Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: This week, the Supreme Court tackled a case that could
Speaker 1: further weaken the landmark Voting Rights Act. All six conservative
Speaker 1: justices suggested they would back to Arizona ballot restrictions, while
Speaker 1: exploring a possible middle ground on the standard that would
Speaker 1: apply to future lawsuits. Justice Samuel Alito was one of
Speaker 1: those expressing concern that any voting law could be vulnerable
Speaker 1: to attack under Section two of the Act, people who
Speaker 1: are poor and less well educated, on balance, probably will
Speaker 1: find it more difficult to comply with just about every
Speaker 1: voting rule than do people who are more affluent and
Speaker 1: have had the benefit of more education. There was a
Speaker 1: surprisingly candid answer from the lawyer for Arizona's Republican Party
Speaker 1: to a question by Justice Amy Coney, are it what's
Speaker 1: the interest of the Arizona RNC here in keeping say
Speaker 1: the out of uh precinct um voters disqualification rules on
Speaker 1: the books because it puts us at a competitive disadvantage
Speaker 1: relative to Democrats. Politics is a zero sum game. Joining
Speaker 1: me is elections law expert Richard Brofald, Professor, Columbia Law School,
Speaker 1: rich tell us the significance of the Voting Rights Act
Speaker 1: symbolically and legally so the Voting Rights Act initially dates
Speaker 1: back to the nine and it was a landmark effort
Speaker 1: on the part of the federal government to really, finally,
Speaker 1: under a hundred years of serious voting discrimination, effectively kept
Speaker 1: huge fractions of the black population and other minorities from voting.
Speaker 1: There was a major step forward and actually making the
Speaker 1: right to vote available to everybody. It was a very
Speaker 1: significant amendment. Addituate in two, and that's really what the
Speaker 1: argument dealt with, known as Section two, which basically said
Speaker 1: that certain kinds of voting rules that have the effect
Speaker 1: of discriminating against minorities, even if they're not inclearly intended
Speaker 1: to do so, can also be challenged and struck down
Speaker 1: where they have the aspect of denying minorities equal opportunities
Speaker 1: participate in the political process. What's going on now and
Speaker 1: really for the last ten years or more is kind
Speaker 1: of the return of what people call vote denial. The
Speaker 1: efforts to adopt laws which, although neutral on their face,
Speaker 1: actually make it harder for people to vote, and in
Speaker 1: particular make it harder for minorities to vote. Things like
Speaker 1: voter or I D as one example of this maybe
Speaker 1: what that's gotten the most attention, but there are other mechanisms.
Speaker 1: And the big question the same court has not addressed
Speaker 1: until now is what's the standard of proof? What needs
Speaker 1: to be shown in order for plaintiffs who are challenging
Speaker 1: one of these rules to say that this kind of
Speaker 1: vote denial mechanism which will fare in its face or
Speaker 1: neutraliance face it triggers a violation of Section two. What
Speaker 1: did you hear from the justices? There's a lot of
Speaker 1: concern that the standard adopted by the ninth sirt it simptis,
Speaker 1: made it too easy for pointiffs to bring cases or
Speaker 1: more of the point, made it too easy to challenge
Speaker 1: pretty standard or widespread voting rules and kind of made
Speaker 1: it too easy for minority pointiffs tojo win. I should
Speaker 1: say that in this case was actually not brought by
Speaker 1: minority group, who was brought by the Democratic Party. The
Speaker 1: Justices pushed Arizona's lawyer about the dividing line between restrictions
Speaker 1: that would be lawful and those that wouldn't be, and
Speaker 1: so he said it was lawful to block voting on Sundays,
Speaker 1: but not to force people to travel to country clubs
Speaker 1: to vote. What did you glean from his responses? I
Speaker 1: think that some of the argument of the challengers, they
Speaker 1: were going pretty far to make the argument that spatially
Speaker 1: neutral laws that basically that the procedures for voting simply
Speaker 1: could not be challenged under Section two. And I think
Speaker 1: these examples were designed to sort of push them to say,
Speaker 1: do you really mean that? Aren't there some situations where,
Speaker 1: given what the a G. Of Arizona acknowledge was that
Speaker 1: ground demographic considerations that given those, isn't it the case
Speaker 1: at least sometimes a law which appears to be neutral
Speaker 1: on at spaces And I one of the examples that
Speaker 1: Justice can raised a couple of times with extremely short
Speaker 1: voting hours so that people who work basically couldn't get
Speaker 1: to vote, or again the locations of polling places which
Speaker 1: were going to be very very far from any man
Speaker 1: already neighborhoods that a blanket exclusion of the so called time,
Speaker 1: place and manner rules for voting just would not survive.
Speaker 1: That that just needs to be untenable. And the question
Speaker 1: that you've heard several of the justices, really both conservative
Speaker 1: and liberal justices raising, was how do you distinguish between
Speaker 1: rules that simply, quote unquote make it inconvenient to vote
Speaker 1: and rules that effectively that seriously burdened the right to vote.
Speaker 1: And that I think was kind of one of the
Speaker 1: questions that was underlying a lot of this. Had you
Speaker 1: come up with a standard that allows the states to
Speaker 1: adopt some rules, because almost any rule is going to
Speaker 1: make it hard for somebody to vote. The voting hours
Speaker 1: are from six am to nine pm. It's gonna be
Speaker 1: hard from people who want PM. How do you distinguish
Speaker 1: that from rules that operate with the effect though it
Speaker 1: maybe even the intent of making it very hard to
Speaker 1: particular groups of people, then Ay voters to vote. Rich
Speaker 1: A lot of people were watching the Chief Justice during
Speaker 1: these oral arguments, in part because he wrote the majority
Speaker 1: opinion in Shelby County versus Holder, which significantly cut back
Speaker 1: Voting Rights Act in Did you hear anything from him
Speaker 1: that struck you? I think what we heard from him,
Speaker 1: and this maybe where the court winds up going is
Speaker 1: he was unwilling to do us completely rule out Learning
Speaker 1: Rights Act coverage. As the lawyer's Republican party one, that
Speaker 1: position was pretty much the courts getting to hear these cases,
Speaker 1: he seemed unsympathetic to that. On the other hand, he
Speaker 1: also seemed unsympathetic to the rulings of the courts below
Speaker 1: on the two particular issues being challenged, and maybe therefore
Speaker 1: coming up with a standard in which the point is
Speaker 1: have to prove a lot more than just disparate impact.
Speaker 1: And he basically, you know, was asking one of the
Speaker 1: laws that have been challenged was one that prohibited you know,
Speaker 1: third parties from collecting and returning absentee ballots third paras
Speaker 1: other than family members, in other words, like community groups,
Speaker 1: voting rights groups, the political party. This is known pejoratively
Speaker 1: as ballot harvesting. And he basically pointed out that, you know,
Speaker 1: teen years ago of Bipartisan Commission had said that, you know,
Speaker 1: this raised possibilities of fraud and coercion. And he basically said,
Speaker 1: you know that isn't this kind of rule, the kind
Speaker 1: of rule which is not inherently discriminatory but in fact
Speaker 1: has a good justification for it. So I think he
Speaker 1: was looking for ways and justice Kavanaugh asked similar questions
Speaker 1: things which have legitimate justifications or things that are in
Speaker 1: widespread use, and he stays, have rules like this shouldn't
Speaker 1: we take that into account in judging whether or not
Speaker 1: a particular rule violates the voting rights? At most observers
Speaker 1: seem to think there is enough support from the Conservatives
Speaker 1: for these voting restrictions. Do you agree with that? And
Speaker 1: what about the standard that the court uses? The serving
Speaker 1: vote is always very hard to predict. I think you're
Speaker 1: going to see some kind of intermediate standard, but one
Speaker 1: in which the point is, in this case lose. In
Speaker 1: other words, they're not going to go as far the
Speaker 1: most extreme positions of either the Republican Party lawyer or
Speaker 1: what had been the position of the Trump administration, which
Speaker 1: is to say that basically you can't use Section two
Speaker 1: of the voting right back to challenge these basic rules
Speaker 1: that govern the voting process. I don't think they're going
Speaker 1: to go that far, But I do think they're going
Speaker 1: to use a standard which requires the plaintiffs to prove
Speaker 1: more not just that there is a racial disproportion and
Speaker 1: how that certain rules affect minority voters more than non
Speaker 1: minority voters, but that the impact has to be substantial
Speaker 1: and may be part of a broader effort to make
Speaker 1: it harder priority voters to vote. So you know, I
Speaker 1: think a number of justices we're looking for what they
Speaker 1: might consider to be a middle ground of saying, yes,
Speaker 1: suits like this to go forward, but maybe with a
Speaker 1: higher standard proof or plaintiffs. And the question is how
Speaker 1: high is that standard going to be and what will
Speaker 1: that result in? What kinds of voting restrictions will be
Speaker 1: protected from challenge, which is important at a time where
Speaker 1: it seems like a lot of states are moving to
Speaker 1: adopt more restrictive rules on voting. The Brennan Center says
Speaker 1: that legislators introduced more than a hundred and sixty five
Speaker 1: bills this year to restrict voting access. That's more than
Speaker 1: four times the number from a year ago. So if
Speaker 1: those are challenged, or when those are challenged, the rules
Speaker 1: that the Supreme Court sets that in this case will
Speaker 1: be determinative. Well, send me be very significant. Sentently, what
Speaker 1: the Surreme Court does in this case will be extremely
Speaker 1: important for anybody bringing a challenge based on a racially
Speaker 1: discriminatory impact. There might be other arguments, some of these
Speaker 1: rules could be challenged on on more pure right to
Speaker 1: vote ounds or other considerations. Well, this case, well, I
Speaker 1: think set the standards for challenging newly restrictive voting rules
Speaker 1: on grounds of racial discrimination. You know, this is really
Speaker 1: the Supreme Court's first time looking at how to apply
Speaker 1: the Statute to these kinds of lawsuits since the new
Speaker 1: wave of restricting voting or tightening up on voting rules
Speaker 1: began about a dozen years ago. Thanks for being on
Speaker 1: the show, rich that's Professor Richard Brofald of Columbia Law
Speaker 1: School coming up next on the Bloomberg Law Show. Kind
Speaker 1: of high school disciplined cheerleader for a profane snapchat. I'm
Speaker 1: June Grosso and you're listening to Bloomberg. About forty judges
Speaker 1: have announced they'll take senior status or retire since the election,
Speaker 1: adding to about fifty federal judicial vacancies that existed before
Speaker 1: the election. With a narrow Democratic majority in the Senate
Speaker 1: and no sixty vote threshold for judicial dominees, Biden has
Speaker 1: an opportunity to make an impact on the courts, starting
Speaker 1: with the Second Circuit, which it now appears he can
Speaker 1: flip back to a Democratic appointed majority. Joining me is
Speaker 1: Professor Carl to Bias of the University of Richmond Law School.
Speaker 1: Carl tell us what senior status means for judges and
Speaker 1: who's taking it well. Senior status is a form of
Speaker 1: semi retirement. When judges satisfy the rule of eight when
Speaker 1: they're sixty five and have fifteen years of experience, they
Speaker 1: can take that status. They usually have a half case
Speaker 1: load UM and they continue to receive the kolas that
Speaker 1: all federal judges have. And so it's a great opportunity
Speaker 1: for the judges because you retain your experience. But the
Speaker 1: court then gets another active judge and so that's extremely
Speaker 1: valuable UM and brings new people into the system and
Speaker 1: gives the courts more resource is which many of them needs.
Speaker 1: The most recent one is Judge Peter Hall on the
Speaker 1: Second Circuit, who last Thirsty as soon senior status and
Speaker 1: so that's important because he's the third judge on that
Speaker 1: court who assumed senior status and means that there will
Speaker 1: be more people on the court appointed by democratic presidents
Speaker 1: than Republican presidents. One Judge Hall is replaced by a
Speaker 1: Biden appointee, so Biden has an opportunity to flip the
Speaker 1: court back to a democratically appointed majority, which Trump was
Speaker 1: able to flip during his time. It's playing the importance
Speaker 1: of the Second Circuit, which is based in Manhattan. Well,
Speaker 1: it's the business center of certainly the United States and
Speaker 1: probably the world. There's all Street and there's so much
Speaker 1: commercial and industry in business yet is transacted there. And
Speaker 1: it gets many other very important cases. I mean, think
Speaker 1: about some of those involving President Trump and al Chopo
Speaker 1: and all kinds of international and nationally important cases. And
Speaker 1: so it's a story court that has a long tradition.
Speaker 1: Remember sort of good Marshal served on that court, learned
Speaker 1: hand served on that court. Henry Friendly, many great judges
Speaker 1: in the pantheon of federal judges. It's a story court
Speaker 1: and people know that. Tell us how many circuit courts
Speaker 1: Trump flipped three, the third which includes Delaware, New Jersey
Speaker 1: in Pennsylvania, and the eleven, which is Alabama, Georgia in Florida.
Speaker 1: So when the circuits flipped, have we seen a difference
Speaker 1: in the app Indians that are coming out of those circuits? Yes,
Speaker 1: to some extent, and a number of public interest groups
Speaker 1: and others are tracking those. Probably most striking is in
Speaker 1: the eleven because I believe there's six judges which is
Speaker 1: a majority on that court appointed by President Trump, and
Speaker 1: that made a big difference on the fell in franchisement
Speaker 1: issue that came from Florida, and all the Trump appointees
Speaker 1: as well as the Chief Judge voted in a way
Speaker 1: that was advantageous to Trump and probably meant a difference
Speaker 1: in his ability to capture Florida in the presidential election.
Speaker 1: And so that's one of the most important examples. But
Speaker 1: there are a number of others. Of course, at the
Speaker 1: Supreme Court will see too that the Court is issuing
Speaker 1: more conservative rulings in certain areas. You only need a
Speaker 1: majority vote to get an appellate Court judge. Does this
Speaker 1: mean that by can put anyone he wants on these courts? No,
Speaker 1: I don't think so. And you do have a split
Speaker 1: and there are a number of Senators who are relatively
Speaker 1: moderate uh and um. Unless you have all fifty of
Speaker 1: those uh and the Republicans hold together, then it will
Speaker 1: be difficult to name people who are outside of the mainstream,
Speaker 1: as you will. But Biden hasn't said that he intends
Speaker 1: to nominate people who are outside in the mainstream, but
Speaker 1: he has said he's looking for diversity in terms of ethnicity,
Speaker 1: gender and LGBT people, sexual orientation, but also experiential diversity.
Speaker 1: Saying there may be too many prosecutors and too many
Speaker 1: big firm and um other corporate type attorneys on the
Speaker 1: federal bench. Uh. And so the White House Council sent
Speaker 1: a letter to Senators about sending forward their recommendations and
Speaker 1: mentioned all of those facets of diversity, and so I
Speaker 1: think that will be important. And he also promised to
Speaker 1: make his first appointment to the Supreme Court of Black woman.
Speaker 1: The Federalist Society was behind the lists of judges for Trump.
Speaker 1: Who is doing that for Biden if anyone well? Also
Speaker 1: don't forget that Leonard Leo, the executive vice president of
Speaker 1: the Federalist Society, was Trump's legal advisor through four years
Speaker 1: at the White House, and he was instrumental as well
Speaker 1: as Don McGann. The first White House Council in packing
Speaker 1: the appeals courts was extremely conservative judges fifty four, setting
Speaker 1: some records in the first and second year. So that's important.
Speaker 1: I think in this administration there are other groups like
Speaker 1: American Constitution Society and Demand Justice and other groups in Washington,
Speaker 1: UM who have been very important and have sent lists
Speaker 1: actually to the White House. But I don't think you
Speaker 1: will see the same kind of influence from them, even
Speaker 1: though it will be important to the White Husband. I'm
Speaker 1: sure the White House will consider those lists. But also
Speaker 1: at the district level, I think we'll see something fairly traditional.
Speaker 1: The White House Council asked for three names for each vacancy,
Speaker 1: and that be done swiftly. Remembering that in the Obama
Speaker 1: first year selection process moves slowly, the White House is
Speaker 1: moving as quickly as possible, in saying within forty five
Speaker 1: days of an opening, the Senators should have three recommendations
Speaker 1: to the White House, and so I think they will
Speaker 1: consult both at the appellate and district level, although there
Speaker 1: may be more White House control over the appellate nominees.
Speaker 1: To go back, there are presently five appellate court vacancies
Speaker 1: and five future vacancies, and on the district level sixty
Speaker 1: present vacancies in twenty one or so future vacancies, so
Speaker 1: there's some opportunities there. How do you know about a
Speaker 1: future vacancy on an appellate court? The judge will announce,
Speaker 1: will send a letter to the President saying I intend
Speaker 1: to soon senior status, and then the Administrative of the
Speaker 1: US Courts will post that and you can see that online.
Speaker 1: Um and so that's the way to tell, and they
Speaker 1: list out they have a listing of future vacancies. What's
Speaker 1: the possibility that Joe Biden could flip the circuit courts
Speaker 1: back that Trump flipped. There's some possibility. It would depend
Speaker 1: in those two appeals courts, the third and the eleventh
Speaker 1: that we were talking about, on some more judges assuming
Speaker 1: senior status for retiring, and that hasn't happened yet and
Speaker 1: there aren't any present they can seeze on either of
Speaker 1: those courts, but those are possibilities, um, And there's probably
Speaker 1: some other courts. For example, Trump appointed ten people to
Speaker 1: the ninth circuit Um, which is a large number, but
Speaker 1: of course there twenty nine active judges on that court.
Speaker 1: One person has said she would take senior status, but
Speaker 1: there may be others there because I think if you
Speaker 1: look at senior eligible people, people who could take senior status,
Speaker 1: they're a number of judges on that court, principally whom
Speaker 1: President Clinton appointed who could soon senior status. But in
Speaker 1: order to flip a circuit, you'd need a Republican appointed
Speaker 1: judge to take senior status. Do judges on appellate courts
Speaker 1: wait until a president of their party is in office. Again,
Speaker 1: remembering that's a pretty crude measure when you're talking about
Speaker 1: who appointed the person and someone who served for twenty years. Um. Yeah,
Speaker 1: but people do use that measure, so yes, but we'll see, Um,
Speaker 1: it depends. And sometimes I don't think that's as much
Speaker 1: of a custom as at the Supreme Court of trying
Speaker 1: to take senior status or resign in the term of
Speaker 1: the president of the same party as appointed you. Um.
Speaker 1: And you you often see that. I mean, for example,
Speaker 1: Judge Hall was a Republican appointee to the Second Circuit. Uh.
Speaker 1: And here we are in a democratic administration. What do
Speaker 1: you consider a conservative judge? Well, that's a good question,
Speaker 1: and I think the federal society has been vigorously debating
Speaker 1: that as recently as according to reports from your reporters. Uh.
Speaker 1: And I think there are a number of ways of
Speaker 1: defining that. But I think for me and others, talk
Speaker 1: about ideological conservatism. Uh. And if you think of the
Speaker 1: culture war cases, for example, abortion and immigration and voting
Speaker 1: rights and other issues that are very much hot button issues,
Speaker 1: I think that's one way to look at it. But
Speaker 1: what I think this debate in the federal society is
Speaker 1: about is the notion of originalism and a conservative view
Speaker 1: of the constitution. UH. And the strain comes in with
Speaker 1: as they were debating on Friday, what do you do
Speaker 1: about the assault insurrection on the Capitol on January six?
Speaker 1: And think about the Trump appointees who rejected his false
Speaker 1: allegations of election fraud. And so there's some tension there
Speaker 1: about you know, having certain political goals. These are visa judiciary,
Speaker 1: UH and being true to your principles about originalism, if
Speaker 1: you will, And that needs to be worked through. And
Speaker 1: I think the same debate is going on in the
Speaker 1: Republican Party and so I think that's what you're seeing.
Speaker 1: And so those tensions can all be resolved, and so
Speaker 1: we'll see how they all all play out. Besides the
Speaker 1: second circuit, which other circuits might come up as possibilities
Speaker 1: for Biden to flip? I think the other two I
Speaker 1: was talking about. Because he flipped those two, he also
Speaker 1: reinforced the size of the Republican majorities and a number
Speaker 1: of circuits. For example, of fifth, I think he got
Speaker 1: tad four or five appointments, three in Texas and the
Speaker 1: eighth and the seventh. Number of those he added to
Speaker 1: the Republican majorities and significantly, which will make it more difficult.
Speaker 1: I mean, I think Biden would probably need two terms
Speaker 1: to change a number of those courts. Here's one more
Speaker 1: thing about the district courts. Um, there was a hearing
Speaker 1: in the House Judiciary Subcommittee about ten days ago on
Speaker 1: a Judgeship's bill which would embody the Judicial Conference recommendations
Speaker 1: based on conservative estimates of case and workloads, which calls
Speaker 1: for sixty five new district judges and five new Ninth
Speaker 1: Circuit judges. Uh, and almost everybody agreed. It was bipartisan
Speaker 1: agreement that the courts need the judges to deliver justice.
Speaker 1: But how what that will look like? We'll see. Um,
Speaker 1: I think something might happen. But the problem is, of
Speaker 1: course the party doesn't have the White House won't agree
Speaker 1: because they feel like they're giving judges to the opposite party.
Speaker 1: So how big would that make the Ninth Circuit, Well,
Speaker 1: it would make it large. It would be thirty three
Speaker 1: active judge using then of course, twenty years. So Senior Judge.
Speaker 1: Thanks Carl. That's Professor Carl Tobias at the University of
Speaker 1: Richmond Law School. And that's it for this edition of
Speaker 1: the Bloomberg Law Show. Remember you can always at the
Speaker 1: latest legal news on our Bloomberg Lawn podcast. You can
Speaker 1: find them on Apple Podcasts, Spotify, and at www dot
Speaker 1: bloomberg dot com slash podcast slash Law. I'm June gross O.
Speaker 1: Thanks so much for listening, and please June into the
Speaker 1: Bloomberg Law Show every week night at ten pm Eastern,
Speaker 1: right here on Bloomberg Radio.