08:17,520
Speaker 1: status of at least a few thousand people and maybe

135
00:08:17,600 --> 00:08:21,080
Speaker 1: tens of thousands of people. Let's talk about the lineup

136
00:08:21,400 --> 00:08:24,520
Speaker 1: justice course which wrote the majority opinion. The majority also

137
00:08:24,600 --> 00:08:29,920
Speaker 1: included Justices Clarence Thomas, Stephen Bryer, Sonya Sotomayor, Elena Kaig

138
00:08:30,000 --> 00:08:33,200
Speaker 1: and Amy Coney Barrett. The descent was written by Justice

139
00:08:33,200 --> 00:08:37,760
Speaker 1: Brett Kavanaugh, joined by Chief Justice John Roberts and Samuel Alito.

140
00:08:38,360 --> 00:08:42,120
Speaker 1: How do you account for those alliances? I think if

141
00:08:42,160 --> 00:08:45,880
Speaker 1: you're a textual is there's no way you could have

142
00:08:46,080 --> 00:08:49,960
Speaker 1: ruled gets what the ruling was in this case. It

143
00:08:50,080 --> 00:08:53,559
Speaker 1: literally says a notice to appear, and it says in

144
00:08:53,679 --> 00:08:55,840
Speaker 1: the stattoo what the notice to appear has to had.

145
00:08:56,559 --> 00:09:00,800
Speaker 1: The problem is, if you're sort of a practical policy person,

146
00:09:00,920 --> 00:09:04,280
Speaker 1: you might say, well, my lord, this point beheaded sort

147
00:09:04,320 --> 00:09:07,520
Speaker 1: of conclusion is going to drive us to a point

148
00:09:07,520 --> 00:09:09,760
Speaker 1: where what is the government's supposed to do. There's no

149
00:09:09,800 --> 00:09:12,400
Speaker 1: way it can know when the hearing is going to

150
00:09:12,480 --> 00:09:15,280
Speaker 1: be when it first apprehends people, and so this is

151
00:09:15,320 --> 00:09:18,360
Speaker 1: not practical, and so we can't interp for laws in

152
00:09:18,360 --> 00:09:22,800
Speaker 1: a way that are not practicable to enforce. But that's

153
00:09:23,280 --> 00:09:28,880
Speaker 1: not what the Congress intended. The Congress intended that you

154
00:09:28,960 --> 00:09:32,800
Speaker 1: get a notice to appear, and that notice that tells

155
00:09:32,840 --> 00:09:36,520
Speaker 1: you where to appear and when is what triggers your

156
00:09:36,520 --> 00:09:39,840
Speaker 1: removal proceeding. And so what's the court said is, even

157
00:09:39,880 --> 00:09:43,040
Speaker 1: if you think this is not practical, if it's reasonable

158
00:09:43,160 --> 00:09:46,400
Speaker 1: enough to think why Congress would have wanted you to

159
00:09:46,480 --> 00:09:49,360
Speaker 1: get that in one notice and not in several notices,

160
00:09:49,679 --> 00:09:52,679
Speaker 1: because if you lose one of the several notices, then

161
00:09:52,720 --> 00:09:54,920
Speaker 1: you still don't know when you're hearing. Is so that's

162
00:09:54,920 --> 00:09:58,120
Speaker 1: a practical enough reason why you could say, converse asked

163
00:09:58,160 --> 00:10:01,200
Speaker 1: for one notice, the case is over. That's it. We

164
00:10:01,280 --> 00:10:04,040
Speaker 1: don't get into these discussions of well does one make

165
00:10:04,160 --> 00:10:08,480
Speaker 1: more sense then the other? The statute clearly reads one notice,

166
00:10:08,920 --> 00:10:11,560
Speaker 1: and there's a reason why Congress might have all wanted

167
00:10:11,559 --> 00:10:13,880
Speaker 1: this to be in one notice. So that's the end

168
00:10:13,920 --> 00:10:16,440
Speaker 1: of the analysis. So let me ask you about the

169
00:10:16,480 --> 00:10:22,199
Speaker 1: Descent also used textualism, but came to a different decision

170
00:10:22,240 --> 00:10:26,880
Speaker 1: on how to understand the article A right. The Descent

171
00:10:27,200 --> 00:10:30,840
Speaker 1: was basically making an argument about that there was no

172
00:10:30,920 --> 00:10:35,160
Speaker 1: practical way to interpret the statute in the way that

173
00:10:35,240 --> 00:10:37,960
Speaker 1: the people who were challenging this we're saying. They first

174
00:10:38,000 --> 00:10:41,760
Speaker 1: of all, they really were upset that the argument chosen

175
00:10:41,920 --> 00:10:44,440
Speaker 1: by the majority opinion was not even one that was

176
00:10:44,559 --> 00:10:49,040
Speaker 1: briefed about this issue of A the letter A meaning singular.

177
00:10:49,679 --> 00:10:52,040
Speaker 1: They claimed that wasn't even really briefed in the case.

178
00:10:52,120 --> 00:10:55,560
Speaker 1: This was a decision that Justice Gorsage appeared to just

179
00:10:55,679 --> 00:10:58,280
Speaker 1: come up with on his own and then was able

180
00:10:58,360 --> 00:11:01,080
Speaker 1: to rally his five other leagues around getting it. So

181
00:11:01,120 --> 00:11:05,160
Speaker 1: that was their first criticism of the decision. But moving forward,

182
00:11:05,480 --> 00:11:08,360
Speaker 1: what they were really trying to get at is that

183
00:11:09,120 --> 00:11:12,840
Speaker 1: the A doesn't necessarily being a singular. If you say

184
00:11:12,880 --> 00:11:17,000
Speaker 1: a manu spirit, a manu sprit comes over courses of time,

185
00:11:17,520 --> 00:11:19,360
Speaker 1: and so that could be the same thing as the

186
00:11:19,440 --> 00:11:22,000
Speaker 1: notice to appear, So that there's no reason the aid

187
00:11:22,160 --> 00:11:28,160
Speaker 1: necessarily required a singular notice. And so because it's not

188
00:11:28,320 --> 00:11:31,720
Speaker 1: practical to expect the government at the border to know

189
00:11:31,800 --> 00:11:34,960
Speaker 1: when and where everybody's hearing was gonna be, why should

190
00:11:35,000 --> 00:11:37,280
Speaker 1: they have to know that in order to start the

191
00:11:37,320 --> 00:11:40,520
Speaker 1: removal proceeding? Why should a person get the benefits of

192
00:11:40,559 --> 00:11:44,239
Speaker 1: these proceedings if the government never served the right documents

193
00:11:44,480 --> 00:11:47,720
Speaker 1: to which Justice course had said, Well, because that's the

194
00:11:47,760 --> 00:11:50,719
Speaker 1: way of the bureaucracy works. People all the time are

195
00:11:50,800 --> 00:11:53,000
Speaker 1: punished for not filling out the right forms of the

196
00:11:53,080 --> 00:11:55,680
Speaker 1: right way. So if the government doesn't fill out the

197
00:11:55,760 --> 00:11:57,800
Speaker 1: right forms in the right way, it should have the

198
00:11:57,840 --> 00:12:00,680
Speaker 1: same punishments that people get what they don't of the

199
00:12:00,760 --> 00:12:04,080
Speaker 1: right forms in the right way. So what does it

200
00:12:04,160 --> 00:12:08,120
Speaker 1: tell you that textualism was used to justify both the

201
00:12:08,240 --> 00:12:12,880
Speaker 1: majority and the dissent. There are textualists on both sides

202
00:12:12,920 --> 00:12:16,560
Speaker 1: of these arguments, and no matter what ethos or governing

203
00:12:16,600 --> 00:12:19,520
Speaker 1: principle you use, you'll always be able to get to

204
00:12:19,559 --> 00:12:21,920
Speaker 1: a different outcome. But at the end of the day,

205
00:12:21,960 --> 00:12:24,959
Speaker 1: the reason you have the amalgamation of justices that you

206
00:12:25,040 --> 00:12:27,640
Speaker 1: have in this case is because you have both the

207
00:12:27,720 --> 00:12:32,960
Speaker 1: practical and the fairness arguments and the literal interpretation of

208
00:12:33,000 --> 00:12:36,480
Speaker 1: the statute argument merged into the same results, which is

209
00:12:36,480 --> 00:12:40,439
Speaker 1: the compassionate results of this case. And that's rarely the case,

210
00:12:40,520 --> 00:12:42,880
Speaker 1: but when it happens, that's why you get a six

211
00:12:43,000 --> 00:12:45,760
Speaker 1: or three ruling here. So what happens to the guatemal

212
00:12:45,800 --> 00:12:49,760
Speaker 1: And immigrant in this case now? So now this person

213
00:12:49,840 --> 00:12:53,880
Speaker 1: can actually reopen their proceedings and try to make the

214
00:12:54,000 --> 00:12:58,559
Speaker 1: argument that their deportation would harm a U s it

215
00:12:58,720 --> 00:13:02,120
Speaker 1: is a child because it would lead to extreme an

216
00:13:02,160 --> 00:13:04,880
Speaker 1: unusual hardship to that U s it is in child.

217
00:13:04,960 --> 00:13:08,200
Speaker 1: The question will be will they be early enough in

218
00:13:08,280 --> 00:13:10,000
Speaker 1: the cap to be able to get one of the

219
00:13:10,040 --> 00:13:12,600
Speaker 1: four thousand green cards available each year where they have

220
00:13:12,720 --> 00:13:16,320
Speaker 1: to wait several years, or will they be able to

221
00:13:16,360 --> 00:13:19,600
Speaker 1: get a green card from their child eventually when the

222
00:13:19,679 --> 00:13:23,880
Speaker 1: child turns one, so long as the court and basically

223
00:13:23,920 --> 00:13:27,000
Speaker 1: the Biden administration is willing to hold the proceedings in

224
00:13:27,040 --> 00:13:30,200
Speaker 1: a bay in until the child turns one, or even

225
00:13:30,360 --> 00:13:34,200
Speaker 1: administratively closed the proceeding, which you can imagine the Biden

226
00:13:34,240 --> 00:13:38,360
Speaker 1: administration doing in many cases. Moving forward, Thanks Leon, that's

227
00:13:38,440 --> 00:13:42,239
Speaker 1: Leon Fresco of Hollanden Night. Coming up next, the justices

228
00:13:42,320 --> 00:13:47,760
Speaker 1: will confront the confrontation clause. This is Bloomberg the first

229
00:13:47,760 --> 00:13:51,679
Speaker 1: Senate here and for President Joe Biden's judicial nominations seemed

230
00:13:51,720 --> 00:13:55,320
Speaker 1: to go fairly smoothly. The committee heard from five nominees,

231
00:13:55,360 --> 00:13:59,040
Speaker 1: with Judge Katangi Brown Jackson attracting most of the attention.

232
00:13:59,400 --> 00:14:02,880
Speaker 1: Joining me is Madison Alder, Bloomberg Law reporter. When did

233
00:14:02,880 --> 00:14:08,080
Speaker 1: the White House begin vetting judicial nominees? So we learned

234
00:14:08,120 --> 00:14:11,640
Speaker 1: from the documents that the nominees who were at the

235
00:14:11,640 --> 00:14:16,600
Speaker 1: most recent Senate Judiciary Committing hearing submitted that the White

236
00:14:16,640 --> 00:14:21,120
Speaker 1: House started vetting nominees pretty early on um Katondi Brown Jackson,

237
00:14:21,240 --> 00:14:24,960
Speaker 1: who is Biden's pick for the DC Circuit and it's

238
00:14:25,000 --> 00:14:28,200
Speaker 1: kind of thought of as a favorite for potential Supreme

239
00:14:28,240 --> 00:14:32,160
Speaker 1: Court vacancy, was contacted by the White House on January

240
00:14:32,520 --> 00:14:35,280
Speaker 1: which is six days after Biden was not gary that

241
00:14:35,960 --> 00:14:39,840
Speaker 1: we also have, uh, you know, Candice Jackson Akiblumy, who

242
00:14:39,920 --> 00:14:42,520
Speaker 1: was one of the nominees that the hearing, the Senate

243
00:14:42,600 --> 00:14:46,240
Speaker 1: Judiciary Committee hearing on Wednesday. She was contacted by the

244
00:14:46,320 --> 00:14:50,880
Speaker 1: White House on January eleven and asked about, you know,

245
00:14:50,960 --> 00:14:53,880
Speaker 1: the potential vacancy the following day. So the White House

246
00:14:53,960 --> 00:14:56,800
Speaker 1: is really getting started quite early on this, um, you know,

247
00:14:57,000 --> 00:15:02,400
Speaker 1: compared to previous administrations. Um. The Trump administration got started

248
00:15:02,480 --> 00:15:05,680
Speaker 1: fairly early as well with their first Lower Court nominee

249
00:15:05,680 --> 00:15:08,480
Speaker 1: in most of heart Um, you know, so did Obama.

250
00:15:08,600 --> 00:15:11,400
Speaker 1: He reached out to his first appeal of Court nominee

251
00:15:11,560 --> 00:15:15,720
Speaker 1: in January. Biden, as we all know, I had eleven

252
00:15:15,720 --> 00:15:18,640
Speaker 1: nominees in his first list, so it was kind of

253
00:15:18,680 --> 00:15:21,840
Speaker 1: a larger group of people in that first group that

254
00:15:21,880 --> 00:15:25,920
Speaker 1: they were looking at. Explain that how the nomination process works.

255
00:15:26,200 --> 00:15:29,440
Speaker 1: Take us through it because some people think that, you know,

256
00:15:29,600 --> 00:15:32,600
Speaker 1: Biden just looks at the lists and decides who he wants.

257
00:15:32,840 --> 00:15:35,960
Speaker 1: But it's more complicated than that. So it is more

258
00:15:35,960 --> 00:15:41,240
Speaker 1: complicated than that. Um. The Biden administration works with senators

259
00:15:41,280 --> 00:15:45,120
Speaker 1: to um look at nominees for their states, especially in

260
00:15:45,200 --> 00:15:48,760
Speaker 1: the district court level. And blue slip is is how

261
00:15:48,880 --> 00:15:51,720
Speaker 1: senators will indicate their support for nominee. It's natural blue

262
00:15:51,760 --> 00:15:55,080
Speaker 1: slip of paper in which they indicate their support. That

263
00:15:55,280 --> 00:15:57,400
Speaker 1: is no longer in place for the fields court nominee

264
00:15:57,480 --> 00:16:01,200
Speaker 1: as the Republicans did away with that during the Trump administration. UM,

265
00:16:01,240 --> 00:16:02,920
Speaker 1: but they still have to work with senators for for

266
00:16:03,000 --> 00:16:06,960
Speaker 1: district court picks and the buying administrations, you know, trying

267
00:16:06,960 --> 00:16:09,120
Speaker 1: to work with with Democrats right now in the Senate,

268
00:16:09,240 --> 00:16:12,440
Speaker 1: there's a few vacancies and in red states and purple

269
00:16:12,480 --> 00:16:15,240
Speaker 1: states as well, so that's that's a big part of

270
00:16:15,240 --> 00:16:19,360
Speaker 1: the process. And White House Council dainagrenas on the certain

271
00:16:19,400 --> 00:16:24,080
Speaker 1: transition as senators of Democratic senators to make sure that

272
00:16:24,120 --> 00:16:28,280
Speaker 1: they are affording names quickly, and asked senators to send

273
00:16:28,360 --> 00:16:32,720
Speaker 1: names for already vacant seats by January nineteenth, the day

274
00:16:32,720 --> 00:16:37,600
Speaker 1: before inauguration, and for any vacancies after that within forty

275
00:16:37,640 --> 00:16:41,680
Speaker 1: five days of you know, vacancies. So they're basically asking

276
00:16:41,720 --> 00:16:44,320
Speaker 1: for people to speed up this process, to get quicker,

277
00:16:44,720 --> 00:16:47,680
Speaker 1: UM with this process, so that on their end they

278
00:16:47,720 --> 00:16:51,320
Speaker 1: can you know, do do things um expeditiously as well.

279
00:16:51,320 --> 00:16:53,440
Speaker 1: And on the White House end, you know, they're they're

280
00:16:53,440 --> 00:16:56,440
Speaker 1: getting the candidates, they're doing background checks on them, they're

281
00:16:56,480 --> 00:16:59,720
Speaker 1: interviewing them. Um. Their process, from what I've heard, is

282
00:16:59,720 --> 00:17:03,160
Speaker 1: a lot of paperwork. So UM, that also takes quite

283
00:17:03,160 --> 00:17:07,440
Speaker 1: some time before they can actually formally nominate people. So

284
00:17:07,800 --> 00:17:12,840
Speaker 1: why is the Biden administration seemingly in this rush to

285
00:17:12,960 --> 00:17:16,560
Speaker 1: get nominees? They have four years in office? What is

286
00:17:16,560 --> 00:17:20,680
Speaker 1: the rush? So part of the rush is that, Um,

287
00:17:21,000 --> 00:17:24,920
Speaker 1: the Senate majority is very slim. Uh. You know, Democrats

288
00:17:24,960 --> 00:17:30,080
Speaker 1: have the fifty fifty split right now, very very slim margin. Um,

289
00:17:30,160 --> 00:17:32,480
Speaker 1: the slimness of margins for the majority of the Senate,

290
00:17:33,080 --> 00:17:37,359
Speaker 1: and mid terms often don't turn out well for for

291
00:17:37,400 --> 00:17:40,639
Speaker 1: the party in the White House. So what they're worried about,

292
00:17:40,760 --> 00:17:45,159
Speaker 1: or you know, what could happen, um, is that the

293
00:17:45,200 --> 00:17:49,480
Speaker 1: Senate could change hands and getting judicial nominees advanced would

294
00:17:49,520 --> 00:17:52,680
Speaker 1: become that much harder. If you have a Republican majority

295
00:17:52,680 --> 00:17:56,840
Speaker 1: in the Senate, they could easily block any of Biden's

296
00:17:56,880 --> 00:18:01,560
Speaker 1: judicial picks. That happened with President brockle Vama. His judicial

297
00:18:01,600 --> 00:18:05,200
Speaker 1: nominees did not move forward when Republicans were in control

298
00:18:05,240 --> 00:18:08,280
Speaker 1: of the Senate. So I think that's the large part

299
00:18:08,320 --> 00:18:10,680
Speaker 1: of why the administration would like to move quickly here.

300
00:18:11,080 --> 00:18:14,440
Speaker 1: So you mentioned the early deadlines that the Biden administration

301
00:18:14,560 --> 00:18:18,560
Speaker 1: set for the senators. Did all the senators make those deadlines.

302
00:18:19,400 --> 00:18:21,680
Speaker 1: My colleague and I, Courtney Rosen, who are a White

303
00:18:21,680 --> 00:18:24,320
Speaker 1: House reporter, we took a look at at this and

304
00:18:24,760 --> 00:18:28,320
Speaker 1: spoke to the Senate offices and the commissions that they

305
00:18:28,320 --> 00:18:30,760
Speaker 1: set up to help them that picks before they can

306
00:18:30,760 --> 00:18:33,720
Speaker 1: send him over the White House. We spoke to as

307
00:18:33,720 --> 00:18:36,120
Speaker 1: many people as we could about how they were meeting

308
00:18:36,200 --> 00:18:39,639
Speaker 1: those and found that some states were having difficulty meeting

309
00:18:39,640 --> 00:18:43,000
Speaker 1: these deadlines. At least six states are having difficulty. A

310
00:18:43,200 --> 00:18:46,440
Speaker 1: few states wouldn't tell us if they met the deadlines

311
00:18:46,520 --> 00:18:48,280
Speaker 1: or not, and then there's they're also is a handful

312
00:18:48,280 --> 00:18:50,280
Speaker 1: of states that have met these deadlines, and you know

313
00:18:50,320 --> 00:18:52,920
Speaker 1: a few of those were on the president's first list

314
00:18:53,000 --> 00:18:56,680
Speaker 1: of of nominees. But the reasons why some people aren't

315
00:18:56,720 --> 00:18:59,679
Speaker 1: meeting these deadlines is because the lot of the January

316
00:18:59,720 --> 00:19:03,280
Speaker 1: mis app during the transition also included some other really

317
00:19:03,400 --> 00:19:06,840
Speaker 1: key elements the Biden administration is looking for in judicial nominees,

318
00:19:07,080 --> 00:19:12,320
Speaker 1: like diversity of experienced, racial and ethnic diversity. They're really

319
00:19:12,320 --> 00:19:15,879
Speaker 1: looking for candidates who aren't currently represented on the federal courts,

320
00:19:16,119 --> 00:19:19,400
Speaker 1: and that is challenging for some Senate offices to those

321
00:19:19,400 --> 00:19:22,159
Speaker 1: for nominees who don't fit the mold of not me

322
00:19:22,320 --> 00:19:24,600
Speaker 1: they for in the past. They're looking for new people.

323
00:19:25,160 --> 00:19:27,919
Speaker 1: And you know, we learned in one state in Massachusetts,

324
00:19:28,359 --> 00:19:30,600
Speaker 1: Nancy Gartner, who's a former federal judge who chairs the

325
00:19:30,600 --> 00:19:33,320
Speaker 1: commission there, told us that they couldn't meet the January

326
00:19:33,359 --> 00:19:36,080
Speaker 1: nightte deadline specifically because they were looking for a more

327
00:19:36,600 --> 00:19:39,080
Speaker 1: diverse pool. Some of the other reasons include, you know,

328
00:19:39,200 --> 00:19:42,800
Speaker 1: getting a lot of of applications for for judicial nominations.

329
00:19:42,840 --> 00:19:46,800
Speaker 1: In California, they've received over three hundred judicial applications. They

330
00:19:46,800 --> 00:19:49,840
Speaker 1: have eighteen vacancies in the state at least right now,

331
00:19:50,640 --> 00:19:55,639
Speaker 1: so they have a massive undertaking um But Senators are

332
00:19:56,000 --> 00:19:58,280
Speaker 1: told us that they're working as as quickly as the

333
00:19:58,320 --> 00:20:00,280
Speaker 1: possibly can, and the White House also told us that

334
00:20:00,320 --> 00:20:04,760
Speaker 1: they understand that Senators are working on this and and

335
00:20:04,760 --> 00:20:07,359
Speaker 1: and that it does take time to find these nominees.

336
00:20:07,840 --> 00:20:11,639
Speaker 1: At the first hearings, the focus was on Judge Katangi

337
00:20:11,720 --> 00:20:16,200
Speaker 1: Brown Jackson. Tell us about her. So, Katangi Brown Jackson

338
00:20:16,560 --> 00:20:19,960
Speaker 1: is a judge on the District of DC currently. She

339
00:20:20,040 --> 00:20:22,879
Speaker 1: has public defense experience, and she was one of the

340
00:20:22,920 --> 00:20:26,000
Speaker 1: nominees who was at this first Senate Judiciary Committee hearing.

341
00:20:26,520 --> 00:20:29,440
Speaker 1: She's being talked about as a potential nominee for the

342
00:20:29,600 --> 00:20:33,040
Speaker 1: Supreme Court. There's an vacancy yet, but she's one of

343
00:20:33,080 --> 00:20:36,040
Speaker 1: the people that people think Biden would be likely to nominate.

344
00:20:36,680 --> 00:20:40,000
Speaker 1: She's nominated to Merritt Garland's seat on the DC Circuit,

345
00:20:40,040 --> 00:20:41,919
Speaker 1: and the d C Circuit is seen as it's kind

346
00:20:41,920 --> 00:20:46,240
Speaker 1: of a springboard for Supreme Court nominees. It's considered the

347
00:20:46,240 --> 00:20:49,000
Speaker 1: second highest court in the land. So if she's named

348
00:20:49,040 --> 00:20:53,080
Speaker 1: there and liberals are I'm Justice Bryers and maybe stepped down,

349
00:20:53,400 --> 00:20:55,920
Speaker 1: it would be a quick turnaround if she were nominated

350
00:20:55,960 --> 00:20:58,560
Speaker 1: that seat. But maybe getting a little ahead of ourselves.

351
00:20:58,960 --> 00:21:02,840
Speaker 1: So there was a lot of reculation by conservative activists

352
00:21:02,840 --> 00:21:07,280
Speaker 1: that Republicans might give Jackson a hard time with tough

353
00:21:07,400 --> 00:21:10,840
Speaker 1: questions about her record as a judge and reversals by

354
00:21:10,840 --> 00:21:14,160
Speaker 1: the court she's nominated to sit on. So how did

355
00:21:14,200 --> 00:21:18,639
Speaker 1: it go? So in large part, Republicans did ask tough

356
00:21:18,720 --> 00:21:22,760
Speaker 1: questions and they, you know, try to pin the nominees

357
00:21:22,840 --> 00:21:26,639
Speaker 1: down on how they felt about judicial activism, how they

358
00:21:26,680 --> 00:21:30,959
Speaker 1: felt about controversial matters of law, but they received relatively

359
00:21:31,119 --> 00:21:35,920
Speaker 1: little pushback. There was one offense where Senator Tom Tillis

360
00:21:35,960 --> 00:21:39,320
Speaker 1: pulled up a clip from NSNBC talking about one of

361
00:21:39,359 --> 00:21:43,040
Speaker 1: Katanji Brown Jackson's decisions. Thing was written for a broad audience,

362
00:21:43,119 --> 00:21:45,359
Speaker 1: kind of seeming to make the link Katani Brown Jackson

363
00:21:45,440 --> 00:21:49,840
Speaker 1: potentially auditioning for the Supreme Court. But that was really

364
00:21:49,880 --> 00:21:53,280
Speaker 1: the only instance where we had something that was, you know,

365
00:21:53,359 --> 00:21:58,159
Speaker 1: a little bit more of aggressive exchange between the senators

366
00:21:58,240 --> 00:22:03,040
Speaker 1: and phenomenes. Is the opinion that he was referring to

367
00:22:03,359 --> 00:22:06,399
Speaker 1: the one It evolved from a White House counsel Don McGann,

368
00:22:06,400 --> 00:22:10,520
Speaker 1: and she said, presidents aren't King's. That was the decision

369
00:22:10,640 --> 00:22:13,280
Speaker 1: he was referring to. And I should note also in

370
00:22:13,280 --> 00:22:16,280
Speaker 1: the hearing, Senator Mike Lee of Utah as the Republicans

371
00:22:16,440 --> 00:22:19,840
Speaker 1: also mentioned that same phrasing and that he's said that

372
00:22:19,960 --> 00:22:22,960
Speaker 1: in the past before. All four of the nominees at

373
00:22:22,960 --> 00:22:26,440
Speaker 1: the hearing are people of color. Were there any questions

374
00:22:26,440 --> 00:22:31,639
Speaker 1: involving race? There was, So she and her fellow Circuit

375
00:22:31,680 --> 00:22:34,480
Speaker 1: Court nominee who's nominated to the seventh Circuit were both

376
00:22:34,520 --> 00:22:37,640
Speaker 1: asked how their race they're both black, how their race

377
00:22:37,680 --> 00:22:40,560
Speaker 1: would impact their decision making, if at all, by Senator

378
00:22:40,640 --> 00:22:43,200
Speaker 1: John Cornan of Texas, who is a Republican he was

379
00:22:43,280 --> 00:22:45,520
Speaker 1: making the link that Democrats were making, you know, a

380
00:22:45,720 --> 00:22:48,840
Speaker 1: huge deal lot of svertifying the courts, and both of

381
00:22:48,880 --> 00:22:51,360
Speaker 1: them said that their race would not make an impact

382
00:22:51,440 --> 00:22:55,600
Speaker 1: on their decision making. As I mentioned before the hearing,

383
00:22:55,680 --> 00:23:00,399
Speaker 1: a lot of conservative activists were pointing to this visions

384
00:23:00,440 --> 00:23:04,200
Speaker 1: that Jackson has made that have been reversed on appeal.

385
00:23:04,240 --> 00:23:08,880
Speaker 1: And Carrie Severino, who's the president of the Conservative Judicial

386
00:23:08,920 --> 00:23:11,639
Speaker 1: Crisis Network, told you that she's someone who was a

387
00:23:11,640 --> 00:23:15,000
Speaker 1: record of being regularly overturned by the d C Circuit.

388
00:23:15,440 --> 00:23:18,520
Speaker 1: What is her record as far as reversals and did

389
00:23:18,560 --> 00:23:22,680
Speaker 1: the Republicans question her about her record? The Republicans really

390
00:23:22,760 --> 00:23:27,240
Speaker 1: didn't question her about this reversal record, um, even though

391
00:23:27,240 --> 00:23:30,199
Speaker 1: this is something that I heard beforehand would potentially be

392
00:23:30,320 --> 00:23:33,920
Speaker 1: something that they would ask her about her record. She

393
00:23:34,080 --> 00:23:38,280
Speaker 1: has decided about six hundred cases and it was mentioned

394
00:23:38,320 --> 00:23:41,040
Speaker 1: that the hearing that nine percent of them have not

395
00:23:41,200 --> 00:23:46,280
Speaker 1: been reversed. So that was something that was maybe anticipated

396
00:23:46,359 --> 00:23:48,920
Speaker 1: to be a bigger deal than it ended up being.

397
00:23:49,080 --> 00:23:52,080
Speaker 1: And the questions she did get about that kind of

398
00:23:52,080 --> 00:23:55,520
Speaker 1: throwing her to talk about her record were remotely from Democrats.

399
00:23:55,720 --> 00:23:58,240
Speaker 1: Were you expecting to see a hearing where there was

400
00:23:58,320 --> 00:24:02,800
Speaker 1: some fireworks and a lot of tough, confrontational questioning. I mean,

401
00:24:02,880 --> 00:24:07,920
Speaker 1: I think the hearing was definitely different than a lot

402
00:24:07,960 --> 00:24:11,760
Speaker 1: of people expected it to be, UM in terms of

403
00:24:11,800 --> 00:24:15,160
Speaker 1: the intensity with which some of the questions were being asked.

404
00:24:15,760 --> 00:24:19,320
Speaker 1: It did seem that the answers from both nominees satisfied

405
00:24:19,680 --> 00:24:22,280
Speaker 1: the senators, roscking them on. On both sides of the aisle,

406
00:24:22,359 --> 00:24:27,240
Speaker 1: they were congratulated for their nominations. A few of the

407
00:24:27,440 --> 00:24:31,840
Speaker 1: senators also, Um, you spoke about to Tonty Brown Jackson's

408
00:24:31,880 --> 00:24:35,480
Speaker 1: experience in the U S Sentencing Commission and applauded her

409
00:24:35,520 --> 00:24:38,879
Speaker 1: for that. I think it was kind of a docile

410
00:24:38,960 --> 00:24:41,720
Speaker 1: hearing as far as these hearings go UM, at least

411
00:24:41,760 --> 00:24:46,760
Speaker 1: in my experience. Thanks Madison. That's Bloomberg Law reporter Madison Alder,

412
00:24:47,040 --> 00:24:49,240
Speaker 1: and that's it for this edition of the Bloomberg Law Show.

413
00:24:49,640 --> 00:24:51,720
Speaker 1: Remember you can always get the latest legal news on

414
00:24:51,760 --> 00:24:55,760
Speaker 1: a Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify,

415
00:24:55,880 --> 00:24:59,160
Speaker 1: and wherever you get your favorite podcasts. I'm June Grosso

416
00:24:59,280 --> 00:25:00,720
Speaker 1: and you're listening to Bloomberg