1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:09,160 --> 00:00:13,680 Speaker 1: You can still listen to Collaine Maxwell's Ted Talk from 3 00:00:13,680 --> 00:00:17,200 Speaker 1: She's engaging as she expresses her concerns for the ocean 4 00:00:18,000 --> 00:00:20,360 Speaker 1: off I was. I went down into the deep, and 5 00:00:20,400 --> 00:00:23,520 Speaker 1: I went down to over fift hundred feet and at 6 00:00:24,079 --> 00:00:26,600 Speaker 1: dred feet, I switched on the lights, hoping to see 7 00:00:26,640 --> 00:00:30,120 Speaker 1: a new mythical sea creature, but in fact, what I 8 00:00:30,160 --> 00:00:37,000 Speaker 1: saw was a plastic hanger. I was so absolutely devastated 9 00:00:37,080 --> 00:00:39,159 Speaker 1: that it was at that moment that I realized that 10 00:00:39,200 --> 00:00:41,159 Speaker 1: I was really going to dedicate the rest of my 11 00:00:41,240 --> 00:00:46,480 Speaker 1: life to taking an involvement with and bringing an education 12 00:00:46,520 --> 00:00:51,879 Speaker 1: around the ocean. But apparently Maxwell was not so devastated 13 00:00:51,920 --> 00:00:56,120 Speaker 1: to see underage girls being sexually abused by Jeffrey Epstein. 14 00:00:56,400 --> 00:01:00,200 Speaker 1: According to the testimony of alleged victims at Maxwell's ex 15 00:01:00,320 --> 00:01:03,880 Speaker 1: trafficking trial, for two weeks, jurors have been immersed in 16 00:01:03,880 --> 00:01:08,280 Speaker 1: the luxurious and lascivious world of Epstein and Maxwell as 17 00:01:08,319 --> 00:01:11,600 Speaker 1: prosecutors try to show them how young girls were drawn 18 00:01:11,640 --> 00:01:14,520 Speaker 1: in by the pair and then trapped in a cycle 19 00:01:14,560 --> 00:01:19,240 Speaker 1: of sexual abuse. My guest, his former federal prosecutor Jessica Roth, 20 00:01:19,640 --> 00:01:23,759 Speaker 1: a professor at Cardozo Law School. Is the broad question 21 00:01:23,840 --> 00:01:27,120 Speaker 1: for the juries sort of whether they were partners in 22 00:01:27,240 --> 00:01:30,600 Speaker 1: crime or whether she's being used as a scapegoat for 23 00:01:30,720 --> 00:01:35,319 Speaker 1: his crime. So the defense seems to be pursuing a 24 00:01:35,360 --> 00:01:38,399 Speaker 1: defense strategy or theory of the case that she is 25 00:01:38,440 --> 00:01:42,759 Speaker 1: there is a scapegoat for Jeffrey Epstein because he killed 26 00:01:42,840 --> 00:01:45,720 Speaker 1: himself and did not go to trial, and so therefore 27 00:01:45,880 --> 00:01:49,120 Speaker 1: she is essentially a proxy through which the victims can 28 00:01:49,200 --> 00:01:52,520 Speaker 1: have their day in court. But I don't think that 29 00:01:52,600 --> 00:01:56,400 Speaker 1: the prosecution sees it through that lens. The prosecution is 30 00:01:56,440 --> 00:02:00,440 Speaker 1: presenting the case that, regardless of what mayor happened to 31 00:02:00,520 --> 00:02:05,760 Speaker 1: Jeffrey Epstein, that Maxwell is independently guilty and culpable and 32 00:02:05,920 --> 00:02:11,240 Speaker 1: is deserving of prosecution and conviction. How are the prosecutors 33 00:02:11,360 --> 00:02:15,720 Speaker 1: building their case against Maxwell? Well, the most important evidence 34 00:02:15,760 --> 00:02:21,240 Speaker 1: is the testimony of the victims who have testified in 35 00:02:21,400 --> 00:02:26,160 Speaker 1: detail about their abuse and the involvement of Maxwell in 36 00:02:26,200 --> 00:02:30,560 Speaker 1: that abuse, including the roles she played in communicating with 37 00:02:30,600 --> 00:02:34,440 Speaker 1: them to initially establish a relationship and in some cases 38 00:02:34,480 --> 00:02:37,480 Speaker 1: to set up the massages that were sexual in nature 39 00:02:37,720 --> 00:02:42,720 Speaker 1: that they performed. On Epstein. So their testimony is really critical, 40 00:02:43,200 --> 00:02:46,519 Speaker 1: and that's why you see the defense attorneys going after 41 00:02:47,000 --> 00:02:51,040 Speaker 1: them on cross examination and after their credibility so aggressively. 42 00:02:51,440 --> 00:02:55,760 Speaker 1: But the prosecution is also relying on testimony from people 43 00:02:55,800 --> 00:03:00,920 Speaker 1: who worked for Epstein, like his pilot, like his household staff, 44 00:03:01,160 --> 00:03:06,440 Speaker 1: to establish the relationship between Epstein and Maxwell, and how 45 00:03:06,520 --> 00:03:12,920 Speaker 1: close it was, how integraly intertwined she was with Epstein's affairs, 46 00:03:12,919 --> 00:03:16,840 Speaker 1: to to corroborate the account of the victims in so 47 00:03:17,080 --> 00:03:21,080 Speaker 1: far as it makes it more likely that Maxwell was 48 00:03:21,120 --> 00:03:24,880 Speaker 1: in fact present at times when Epstein would have been 49 00:03:25,240 --> 00:03:28,520 Speaker 1: meeting the victims and abusing the victims, and just so 50 00:03:28,720 --> 00:03:32,520 Speaker 1: shoring up the narrative that she was a critical player 51 00:03:32,760 --> 00:03:36,560 Speaker 1: in Epstein's life in many different ways, but particularly in 52 00:03:36,800 --> 00:03:41,120 Speaker 1: his residential life, managing his homes and being involved in 53 00:03:41,560 --> 00:03:44,400 Speaker 1: the running of the households where so much of the 54 00:03:44,440 --> 00:03:48,320 Speaker 1: abuse allegedly occurred. The alleged victims have really painted a 55 00:03:48,440 --> 00:03:53,160 Speaker 1: picture of Maxwell befriending them and luring them in. Kate said, 56 00:03:53,200 --> 00:03:57,800 Speaker 1: after her first sexual encounter with Epstein, Maxwell said, did 57 00:03:57,840 --> 00:04:00,400 Speaker 1: you have fun. You're such a good girl, and I'm 58 00:04:00,440 --> 00:04:03,400 Speaker 1: so happy you are able to come the words she 59 00:04:03,600 --> 00:04:08,520 Speaker 1: chose seemed to fit the prosecution's case precisely. There has 60 00:04:08,600 --> 00:04:12,800 Speaker 1: been an extraordinary level of detail in the victims testimony, 61 00:04:13,000 --> 00:04:17,279 Speaker 1: and so much of it is consistent between the victim 62 00:04:17,440 --> 00:04:21,400 Speaker 1: witnesses in terms of describing the role that backed well played. 63 00:04:21,720 --> 00:04:25,320 Speaker 1: So the jury is going to be left to decide 64 00:04:25,360 --> 00:04:29,640 Speaker 1: whether they believe the witnesses about not only the abuse 65 00:04:29,720 --> 00:04:34,000 Speaker 1: that they suffered, but Maxwell's role in it, and the 66 00:04:34,160 --> 00:04:36,520 Speaker 1: level of detail I think is something that is going 67 00:04:36,520 --> 00:04:39,919 Speaker 1: a weigh heavily in the jury's evaluation of the testimony. 68 00:04:40,320 --> 00:04:44,719 Speaker 1: Has the defense made some inroads by showing inconsistencies in 69 00:04:44,800 --> 00:04:48,160 Speaker 1: some of the alleged victims statements were a trial, they 70 00:04:48,160 --> 00:04:53,080 Speaker 1: were including Maxwell being present during sexual encounters with Epstein, 71 00:04:53,520 --> 00:04:56,400 Speaker 1: but she was not included in their statements to the FBI. 72 00:04:56,920 --> 00:04:59,719 Speaker 1: So it does seem that there were some inroads made 73 00:04:59,839 --> 00:05:02,760 Speaker 1: in in teaching the credibility of some of the witnesses 74 00:05:02,800 --> 00:05:07,520 Speaker 1: by pointing to apparent inconsistencies between their testimony on the 75 00:05:07,600 --> 00:05:12,200 Speaker 1: stand and their previous statements. We don't know precisely what 76 00:05:12,440 --> 00:05:16,040 Speaker 1: they told the FBI agents, for example, in those prior statements. 77 00:05:16,080 --> 00:05:18,920 Speaker 1: I believe some of the witnesses pushed back a bit 78 00:05:19,200 --> 00:05:22,400 Speaker 1: and did not acknowledge that they necessarily had made a 79 00:05:22,440 --> 00:05:26,360 Speaker 1: different statement. For with the witnesses suggesting perhaps the FBI 80 00:05:26,440 --> 00:05:29,720 Speaker 1: agent got the details wrong in the agents report, and 81 00:05:29,720 --> 00:05:33,960 Speaker 1: that's certainly possible, but even if it is true, that 82 00:05:34,000 --> 00:05:39,080 Speaker 1: doesn't necessarily destroyed the witnesses credibility. It is often the 83 00:05:39,120 --> 00:05:42,800 Speaker 1: case that witnesses give accounts that are different sometimes and 84 00:05:42,880 --> 00:05:47,360 Speaker 1: fairly significant detailed when they tell the story multiple times. Um, 85 00:05:47,480 --> 00:05:50,800 Speaker 1: that's just an aspect of human memory and how human 86 00:05:50,839 --> 00:05:54,520 Speaker 1: beings tell the story. And I think anybody who's tried 87 00:05:54,560 --> 00:05:57,080 Speaker 1: a case would tell you that it is more often 88 00:05:57,080 --> 00:06:01,160 Speaker 1: than not their experience that people give different details at 89 00:06:01,200 --> 00:06:03,440 Speaker 1: different times when they tell a story, And it doesn't 90 00:06:03,440 --> 00:06:06,839 Speaker 1: mean they're not being truthful. It can also matter what 91 00:06:06,920 --> 00:06:11,560 Speaker 1: the context was when somebody told a story on one 92 00:06:11,560 --> 00:06:14,360 Speaker 1: occasion versus another. And so, for example, I believe one 93 00:06:14,400 --> 00:06:19,240 Speaker 1: of the victims who testified offered, by way of possible 94 00:06:19,279 --> 00:06:23,600 Speaker 1: explanation for any inconsistency, that she wasn't being asked directly 95 00:06:23,640 --> 00:06:28,479 Speaker 1: about Maxwell's involvement during a previous interview, whereas now during 96 00:06:28,520 --> 00:06:32,960 Speaker 1: this trial she was being asked about that directly so 97 00:06:33,200 --> 00:06:38,520 Speaker 1: on redirect or um in closing argument. It's often possible 98 00:06:38,680 --> 00:06:43,200 Speaker 1: to provide that kind of context to a jury UM 99 00:06:43,279 --> 00:06:47,000 Speaker 1: and therefore diffuse what might initially seem to be a 100 00:06:47,120 --> 00:06:51,560 Speaker 1: very significant line of impeachment on cross examination directed it 101 00:06:51,680 --> 00:06:56,680 Speaker 1: inconsistent statements. I've heard so many cases of multimillion dollars 102 00:06:56,720 --> 00:07:00,320 Speaker 1: settlements that it doesn't affect me that these women got 103 00:07:00,520 --> 00:07:04,640 Speaker 1: multimillion dollar payouts from a settlement fund set up by 104 00:07:04,720 --> 00:07:11,840 Speaker 1: the Epstein estate. But the defense really played on that well. 105 00:07:11,880 --> 00:07:15,200 Speaker 1: It certainly seems that the defense is pushing as one 106 00:07:15,360 --> 00:07:18,040 Speaker 1: line of arguments that the witnesses are not to be 107 00:07:18,040 --> 00:07:23,400 Speaker 1: believed because they have a financial motive that is causing 108 00:07:23,440 --> 00:07:28,720 Speaker 1: them to testify about the abuse and Maxwell's involvement in it. 109 00:07:28,720 --> 00:07:32,760 Speaker 1: It's not clear how much that's going to carry sway 110 00:07:32,840 --> 00:07:36,840 Speaker 1: with the jury. UM. Was also not entirely clear is 111 00:07:36,960 --> 00:07:42,080 Speaker 1: how that financial motive ties into Maxwell directly. In other words, 112 00:07:42,520 --> 00:07:46,000 Speaker 1: what is the defense going to say in closing about 113 00:07:46,040 --> 00:07:52,360 Speaker 1: how the victims are incentivized to testify about Maxwell's involvement, specifically, 114 00:07:52,800 --> 00:07:55,640 Speaker 1: UM if they have already received the payment from the 115 00:07:55,760 --> 00:07:59,840 Speaker 1: fund created for Epstein's victims. The defense may have more 116 00:08:00,080 --> 00:08:03,320 Speaker 1: say about that, about some kind of additional financial incentive 117 00:08:03,920 --> 00:08:07,080 Speaker 1: um that they argue that victims have by virtue of 118 00:08:07,160 --> 00:08:10,640 Speaker 1: naming Maxwell. But it's not entirely entirely clear to me 119 00:08:10,760 --> 00:08:13,480 Speaker 1: yet in what direction the defense is going to take 120 00:08:13,520 --> 00:08:17,080 Speaker 1: that line of arguments. Might the jury be prejudiced against 121 00:08:17,200 --> 00:08:22,280 Speaker 1: Maxwell because of the descriptions of this opulent lifestyle, the yachts, 122 00:08:22,360 --> 00:08:26,880 Speaker 1: the private jets, the sumptuous surroundings. In theory, it could, 123 00:08:27,080 --> 00:08:29,520 Speaker 1: and I would imagine that the judge would instruct the 124 00:08:29,600 --> 00:08:33,600 Speaker 1: jury at the defense's request, not to consider wealth or 125 00:08:33,679 --> 00:08:38,520 Speaker 1: the lavishness of one's lifestyle against Maxwell. But it's clearly 126 00:08:38,640 --> 00:08:42,520 Speaker 1: relevant to the government's theory of the case to establish 127 00:08:42,640 --> 00:08:46,640 Speaker 1: what that lifestyle was. It tells the story of how 128 00:08:46,679 --> 00:08:50,400 Speaker 1: this abuse allegedly occurred. Because, of course, one of the 129 00:08:50,440 --> 00:08:54,280 Speaker 1: ways in which Maxwell and f being allegedly lured in 130 00:08:54,640 --> 00:08:58,559 Speaker 1: the victims was to offer them lavish gifts and access 131 00:08:58,600 --> 00:09:01,719 Speaker 1: to this lavish lifestyle Sile, and so it would be 132 00:09:01,800 --> 00:09:05,400 Speaker 1: pretty difficult to tell that story and explain to the 133 00:09:05,480 --> 00:09:10,480 Speaker 1: jury how this scheme allegedly occurred without providing at least 134 00:09:10,559 --> 00:09:13,320 Speaker 1: some of those details. I'm wondering if any of the 135 00:09:13,440 --> 00:09:17,040 Speaker 1: jurors might fault the victims, which you shouldn't do. But 136 00:09:17,160 --> 00:09:20,800 Speaker 1: my fault the victims because they were all paid by 137 00:09:20,920 --> 00:09:25,960 Speaker 1: Epstein in different ways, and some of their contacts with Epstein. 138 00:09:26,040 --> 00:09:28,680 Speaker 1: One of the victims, the contacts lasted from the age 139 00:09:28,720 --> 00:09:32,800 Speaker 1: of seventeen to the age of thirty. And I'm wondering 140 00:09:32,880 --> 00:09:36,200 Speaker 1: if that might, you know, play in the minds of 141 00:09:36,440 --> 00:09:40,440 Speaker 1: some of the jurism. I think that is something that 142 00:09:40,480 --> 00:09:44,160 Speaker 1: the prosecution would be thinking about as a concern. UM. 143 00:09:44,200 --> 00:09:47,079 Speaker 1: I believe the prosecution put on an expert witness to 144 00:09:47,120 --> 00:09:50,679 Speaker 1: address some of the psychological dynamics involved in sexual abuse, 145 00:09:50,880 --> 00:09:54,120 Speaker 1: to address some of those issues, and to explain to 146 00:09:54,280 --> 00:09:56,760 Speaker 1: a jury that may not otherwise be familiar with some 147 00:09:56,880 --> 00:10:00,360 Speaker 1: of the dynamics. UM, why, for example, a victim might 148 00:10:00,400 --> 00:10:04,680 Speaker 1: remain in communication and contact with their abuser. UM. Certainly 149 00:10:04,760 --> 00:10:11,080 Speaker 1: that those are concerns that arise in cases involving sexual abuse. 150 00:10:11,559 --> 00:10:16,920 Speaker 1: It's not unique to this one, UM. But through expert testimony, UM, 151 00:10:16,920 --> 00:10:20,040 Speaker 1: and also on some of the redirect examination of the witnesses, 152 00:10:20,080 --> 00:10:22,520 Speaker 1: really probings of these questions. You know, why did you 153 00:10:22,520 --> 00:10:26,200 Speaker 1: stay in contact with him? Um? The prosecution hopes to 154 00:10:26,280 --> 00:10:30,480 Speaker 1: overcome those the questions that might arise in the juror's mind, 155 00:10:30,760 --> 00:10:33,080 Speaker 1: and then also to address it finally in their nation. 156 00:10:33,640 --> 00:10:36,400 Speaker 1: What does the prosecution really have to prove to this 157 00:10:36,559 --> 00:10:41,600 Speaker 1: jury about Maxwell that she brought the girls in and 158 00:10:42,080 --> 00:10:46,600 Speaker 1: facilitated his sexual encounters with them. Is that enough? The 159 00:10:46,640 --> 00:10:49,240 Speaker 1: government is going to need to show that Maxwell was 160 00:10:49,320 --> 00:10:54,400 Speaker 1: a knowing participants in the sex trafficking activities that Epstein 161 00:10:54,559 --> 00:10:58,040 Speaker 1: was engaged in. So as I understand that the defense 162 00:10:58,120 --> 00:11:01,560 Speaker 1: theory is that Maxwell was part of that Stein's life, 163 00:11:01,720 --> 00:11:04,840 Speaker 1: but that he compartmentalized his life, and so she was 164 00:11:05,040 --> 00:11:08,080 Speaker 1: unaware of what it was that he was doing with 165 00:11:08,240 --> 00:11:12,520 Speaker 1: the minor girls behind closed doors. And so the government 166 00:11:12,559 --> 00:11:16,920 Speaker 1: needs to persuade the jury that Maxwell was involved in 167 00:11:16,960 --> 00:11:20,200 Speaker 1: those sexual activities, that she played a number of roles 168 00:11:20,200 --> 00:11:23,760 Speaker 1: and helping them to occur, and she did that knowing 169 00:11:23,880 --> 00:11:27,720 Speaker 1: full well what it was that was happening behind closed doors, 170 00:11:27,920 --> 00:11:31,199 Speaker 1: and as the government alleges, with Maxwell herself being involved 171 00:11:31,360 --> 00:11:34,080 Speaker 1: in some of those activities. So it's a question of 172 00:11:34,120 --> 00:11:37,320 Speaker 1: both the actions that she engaged in and her intent. 173 00:11:38,080 --> 00:11:42,199 Speaker 1: Maxwell's attorneys haven't said if they'll call any witnesses yet. 174 00:11:42,720 --> 00:11:46,240 Speaker 1: It seems unlikely that Maxwell herself will take to stand, 175 00:11:46,640 --> 00:11:50,079 Speaker 1: but is that a possibility. There is always the possibility 176 00:11:50,120 --> 00:11:52,000 Speaker 1: that she will take the stands. I think it's too 177 00:11:52,000 --> 00:11:54,400 Speaker 1: soon to stay definitively one way or the other whether 178 00:11:54,440 --> 00:11:56,600 Speaker 1: they're going to do that here. They're clear risks for 179 00:11:56,679 --> 00:11:59,440 Speaker 1: her and taking the stands, But I'm sure her lawyers 180 00:11:59,520 --> 00:12:02,600 Speaker 1: are evaluating what they think the strength of the government's 181 00:12:02,640 --> 00:12:05,120 Speaker 1: evidence is at this point, and whether it's worth having 182 00:12:05,120 --> 00:12:08,640 Speaker 1: a discussion about Maxwell taking the stand. The defense had 183 00:12:08,640 --> 00:12:12,439 Speaker 1: given notice about several expert witnesses who they wanted to call, 184 00:12:12,720 --> 00:12:16,040 Speaker 1: including psychological experts, to talk about. For example, what the 185 00:12:16,080 --> 00:12:19,040 Speaker 1: defense described in pre trial filings is the halo effect 186 00:12:19,120 --> 00:12:22,720 Speaker 1: that they would argue that Jeffrey Epstein benefited from, which 187 00:12:22,760 --> 00:12:26,000 Speaker 1: caused people around him to essentially want to be in 188 00:12:26,120 --> 00:12:28,280 Speaker 1: his presence and to see the best in him, and 189 00:12:28,360 --> 00:12:31,960 Speaker 1: as a possible explanation for why Maxwell might not have 190 00:12:32,520 --> 00:12:35,160 Speaker 1: known what he was doing in the parts of his 191 00:12:35,240 --> 00:12:39,319 Speaker 1: life of the compartments that they argue he kept from Maxwell. 192 00:12:39,520 --> 00:12:43,120 Speaker 1: So there may be expert testimony of that nature. There 193 00:12:43,120 --> 00:12:46,520 Speaker 1: may be expert testimony intended to explicitly rebut some of 194 00:12:46,559 --> 00:12:50,040 Speaker 1: the expert testimony about sexual abuse in its dynamics that 195 00:12:50,160 --> 00:12:54,000 Speaker 1: the government offered. And beyond that, we don't know exactly 196 00:12:54,040 --> 00:12:56,800 Speaker 1: what witnesses the defense they call. Whether it would be 197 00:12:56,840 --> 00:13:00,480 Speaker 1: fact witnesses who might talk about the facts that support 198 00:13:00,559 --> 00:13:03,440 Speaker 1: this notion that Maxwell was removed from f Stein in 199 00:13:03,679 --> 00:13:08,000 Speaker 1: important ways that would undermine her presence and knowledge of 200 00:13:08,080 --> 00:13:11,120 Speaker 1: his sexual activities with miners. In theory, they could call 201 00:13:11,200 --> 00:13:15,160 Speaker 1: character witnesses about her character that would tend to undercut 202 00:13:15,520 --> 00:13:17,599 Speaker 1: the charges that have been brought against her. So I 203 00:13:17,640 --> 00:13:19,960 Speaker 1: think we really need to wait and see. It seems 204 00:13:19,960 --> 00:13:23,600 Speaker 1: like there's a parallel between these two high profile cases 205 00:13:24,080 --> 00:13:27,040 Speaker 1: where women are defendants on the East Coast and the 206 00:13:27,040 --> 00:13:29,560 Speaker 1: West Coast. And I'm referring to the Elizabeth Holmes trial 207 00:13:29,960 --> 00:13:34,600 Speaker 1: where she's blaming her former romantic partner for the things 208 00:13:34,600 --> 00:13:38,240 Speaker 1: that she's charged with, and here you have Maxwell blaming 209 00:13:38,240 --> 00:13:41,760 Speaker 1: her former romantic partner for the things that she's charged with. 210 00:13:42,160 --> 00:13:46,280 Speaker 1: There are some interesting parallels to consider between the two cases. Obviously, 211 00:13:46,320 --> 00:13:49,800 Speaker 1: the charges are so different, Homes case involving fraud, the 212 00:13:49,840 --> 00:13:53,160 Speaker 1: Maxwell case involving sexual ideas of the miners. But you 213 00:13:53,200 --> 00:13:56,000 Speaker 1: are right that there is a parallel in the sense 214 00:13:56,120 --> 00:13:58,200 Speaker 1: of in each case you have a woman on trial 215 00:13:58,440 --> 00:14:02,079 Speaker 1: and a male figure being this very dominant presence at 216 00:14:02,120 --> 00:14:07,319 Speaker 1: the trial and being blamed for being essentially exclusively responsible 217 00:14:07,440 --> 00:14:10,200 Speaker 1: for the crimes that have been alleged. In the Holmes case, 218 00:14:10,320 --> 00:14:14,000 Speaker 1: Tony Balwanti will stand trial her chief operating officer and 219 00:14:14,160 --> 00:14:17,440 Speaker 1: also her one time boyfriend, who she says essentially misled 220 00:14:17,480 --> 00:14:22,120 Speaker 1: her about Parados and also controlled her through an abusive relationship. 221 00:14:22,240 --> 00:14:25,080 Speaker 1: And she was of course eighteen or younger when she 222 00:14:25,160 --> 00:14:28,440 Speaker 1: met him. But Elizabeth Holmes was the CEO and founder 223 00:14:28,480 --> 00:14:31,520 Speaker 1: of Sara NOS. In the Maxwell case, I mean, Maxwell 224 00:14:31,600 --> 00:14:35,480 Speaker 1: was clearly subordinate to Epstein in terms of the role 225 00:14:35,640 --> 00:14:38,800 Speaker 1: she played in his affairs. There's no claim that she 226 00:14:38,920 --> 00:14:42,840 Speaker 1: was essentially the CEO. She was very much, it would seem, 227 00:14:42,840 --> 00:14:46,240 Speaker 1: an employee of Epstein, and so there's a difference there 228 00:14:46,320 --> 00:14:48,960 Speaker 1: in the relative roles plate. But it will be interesting 229 00:14:49,040 --> 00:14:51,840 Speaker 1: to see in the Maxwell case, as the defense starts 230 00:14:51,880 --> 00:14:54,080 Speaker 1: to put forward its case, this isn't it does put 231 00:14:54,080 --> 00:14:56,880 Speaker 1: forward a defense case if there is an attempt to 232 00:14:56,880 --> 00:15:00,480 Speaker 1: portray that relationship between Epstein and Maxwell in a way 233 00:15:00,680 --> 00:15:03,880 Speaker 1: that echo themes of the Homes trial. In any suggestion 234 00:15:03,920 --> 00:15:07,480 Speaker 1: that Maxwell was sort of under steen sway in some manner. 235 00:15:07,680 --> 00:15:09,600 Speaker 1: I don't think we're going to see that, but it 236 00:15:09,720 --> 00:15:12,440 Speaker 1: is remarkable that we do have these two such high 237 00:15:12,440 --> 00:15:16,720 Speaker 1: profile trials going on simultaneously now onto coast. Thanks Jessica. 238 00:15:17,040 --> 00:15:22,360 Speaker 1: That's Professor Jessica Roth of Cardozo Law School. The Supreme 239 00:15:22,360 --> 00:15:25,640 Speaker 1: Court appears ready to give another win to parents seeking 240 00:15:25,680 --> 00:15:29,720 Speaker 1: public funds for religious education. At oral arguments this week, 241 00:15:29,920 --> 00:15:34,520 Speaker 1: all the courts conservative justices suggested that Maine was violating 242 00:15:34,520 --> 00:15:38,680 Speaker 1: the Constitution's free exercise clause by barring the use of 243 00:15:38,760 --> 00:15:43,520 Speaker 1: public dollars at religious schools. The conservative justices and the 244 00:15:43,600 --> 00:15:47,760 Speaker 1: liberal Johnstices appeared to have opposite views on what constitutes 245 00:15:47,800 --> 00:15:51,400 Speaker 1: discrimination on the basis of religion. Here are johnstice Is, 246 00:15:51,400 --> 00:15:54,600 Speaker 1: Brett Kavanaugh, and Sonya So to Mayor, and the first 247 00:15:54,640 --> 00:15:59,960 Speaker 1: neighbor says, we're going to send our child children to secular, 248 00:16:00,000 --> 00:16:03,240 Speaker 1: our private school. They get the benefit. The next door 249 00:16:03,280 --> 00:16:06,600 Speaker 1: neighbor says, well, we want to send our children to 250 00:16:06,720 --> 00:16:10,640 Speaker 1: a religious private school, and they're not going to get 251 00:16:10,640 --> 00:16:13,760 Speaker 1: the benefit. And I don't see how your suggestion that 252 00:16:13,840 --> 00:16:18,760 Speaker 1: the subsidy changes the analysis. That's just discrimination on the 253 00:16:18,800 --> 00:16:23,000 Speaker 1: basis of religion. These parents are put through the same 254 00:16:23,080 --> 00:16:25,360 Speaker 1: choice that every other parent in Maine is put to 255 00:16:26,600 --> 00:16:31,120 Speaker 1: either get a free public EDGIC secular education or pay 256 00:16:31,200 --> 00:16:35,760 Speaker 1: for your religious training. They're being treated as everybody else's justices. 257 00:16:35,840 --> 00:16:40,280 Speaker 1: Stephen Bryan Elena Kagan question why Maine should be required 258 00:16:40,320 --> 00:16:43,840 Speaker 1: to fund the teachings of the schools in question. Schools 259 00:16:43,840 --> 00:16:46,400 Speaker 1: beliefs that they don't want to have gay students. They can't, 260 00:16:46,880 --> 00:16:49,720 Speaker 1: they can't have gay teachers. They have to teach that 261 00:16:49,760 --> 00:16:52,440 Speaker 1: the man is the boss of a woman in a 262 00:16:52,480 --> 00:16:55,560 Speaker 1: bunch of other things like that. I mean, these schools 263 00:16:55,600 --> 00:17:01,800 Speaker 1: are overtly discriminatory. They're proudly discriminatory. Other people won't understand 264 00:17:01,920 --> 00:17:05,240 Speaker 1: why in the world their tax payer dollars are going 265 00:17:05,359 --> 00:17:09,400 Speaker 1: to discriminatory schools. My guest is Richard Garnett, a professor 266 00:17:09,440 --> 00:17:12,880 Speaker 1: at Notre Dame Law School. Rick explain the issue here 267 00:17:13,000 --> 00:17:17,080 Speaker 1: in the context of prior cases. So the question presented 268 00:17:17,119 --> 00:17:19,720 Speaker 1: here has to do with a program in the state 269 00:17:19,720 --> 00:17:23,720 Speaker 1: of Maine that provides public funding to students who live 270 00:17:23,760 --> 00:17:27,200 Speaker 1: in a district that doesn't have a traditional public school. 271 00:17:27,440 --> 00:17:30,520 Speaker 1: It provides public funding for them to attend schools in 272 00:17:30,560 --> 00:17:33,639 Speaker 1: other districts, or to use public funds to attend a 273 00:17:33,680 --> 00:17:36,240 Speaker 1: private school, and students have used these public funds to 274 00:17:36,280 --> 00:17:40,640 Speaker 1: attend private schools all over the country wide variation of institutions. 275 00:17:40,640 --> 00:17:42,600 Speaker 1: But Maine has a rule that the funds can't be 276 00:17:42,680 --> 00:17:44,680 Speaker 1: used at a school if that school is deemed to 277 00:17:44,680 --> 00:17:47,600 Speaker 1: be quote unquote sectarian. And so the question is whether 278 00:17:47,680 --> 00:17:51,800 Speaker 1: that exclusion by the State of Maine is unconstitutional discrimination 279 00:17:51,800 --> 00:17:54,520 Speaker 1: against religion. The Supreme Court has made it clear that 280 00:17:54,600 --> 00:17:57,840 Speaker 1: governments are not allowed to discriminate on the basis of 281 00:17:57,880 --> 00:18:01,200 Speaker 1: religion or to hold it against citizens that they make 282 00:18:01,280 --> 00:18:03,320 Speaker 1: religious choices, and so on. It has been a couple 283 00:18:03,320 --> 00:18:05,840 Speaker 1: of cases in the last few years decided by the 284 00:18:05,880 --> 00:18:08,400 Speaker 1: Court which have been kind of inching up to this 285 00:18:08,520 --> 00:18:10,640 Speaker 1: main case. There was a case out of Missouri called 286 00:18:10,680 --> 00:18:13,720 Speaker 1: Trinity Lutheran and a case out of Montana called Espinosa, 287 00:18:13,880 --> 00:18:16,280 Speaker 1: And in both of those cases, again relatively recently, the 288 00:18:16,320 --> 00:18:19,719 Speaker 1: Supreme Court said that when the government makes benefits available 289 00:18:19,880 --> 00:18:25,439 Speaker 1: according to certain criteria, it can't discriminate against beneficiaries simply 290 00:18:25,480 --> 00:18:29,280 Speaker 1: on the ground of the beneficiaries religious status. And what 291 00:18:29,359 --> 00:18:32,240 Speaker 1: was Maine's position here, According to the State of Maine, 292 00:18:32,240 --> 00:18:34,119 Speaker 1: they would say, well, we're not discriminating on the basis 293 00:18:34,119 --> 00:18:38,320 Speaker 1: of religious status. Rather, we're discriminating or we're excluding schools 294 00:18:38,359 --> 00:18:42,040 Speaker 1: that have a pervasively religious character that are involved in 295 00:18:42,119 --> 00:18:45,119 Speaker 1: religious instruction. I think the word that the lawyer for 296 00:18:45,160 --> 00:18:47,760 Speaker 1: the State of Maine used repeatedly was we exclude schools 297 00:18:47,760 --> 00:18:51,399 Speaker 1: that are involved in instilling religious faith in children. So 298 00:18:51,880 --> 00:18:54,520 Speaker 1: Maine would permit funds to go to a school that was, 299 00:18:54,680 --> 00:18:58,040 Speaker 1: you know, religiously affiliated, but otherwise didn't really have any 300 00:18:58,040 --> 00:19:00,879 Speaker 1: religious content. What they won't do, though, and they have 301 00:19:01,240 --> 00:19:03,360 Speaker 1: you know, government officials whose job it is to kind 302 00:19:03,359 --> 00:19:06,920 Speaker 1: of evaluate these schools and decide whether they are sectarian, 303 00:19:07,200 --> 00:19:10,600 Speaker 1: which I guess is Maine's term for pervasively religious, or 304 00:19:10,640 --> 00:19:14,640 Speaker 1: whether they're merely religiously affiliated. And the challengers are saying, well, 305 00:19:14,720 --> 00:19:17,480 Speaker 1: this is the same thing if you're discriminating against people 306 00:19:17,840 --> 00:19:20,879 Speaker 1: because of their religious beliefs want to educate their kids 307 00:19:21,040 --> 00:19:25,040 Speaker 1: in a meaningfully religious school. Essentially, you're saying that benefits 308 00:19:25,080 --> 00:19:27,560 Speaker 1: that they're otherwise entitled to as residents of the State 309 00:19:27,560 --> 00:19:30,040 Speaker 1: of Maine in a district without a school, that they 310 00:19:30,080 --> 00:19:32,360 Speaker 1: lose them they're being punished in a sense for their 311 00:19:32,359 --> 00:19:35,840 Speaker 1: religious choice, and the lawyers for Maine and also the 312 00:19:35,920 --> 00:19:38,280 Speaker 1: United States took this position would say, no, that's not 313 00:19:38,400 --> 00:19:40,960 Speaker 1: what's happening here. Instead, what's happening is it Maine is 314 00:19:41,000 --> 00:19:44,440 Speaker 1: simply deciding what kind of education it wants to subsidize, 315 00:19:44,640 --> 00:19:47,640 Speaker 1: and Maine has decided that it only wants to subsidize 316 00:19:48,240 --> 00:19:51,840 Speaker 1: secular or non sectarian education. So this is kind of 317 00:19:51,880 --> 00:19:54,879 Speaker 1: the third in a series of cases that present similar issues, 318 00:19:54,920 --> 00:19:57,720 Speaker 1: and I think the reason why it's closely watched is 319 00:19:57,760 --> 00:19:59,960 Speaker 1: because the other two cases seem to be pointing towards 320 00:20:00,040 --> 00:20:01,840 Speaker 1: this one, and so, like I guess, the issue is 321 00:20:01,840 --> 00:20:04,040 Speaker 1: whether the Court is going to kind of continue on 322 00:20:04,119 --> 00:20:07,320 Speaker 1: the same path that those two previous cases sketched out, 323 00:20:07,800 --> 00:20:10,600 Speaker 1: or whether there's something different about Maine's program that will 324 00:20:10,680 --> 00:20:13,719 Speaker 1: lead the justices to say, no, this exclusion is permissible. 325 00:20:13,920 --> 00:20:17,120 Speaker 1: Did it appear that a majority of the conservative justices 326 00:20:17,680 --> 00:20:22,720 Speaker 1: seemed ready to rule against Maine. That would be my impression, 327 00:20:22,840 --> 00:20:25,240 Speaker 1: you know, with all the caveats that justices asked questions 328 00:20:25,240 --> 00:20:27,640 Speaker 1: all the time that don't necessarily tell us which way 329 00:20:27,680 --> 00:20:29,920 Speaker 1: they're going to rule. The first of this series of cases, 330 00:20:29,960 --> 00:20:33,160 Speaker 1: I mentioned Trinity Lutheran from Missouri that was seven to two. 331 00:20:33,200 --> 00:20:36,960 Speaker 1: It wasn't an ideologically divided case the more recent one Espinosa, 332 00:20:37,040 --> 00:20:39,240 Speaker 1: that was five to four, And so I suppose it 333 00:20:39,280 --> 00:20:43,119 Speaker 1: wouldn't be surprising if this case out of Maine was 334 00:20:43,200 --> 00:20:46,040 Speaker 1: also five to four or six to three. Given the membership, 335 00:20:46,320 --> 00:20:49,320 Speaker 1: the questions that the more conservative justices were asking seemed 336 00:20:49,359 --> 00:20:52,440 Speaker 1: to be pressing Maine on the claim that this isn't 337 00:20:52,440 --> 00:20:55,119 Speaker 1: really discrimination against religion. So there were a lot of 338 00:20:55,240 --> 00:20:58,560 Speaker 1: hypos and kind of intriguing questions trying to flesh out 339 00:20:58,600 --> 00:21:01,080 Speaker 1: the question whether what Maine is doing here is really 340 00:21:01,160 --> 00:21:03,680 Speaker 1: just kind of a neutral way of deciding what it 341 00:21:03,720 --> 00:21:07,399 Speaker 1: wants to fund, or is this really the same kind 342 00:21:07,520 --> 00:21:10,000 Speaker 1: of exclusion on the basis of religion that the Court 343 00:21:10,040 --> 00:21:13,159 Speaker 1: has already said is impermissible and tell us about the 344 00:21:13,200 --> 00:21:17,439 Speaker 1: liberal justices concerns. So Justice Brier sounded a theme that 345 00:21:18,560 --> 00:21:21,680 Speaker 1: has been important to him for at least two decades. 346 00:21:21,720 --> 00:21:25,840 Speaker 1: He said, look, the state has an interest and of course, 347 00:21:25,880 --> 00:21:27,880 Speaker 1: remember he's been in dissent in a lot of these 348 00:21:27,880 --> 00:21:30,400 Speaker 1: cases over the decades. Though in a sense he's uh 349 00:21:30,680 --> 00:21:32,240 Speaker 1: a little bit of a bind, as he acknowledged in 350 00:21:32,280 --> 00:21:34,600 Speaker 1: the argument, but he said, the state of Maine has 351 00:21:34,640 --> 00:21:40,000 Speaker 1: an interest in deciding that it will reduce the possibilities 352 00:21:40,119 --> 00:21:45,240 Speaker 1: of political strife political division. If Maine just says, look, 353 00:21:45,280 --> 00:21:48,119 Speaker 1: we are going to have a policy of only sending 354 00:21:48,200 --> 00:21:52,000 Speaker 1: public funds to UM to non religious schools, that that 355 00:21:52,040 --> 00:21:53,760 Speaker 1: will be a way of kind of preserving peace and 356 00:21:53,800 --> 00:21:58,640 Speaker 1: a pluralistic society. And the more conservative justices were sort 357 00:21:58,640 --> 00:22:00,600 Speaker 1: of pushed back on that and said, well, that's not 358 00:22:00,640 --> 00:22:03,679 Speaker 1: a constitutional standard, And in any event, how do we 359 00:22:03,720 --> 00:22:06,880 Speaker 1: know whether it's more or less divisive to exclude religious 360 00:22:06,920 --> 00:22:09,480 Speaker 1: schools rather than to include them. I think for Justice 361 00:22:09,920 --> 00:22:13,840 Speaker 1: Kagan and Um, she was, as she often is, very 362 00:22:13,880 --> 00:22:19,720 Speaker 1: focused and precise in her questioning. She she conceded that, 363 00:22:19,800 --> 00:22:23,040 Speaker 1: of course, when the government's regulating, it doesn't make sense 364 00:22:23,080 --> 00:22:25,800 Speaker 1: to distinguish between, you know, discrimination on the basis of 365 00:22:25,840 --> 00:22:29,440 Speaker 1: religious status and discrimination on the basis of religious use. 366 00:22:30,280 --> 00:22:34,080 Speaker 1: But she proposed that when you're talking about funding or 367 00:22:34,119 --> 00:22:39,840 Speaker 1: what she called subsidization, that in that particular context, states 368 00:22:40,200 --> 00:22:43,840 Speaker 1: should have the leeway to decide whether or not they 369 00:22:43,920 --> 00:22:47,040 Speaker 1: want to fund I think it's not a question of prohibiting, 370 00:22:47,040 --> 00:22:50,800 Speaker 1: but whether or not UM they want to fund certain 371 00:22:50,880 --> 00:22:53,960 Speaker 1: kinds of education or not. It's a fascinating question that 372 00:22:54,000 --> 00:22:56,000 Speaker 1: comes up in law a lot is how do you 373 00:22:56,040 --> 00:22:59,840 Speaker 1: decide when what the government is doing is penalizing somebody 374 00:23:00,119 --> 00:23:03,320 Speaker 1: versus simply declining to benefit them. Is that a tomato 375 00:23:03,359 --> 00:23:06,080 Speaker 1: tomato kind of thing? Or there are there meaningful distinctions there, 376 00:23:06,480 --> 00:23:09,160 Speaker 1: And I think Justice Kagan was suggesting that there there 377 00:23:09,280 --> 00:23:13,399 Speaker 1: is a distinction that can be drawn between discrimination in 378 00:23:13,440 --> 00:23:17,320 Speaker 1: the context of a regulation or discrimination in the context 379 00:23:17,359 --> 00:23:19,640 Speaker 1: of access to a general benefit on the one hand, 380 00:23:20,400 --> 00:23:23,080 Speaker 1: and she wouldn't call it discrimination, I think, but a 381 00:23:23,119 --> 00:23:27,119 Speaker 1: government decision about what it wants to fund. Would the 382 00:23:27,160 --> 00:23:31,040 Speaker 1: court have to overrule the two thousand four Supreme Court 383 00:23:31,080 --> 00:23:35,000 Speaker 1: precedent in the case that upheld a Washington State post 384 00:23:35,040 --> 00:23:40,200 Speaker 1: secondary grant program that excluded theology students. Interesting that that's 385 00:23:40,240 --> 00:23:43,080 Speaker 1: the lock feed Davy case um, And there was some 386 00:23:43,160 --> 00:23:46,040 Speaker 1: exchanges between the lawyers and the justices on this point. 387 00:23:46,160 --> 00:23:47,760 Speaker 1: I think it was pretty clear that they would not 388 00:23:48,320 --> 00:23:50,840 Speaker 1: have to overrule it. That is, Lock feed Davy was 389 00:23:50,840 --> 00:23:54,399 Speaker 1: about a particular situation where the state was declining to 390 00:23:54,520 --> 00:23:58,360 Speaker 1: fund actual training for the ministry. That was the case 391 00:23:58,400 --> 00:24:01,320 Speaker 1: where the state was perfectly willing to fund students going 392 00:24:01,359 --> 00:24:05,440 Speaker 1: to religious schools, including pretty pervasively religious schools, and students 393 00:24:05,440 --> 00:24:07,760 Speaker 1: were allowed to study religion if they wanted to to 394 00:24:07,840 --> 00:24:12,760 Speaker 1: take religious ministry classes. The exclusion was very narrowly focused 395 00:24:12,960 --> 00:24:17,840 Speaker 1: on majoring in basically pre minister studies, and Um the 396 00:24:17,920 --> 00:24:20,800 Speaker 1: lawyer for those challenging this main law said you don't 397 00:24:20,840 --> 00:24:22,800 Speaker 1: have to overrule lock the Davey to say this is 398 00:24:22,800 --> 00:24:25,480 Speaker 1: a different case. Some look at this as a slippery 399 00:24:25,600 --> 00:24:29,360 Speaker 1: slope that could lead to public funds being used for 400 00:24:29,600 --> 00:24:33,639 Speaker 1: church sponsored charter schools. The really intriguing question is whether 401 00:24:33,720 --> 00:24:38,440 Speaker 1: a charter school program is analogous to the benefits program here. 402 00:24:38,680 --> 00:24:42,040 Speaker 1: Charter schools, at least in theory, are government schools, and 403 00:24:42,080 --> 00:24:46,080 Speaker 1: so it could be that states are perfectly permitted because 404 00:24:46,119 --> 00:24:48,280 Speaker 1: they're going to regard them as public schools. It follows 405 00:24:48,320 --> 00:24:50,520 Speaker 1: that they're not going to be religious schools. But of course, 406 00:24:50,680 --> 00:24:53,239 Speaker 1: and this is what I think the commentary is getting at, 407 00:24:53,680 --> 00:24:57,640 Speaker 1: if we think of a charter school authorization program as 408 00:24:57,680 --> 00:25:01,960 Speaker 1: being more like a general dollarship or school choice program, 409 00:25:02,000 --> 00:25:03,760 Speaker 1: well then it would look kind of weird if having 410 00:25:03,760 --> 00:25:05,960 Speaker 1: a charter where a benefit but it was being denied 411 00:25:06,359 --> 00:25:09,880 Speaker 1: to religious would be charter school operators but being granted 412 00:25:09,880 --> 00:25:12,280 Speaker 1: to charter school operators who wanted to have stem schools 413 00:25:12,359 --> 00:25:14,760 Speaker 1: or art schools or what have you. So that will 414 00:25:14,800 --> 00:25:17,199 Speaker 1: be a question that will arise. It's I think it's 415 00:25:17,200 --> 00:25:19,520 Speaker 1: difficult to predict and how exactly how it would come 416 00:25:19,560 --> 00:25:25,000 Speaker 1: out because different states structure there charter school authorization processes differently. 417 00:25:25,640 --> 00:25:27,640 Speaker 1: But at least for now, it strikes me that there 418 00:25:27,720 --> 00:25:30,480 Speaker 1: is a distinction that can be drawn between on the 419 00:25:30,520 --> 00:25:34,600 Speaker 1: one hand, states that decide to let some of their 420 00:25:34,640 --> 00:25:39,040 Speaker 1: public schools be run as charters, but they're still public schools, 421 00:25:39,640 --> 00:25:42,320 Speaker 1: and on the other hand, a program like Mains, where 422 00:25:42,359 --> 00:25:46,320 Speaker 1: Maine decided to permit the funding of private schools. The 423 00:25:46,640 --> 00:25:48,679 Speaker 1: lawyers for the state of Maine were very candid. You know, 424 00:25:48,920 --> 00:25:52,840 Speaker 1: kids can use as funds fancy prep schools like Hanover. 425 00:25:52,920 --> 00:25:54,960 Speaker 1: They've used them in states outside of Maine. Again, they 426 00:25:54,960 --> 00:25:58,080 Speaker 1: can even use them as some religiously ahiliated schools, but 427 00:25:58,240 --> 00:26:03,359 Speaker 1: they're excluding certain religious schools on the basis of their 428 00:26:03,480 --> 00:26:07,320 Speaker 1: religious character. And I suspect that that that's different from 429 00:26:07,359 --> 00:26:10,040 Speaker 1: the charter school question. But the charter school question will 430 00:26:10,040 --> 00:26:12,159 Speaker 1: be certainly on a lot of people's minds, and I 431 00:26:12,200 --> 00:26:16,360 Speaker 1: suspect there'll be some litigation about it. Thanks so much 432 00:26:16,400 --> 00:26:19,600 Speaker 1: for being on the show. Rick. That's Professor Richard Garnett 433 00:26:19,640 --> 00:26:25,440 Speaker 1: of Notre Dame Law School. The Senate Judiciary Committee deadlocked 434 00:26:25,440 --> 00:26:29,200 Speaker 1: along party lines on advancing three of President Joe Biden's 435 00:26:29,280 --> 00:26:34,800 Speaker 1: judicial nominees to the full Chamber, including an LGBT trailblazer 436 00:26:35,040 --> 00:26:38,000 Speaker 1: and a pick for the largest appellate court. Joining me 437 00:26:38,080 --> 00:26:42,160 Speaker 1: is Professor Carl Tobias of the University of Richmond Law School. Carl, 438 00:26:42,240 --> 00:26:44,960 Speaker 1: let's start with Holly Thomas, who is nominated to the 439 00:26:45,040 --> 00:26:49,840 Speaker 1: ninth Circuit. Why was the committee deadlocked on her nomination. Well, 440 00:26:50,359 --> 00:26:57,240 Speaker 1: the Republican Senators, especially Cruz Cotton and Holly, we're very 441 00:26:57,280 --> 00:27:01,239 Speaker 1: critical of litigation that she ended before she became a 442 00:27:01,320 --> 00:27:04,879 Speaker 1: judge in the state system in California for the a 443 00:27:05,000 --> 00:27:08,400 Speaker 1: c l U and for the Department of Justice, principally 444 00:27:08,400 --> 00:27:14,879 Speaker 1: in the area of transgender students in schools. But she 445 00:27:15,040 --> 00:27:19,119 Speaker 1: seems to be quite qualified, and she said she clearly 446 00:27:19,200 --> 00:27:24,040 Speaker 1: understood the difference in being an advocate as a lawyer 447 00:27:24,480 --> 00:27:26,760 Speaker 1: and being a judge, and she has done that for 448 00:27:26,840 --> 00:27:31,120 Speaker 1: several years in the California system, but Senator Graham at 449 00:27:31,160 --> 00:27:35,480 Speaker 1: first voted for her, but then changed his mind, and 450 00:27:35,560 --> 00:27:38,800 Speaker 1: so it became an eleven eleven tie, and so she 451 00:27:38,840 --> 00:27:42,120 Speaker 1: would have to be discharged from committee and would join 452 00:27:42,320 --> 00:27:45,840 Speaker 1: Jennifer Sung for the Ninth Circuit as well, who had 453 00:27:45,880 --> 00:27:49,040 Speaker 1: a tie vote, and I expect that both of them 454 00:27:49,080 --> 00:27:55,280 Speaker 1: will be coming up soon for cloture and final vote. 455 00:27:55,680 --> 00:27:58,480 Speaker 1: So she would be the second black woman to ever 456 00:27:58,600 --> 00:28:01,520 Speaker 1: serve on the Ninth Circuit. Tell us a little about 457 00:28:01,520 --> 00:28:05,520 Speaker 1: her background. Well, I believe she was with the A C. 458 00:28:05,720 --> 00:28:09,480 Speaker 1: L U for some time as a litigator, and I 459 00:28:09,520 --> 00:28:13,200 Speaker 1: think it has argued cases in more than half the circuits. 460 00:28:13,680 --> 00:28:16,399 Speaker 1: And I believe she was at the Department of Justice, 461 00:28:16,400 --> 00:28:20,159 Speaker 1: maybe in the Civil Rights Division, and has litigated civil 462 00:28:20,240 --> 00:28:25,320 Speaker 1: rights issues there and then has spent several years on 463 00:28:25,440 --> 00:28:29,520 Speaker 1: the California Superior Court in Los Angeles. One of the 464 00:28:29,640 --> 00:28:33,360 Speaker 1: other nominees that was dead luck was Charlotte Sweeney, who 465 00:28:33,440 --> 00:28:37,880 Speaker 1: was nominated to the District Court for the District of Colorado. Well, 466 00:28:37,960 --> 00:28:41,880 Speaker 1: she's been in practice, I think for a couple of decades. 467 00:28:42,040 --> 00:28:45,640 Speaker 1: It seems very experienced and has won some high profile 468 00:28:45,720 --> 00:28:51,520 Speaker 1: cases involving issues of equality. For lgbt Q people, and 469 00:28:51,680 --> 00:28:58,520 Speaker 1: she would be, if confirmed, the first woman lgbt Q 470 00:28:58,880 --> 00:29:04,320 Speaker 1: individual west the Mississippi to be a district judge. UM. 471 00:29:04,360 --> 00:29:08,040 Speaker 1: And there was not very much discussion of her UM 472 00:29:08,080 --> 00:29:12,720 Speaker 1: in committee UM, and the senators seemed satisfied and didn't 473 00:29:12,720 --> 00:29:14,720 Speaker 1: ask her a whole lot of questions during her hearing. 474 00:29:15,320 --> 00:29:19,800 Speaker 1: So it's puzzling exactly why UM she didn't get more votes, 475 00:29:19,840 --> 00:29:23,320 Speaker 1: but that's where she sits, and they could be a 476 00:29:23,360 --> 00:29:28,160 Speaker 1: discharged petition on her as well. And what do you 477 00:29:28,160 --> 00:29:31,800 Speaker 1: know about Hernon Vera, who was nominated to the Central 478 00:29:31,800 --> 00:29:35,000 Speaker 1: District of California to be a district court judge. Well, 479 00:29:35,040 --> 00:29:38,120 Speaker 1: he also I think it's on the Superior Court in 480 00:29:38,760 --> 00:29:46,640 Speaker 1: um California, and very little questioning or discussion about him UM. 481 00:29:46,680 --> 00:29:50,120 Speaker 1: But I do believe he had a background in public 482 00:29:50,160 --> 00:29:55,360 Speaker 1: interest law for a large firm that conducts that kind 483 00:29:55,400 --> 00:29:58,680 Speaker 1: of litigation, so maybe that was of concern to the 484 00:29:58,680 --> 00:30:02,400 Speaker 1: Republican senators. But in any event, he had a similar 485 00:30:02,520 --> 00:30:06,120 Speaker 1: eleven eleven high vote. But I don't believe that he's 486 00:30:06,160 --> 00:30:09,560 Speaker 1: been controversial on the state bench there where he sat 487 00:30:10,320 --> 00:30:15,560 Speaker 1: in Los Angeles. So could it be that Biden is 488 00:30:15,600 --> 00:30:19,560 Speaker 1: getting to the more controversial nominees that in the beginning 489 00:30:19,560 --> 00:30:23,160 Speaker 1: he nominated people who went through easily, and now he's 490 00:30:23,160 --> 00:30:27,120 Speaker 1: getting to the more controversial ones. Well, it could be then, 491 00:30:27,280 --> 00:30:30,560 Speaker 1: but also it seems like the Republicans are doubling down, 492 00:30:31,320 --> 00:30:37,440 Speaker 1: um and raising issues that really don't seem very appropriate. 493 00:30:37,600 --> 00:30:41,880 Speaker 1: For example, with Holly Thomas, they talked about Loudon County 494 00:30:41,960 --> 00:30:45,760 Speaker 1: town here in Virginia, where there was an issue involving 495 00:30:45,840 --> 00:30:51,240 Speaker 1: a transgender student. But subsequent to the time they questioned her, 496 00:30:51,520 --> 00:30:56,680 Speaker 1: it became clear uh that the Republicans didn't have their 497 00:30:56,680 --> 00:31:00,000 Speaker 1: facts correct, and she said she had never even heard 498 00:31:00,000 --> 00:31:04,520 Speaker 1: heard of the case, and so, um, that's not surprising 499 00:31:04,600 --> 00:31:08,000 Speaker 1: because it was very low profile. So it's just hard 500 00:31:08,080 --> 00:31:12,360 Speaker 1: to know. But it does seem except for Lindsay Graham, 501 00:31:12,560 --> 00:31:16,080 Speaker 1: there have been very few departures uh from party line 502 00:31:16,160 --> 00:31:21,320 Speaker 1: votes in committee on the Republican side, and he has 503 00:31:21,360 --> 00:31:24,560 Speaker 1: gone back to his old practice uh from the Obamba 504 00:31:24,560 --> 00:31:28,440 Speaker 1: administration and earlier, saying if the President sends up a 505 00:31:28,520 --> 00:31:33,440 Speaker 1: nominee who was well qualified, then Graham will vote for 506 00:31:33,440 --> 00:31:36,280 Speaker 1: that person because he gives the president the benefit of 507 00:31:36,320 --> 00:31:40,680 Speaker 1: the doubt. And so it's been unusual when he's voted no, 508 00:31:41,000 --> 00:31:43,600 Speaker 1: but he has voted no on some and has voted 509 00:31:43,680 --> 00:31:48,280 Speaker 1: pass on others, which is allowed some people to then 510 00:31:48,320 --> 00:31:51,160 Speaker 1: get to the floor and be confirmed and so, but 511 00:31:51,240 --> 00:31:54,920 Speaker 1: everybody else is pretty much voting no, with some exceptions, 512 00:31:55,640 --> 00:32:00,720 Speaker 1: especially as to appellate nominees. So the committee did favorably 513 00:32:00,760 --> 00:32:05,880 Speaker 1: report nine Biden judicial nominees, including Gabriel Sanchez for the 514 00:32:06,000 --> 00:32:11,920 Speaker 1: Ninth Circuit. He is now an appellate judge there near 515 00:32:12,040 --> 00:32:16,440 Speaker 1: mediate appellate court, I think in northern California. He's been 516 00:32:16,440 --> 00:32:20,040 Speaker 1: there a couple of years. He worked on judicial selection 517 00:32:20,080 --> 00:32:23,880 Speaker 1: and many other issues UH during the administration of Governor 518 00:32:24,640 --> 00:32:30,760 Speaker 1: Jerry Brown, and I think had a strong hearing, but 519 00:32:31,040 --> 00:32:37,040 Speaker 1: many questions from Republicans, especially that he would be um 520 00:32:37,080 --> 00:32:40,880 Speaker 1: an activist on the court. But he said his experience 521 00:32:40,920 --> 00:32:43,880 Speaker 1: as being a judge has shown him and he knew 522 00:32:43,880 --> 00:32:47,240 Speaker 1: when he came on the California State Court that he 523 00:32:47,320 --> 00:32:51,840 Speaker 1: had to leave his advocacy and activism behind, and I 524 00:32:51,920 --> 00:32:55,040 Speaker 1: think his records shows that he did that, and so 525 00:32:55,680 --> 00:32:58,200 Speaker 1: he did get Cenator Graham's vote was twelve to ten, 526 00:32:59,240 --> 00:33:03,440 Speaker 1: and he does seem quite qualified, and so I think 527 00:33:03,440 --> 00:33:07,080 Speaker 1: he'll easily be confirmed, but it may be closed. Let's 528 00:33:07,120 --> 00:33:11,160 Speaker 1: talk a little about the White House commission that's examining 529 00:33:11,360 --> 00:33:16,120 Speaker 1: changes to the Supreme Court. The report is going to 530 00:33:16,200 --> 00:33:21,920 Speaker 1: be basically the pros and cons of different proposals. What 531 00:33:21,960 --> 00:33:25,800 Speaker 1: do you think has come out of this commission? Well, 532 00:33:25,840 --> 00:33:31,720 Speaker 1: I think the commission has three dozen very well respected 533 00:33:32,520 --> 00:33:38,600 Speaker 1: UM lawyers and law professors and others who intimately familiar 534 00:33:38,640 --> 00:33:43,000 Speaker 1: with the Supreme Court and confirmation process, and they did 535 00:33:43,040 --> 00:33:46,040 Speaker 1: a lot of very hard and very difficult work in 536 00:33:46,080 --> 00:33:49,880 Speaker 1: a very short compass of time. The President's executive order 537 00:33:49,920 --> 00:33:53,880 Speaker 1: setting up the commission did not ask for recommendations, and 538 00:33:53,920 --> 00:33:56,600 Speaker 1: I believe they're not going to give any. But what 539 00:33:56,640 --> 00:34:01,880 Speaker 1: they did do is compile a report that I think 540 00:34:01,960 --> 00:34:06,800 Speaker 1: they will issue very shortly after today's public here in 541 00:34:06,920 --> 00:34:12,080 Speaker 1: late afternoon, but essentially trying to look at both sides 542 00:34:12,360 --> 00:34:17,439 Speaker 1: of this issue about the Court and whether there might 543 00:34:17,520 --> 00:34:22,399 Speaker 1: be ways to improve the court. And UM have done 544 00:34:22,440 --> 00:34:25,640 Speaker 1: a lot of research. Didn't always agree, but I think 545 00:34:25,840 --> 00:34:32,359 Speaker 1: have tried to set out the important issues and show 546 00:34:32,440 --> 00:34:34,320 Speaker 1: the pros and cons. So I think it's been a 547 00:34:34,400 --> 00:34:38,560 Speaker 1: valuable exercise UM and the President himself and setting it upset, 548 00:34:38,640 --> 00:34:43,960 Speaker 1: I don't want recommendations. I am inclined not to agree 549 00:34:44,120 --> 00:34:47,719 Speaker 1: with the idea of packing the court. Uh. And I 550 00:34:47,760 --> 00:34:51,560 Speaker 1: think he's also expressed publicly he's not very interested in 551 00:34:51,600 --> 00:34:56,640 Speaker 1: the prospect of some kind of term limits for the justices. 552 00:34:57,560 --> 00:35:00,239 Speaker 1: But they have thrashed out all those issues, and I 553 00:35:00,280 --> 00:35:06,920 Speaker 1: think in a productive, helpful, valuable way. So that exercise 554 00:35:06,960 --> 00:35:10,239 Speaker 1: in itself is commendable and helpful, and hopefully we'll move 555 00:35:10,280 --> 00:35:14,799 Speaker 1: the debate forward. They embraced sort of middle of the 556 00:35:14,880 --> 00:35:21,520 Speaker 1: road kind of changes or continuations, like live streaming of 557 00:35:21,800 --> 00:35:26,520 Speaker 1: oral arguments and advisory ethics code. But when it came 558 00:35:26,600 --> 00:35:30,800 Speaker 1: to expanding the membership of the court or even term limits, 559 00:35:31,120 --> 00:35:35,600 Speaker 1: they said there was profound disagreement if the Supreme Court 560 00:35:36,440 --> 00:35:42,400 Speaker 1: overturns Roe v. Wade or even just as expected, affirms 561 00:35:42,440 --> 00:35:45,799 Speaker 1: the Mississippi Law. Is the pressure going to build on 562 00:35:45,960 --> 00:35:50,719 Speaker 1: Biden to make changes to the Supreme Court, Well, it may, 563 00:35:51,040 --> 00:35:55,680 Speaker 1: but he has I think being resistant to that so far. 564 00:35:56,600 --> 00:36:00,160 Speaker 1: Um he's something of a traditionalist and an institution was 565 00:36:00,280 --> 00:36:04,120 Speaker 1: these of the the confirmation process, so I think he 566 00:36:04,160 --> 00:36:06,480 Speaker 1: appreciates all that and the deep history and has been 567 00:36:06,520 --> 00:36:10,200 Speaker 1: involved in it. He shepherded five or so Supreme Court 568 00:36:10,280 --> 00:36:13,239 Speaker 1: justices through the confirmation process when he shaired this in 569 00:36:13,280 --> 00:36:18,520 Speaker 1: a Judiciary committee in the late eighties, and so he's 570 00:36:18,600 --> 00:36:22,080 Speaker 1: intimately familiar with the problems in the confirmation process then 571 00:36:22,120 --> 00:36:26,160 Speaker 1: also with the Supreme Court. And there may be pressure, 572 00:36:26,560 --> 00:36:30,359 Speaker 1: but any of this in these proposals, especially the term 573 00:36:30,400 --> 00:36:34,840 Speaker 1: limits and the idea of packing the cord or increasing 574 00:36:34,960 --> 00:36:38,759 Speaker 1: the number of justices, would at least have to go 575 00:36:38,960 --> 00:36:44,279 Speaker 1: through Congress, and as presently constituted, it's not realistic to 576 00:36:44,400 --> 00:36:48,640 Speaker 1: expect that legislation would garner sixty votes in the Senate. 577 00:36:49,000 --> 00:36:51,879 Speaker 1: And so maybe it's just an academic debate, but that's 578 00:36:51,880 --> 00:36:55,600 Speaker 1: a debate worth having, and they have had it. Term limits, 579 00:36:55,680 --> 00:36:59,600 Speaker 1: I think is less controversial than than changing the composition 580 00:36:59,640 --> 00:37:02,440 Speaker 1: of the word, because I think what Roosevelt tried to 581 00:37:02,480 --> 00:37:06,200 Speaker 1: do in the thirties has been discredited and most people, 582 00:37:06,480 --> 00:37:09,479 Speaker 1: I think still believe that that's not a very good 583 00:37:09,560 --> 00:37:14,040 Speaker 1: idea and it would politicize the Court even more. Term limits, 584 00:37:14,040 --> 00:37:17,240 Speaker 1: I think is more acceptable to a broader range of people, 585 00:37:17,239 --> 00:37:20,120 Speaker 1: but it has some issues too, and I think even 586 00:37:20,120 --> 00:37:22,440 Speaker 1: on the Commission there were a number who thought it 587 00:37:22,520 --> 00:37:26,279 Speaker 1: was not a very good idea. Um the Commission lays 588 00:37:26,320 --> 00:37:29,040 Speaker 1: all that out and I think in a productive way, 589 00:37:29,200 --> 00:37:32,760 Speaker 1: and so hopefully people can continue to study these issues 590 00:37:32,840 --> 00:37:37,919 Speaker 1: and decide whether any of the proposals is good enough 591 00:37:37,960 --> 00:37:41,319 Speaker 1: to embody and legislation and move forward. Let me ask 592 00:37:41,320 --> 00:37:47,640 Speaker 1: you this, should the Supreme Court be reflecting the position 593 00:37:47,800 --> 00:37:52,759 Speaker 1: or the views of a majority of Americans? Yes, to 594 00:37:52,800 --> 00:37:55,880 Speaker 1: some extent. I mean, we hope the Supreme Court reflects 595 00:37:55,920 --> 00:37:58,840 Speaker 1: the will of the people. But the Supreme Court also 596 00:37:59,560 --> 00:38:03,760 Speaker 1: believe eeds that it must be adhered to the Constitution, 597 00:38:04,040 --> 00:38:08,040 Speaker 1: and I think that's where people can differ sometimes on 598 00:38:08,200 --> 00:38:14,359 Speaker 1: specific issues. Abortion is one of those issues that has 599 00:38:14,640 --> 00:38:18,120 Speaker 1: been with us for a long time, but many others 600 00:38:18,160 --> 00:38:21,279 Speaker 1: over the history of the Court in the country have 601 00:38:21,520 --> 00:38:26,640 Speaker 1: been issues that are controversial, and hopefully most of the 602 00:38:26,680 --> 00:38:29,640 Speaker 1: decisions will reflect the will of the people. Um. But 603 00:38:29,760 --> 00:38:33,719 Speaker 1: there are also other ways to attack that problem if 604 00:38:33,719 --> 00:38:35,880 Speaker 1: you see it as a as a problem, and that 605 00:38:36,080 --> 00:38:38,680 Speaker 1: is to vote people out of office and then vote 606 00:38:38,680 --> 00:38:42,000 Speaker 1: in people who will change the composition of the court, 607 00:38:42,080 --> 00:38:46,640 Speaker 1: for example when their vacancies, or even entertain this legislation. 608 00:38:47,040 --> 00:38:50,160 Speaker 1: Thanks Carl. That's Professor Carl Tobias of the University of 609 00:38:50,239 --> 00:38:53,040 Speaker 1: Richmond Law School. And that's it for this edition of 610 00:38:53,080 --> 00:38:55,759 Speaker 1: The Bloomberg Law Show. Remember you can always get the 611 00:38:55,800 --> 00:38:59,279 Speaker 1: latest legal news honor Bloomberg Law Podcast. You can find 612 00:38:59,280 --> 00:39:03,880 Speaker 1: them on Apple Podcasts, Spotify, and at www dot Bloomberg 613 00:39:03,920 --> 00:39:07,719 Speaker 1: dot com, slash podcast Slash Law, and remember to tune 614 00:39:07,719 --> 00:39:10,520 Speaker 1: into The Bloomberg Law Show every week night at ten 615 00:39:10,600 --> 00:39:14,400 Speaker 1: BM Wall Street Time. I'm June Grosso and you're listening 616 00:39:14,480 --> 00:39:15,160 Speaker 1: to Bloomberg