Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: You can still listen to Collaine Maxwell's Ted Talk from
Speaker 1: She's engaging as she expresses her concerns for the ocean
Speaker 1: off I was. I went down into the deep, and
Speaker 1: I went down to over fift hundred feet and at
Speaker 1: dred feet, I switched on the lights, hoping to see
Speaker 1: a new mythical sea creature, but in fact, what I
Speaker 1: saw was a plastic hanger. I was so absolutely devastated
Speaker 1: that it was at that moment that I realized that
Speaker 1: I was really going to dedicate the rest of my
Speaker 1: life to taking an involvement with and bringing an education
Speaker 1: around the ocean. But apparently Maxwell was not so devastated
Speaker 1: to see underage girls being sexually abused by Jeffrey Epstein.
Speaker 1: According to the testimony of alleged victims at Maxwell's ex
Speaker 1: trafficking trial, for two weeks, jurors have been immersed in
Speaker 1: the luxurious and lascivious world of Epstein and Maxwell as
Speaker 1: prosecutors try to show them how young girls were drawn
Speaker 1: in by the pair and then trapped in a cycle
Speaker 1: of sexual abuse. My guest, his former federal prosecutor Jessica Roth,
Speaker 1: a professor at Cardozo Law School. Is the broad question
Speaker 1: for the juries sort of whether they were partners in
Speaker 1: crime or whether she's being used as a scapegoat for
Speaker 1: his crime. So the defense seems to be pursuing a
Speaker 1: defense strategy or theory of the case that she is
Speaker 1: there is a scapegoat for Jeffrey Epstein because he killed
Speaker 1: himself and did not go to trial, and so therefore
Speaker 1: she is essentially a proxy through which the victims can
Speaker 1: have their day in court. But I don't think that
Speaker 1: the prosecution sees it through that lens. The prosecution is
Speaker 1: presenting the case that, regardless of what mayor happened to
Speaker 1: Jeffrey Epstein, that Maxwell is independently guilty and culpable and
Speaker 1: is deserving of prosecution and conviction. How are the prosecutors
Speaker 1: building their case against Maxwell? Well, the most important evidence
Speaker 1: is the testimony of the victims who have testified in
Speaker 1: detail about their abuse and the involvement of Maxwell in
Speaker 1: that abuse, including the roles she played in communicating with
Speaker 1: them to initially establish a relationship and in some cases
Speaker 1: to set up the massages that were sexual in nature
Speaker 1: that they performed. On Epstein. So their testimony is really critical,
Speaker 1: and that's why you see the defense attorneys going after
Speaker 1: them on cross examination and after their credibility so aggressively.
Speaker 1: But the prosecution is also relying on testimony from people
Speaker 1: who worked for Epstein, like his pilot, like his household staff,
Speaker 1: to establish the relationship between Epstein and Maxwell, and how
Speaker 1: close it was, how integraly intertwined she was with Epstein's affairs,
Speaker 1: to to corroborate the account of the victims in so
Speaker 1: far as it makes it more likely that Maxwell was
Speaker 1: in fact present at times when Epstein would have been
Speaker 1: meeting the victims and abusing the victims, and just so
Speaker 1: shoring up the narrative that she was a critical player
Speaker 1: in Epstein's life in many different ways, but particularly in
Speaker 1: his residential life, managing his homes and being involved in
Speaker 1: the running of the households where so much of the
Speaker 1: abuse allegedly occurred. The alleged victims have really painted a
Speaker 1: picture of Maxwell befriending them and luring them in. Kate said,
Speaker 1: after her first sexual encounter with Epstein, Maxwell said, did
Speaker 1: you have fun. You're such a good girl, and I'm
Speaker 1: so happy you are able to come the words she
Speaker 1: chose seemed to fit the prosecution's case precisely. There has
Speaker 1: been an extraordinary level of detail in the victims testimony,
Speaker 1: and so much of it is consistent between the victim
Speaker 1: witnesses in terms of describing the role that backed well played.
Speaker 1: So the jury is going to be left to decide
Speaker 1: whether they believe the witnesses about not only the abuse
Speaker 1: that they suffered, but Maxwell's role in it, and the
Speaker 1: level of detail I think is something that is going
Speaker 1: a weigh heavily in the jury's evaluation of the testimony.
Speaker 1: Has the defense made some inroads by showing inconsistencies in
Speaker 1: some of the alleged victims statements were a trial, they
Speaker 1: were including Maxwell being present during sexual encounters with Epstein,
Speaker 1: but she was not included in their statements to the FBI.
Speaker 1: So it does seem that there were some inroads made
Speaker 1: in in teaching the credibility of some of the witnesses
Speaker 1: by pointing to apparent inconsistencies between their testimony on the
Speaker 1: stand and their previous statements. We don't know precisely what
Speaker 1: they told the FBI agents, for example, in those prior statements.
Speaker 1: I believe some of the witnesses pushed back a bit
Speaker 1: and did not acknowledge that they necessarily had made a
Speaker 1: different statement. For with the witnesses suggesting perhaps the FBI
Speaker 1: agent got the details wrong in the agents report, and
Speaker 1: that's certainly possible, but even if it is true, that
Speaker 1: doesn't necessarily destroyed the witnesses credibility. It is often the
Speaker 1: case that witnesses give accounts that are different sometimes and
Speaker 1: fairly significant detailed when they tell the story multiple times. Um,
Speaker 1: that's just an aspect of human memory and how human
Speaker 1: beings tell the story. And I think anybody who's tried
Speaker 1: a case would tell you that it is more often
Speaker 1: than not their experience that people give different details at
Speaker 1: different times when they tell a story, And it doesn't
Speaker 1: mean they're not being truthful. It can also matter what
Speaker 1: the context was when somebody told a story on one
Speaker 1: occasion versus another. And so, for example, I believe one
Speaker 1: of the victims who testified offered, by way of possible
Speaker 1: explanation for any inconsistency, that she wasn't being asked directly
Speaker 1: about Maxwell's involvement during a previous interview, whereas now during
Speaker 1: this trial she was being asked about that directly so
Speaker 1: on redirect or um in closing argument. It's often possible
Speaker 1: to provide that kind of context to a jury UM
Speaker 1: and therefore diffuse what might initially seem to be a
Speaker 1: very significant line of impeachment on cross examination directed it
Speaker 1: inconsistent statements. I've heard so many cases of multimillion dollars
Speaker 1: settlements that it doesn't affect me that these women got
Speaker 1: multimillion dollar payouts from a settlement fund set up by
Speaker 1: the Epstein estate. But the defense really played on that well.
Speaker 1: It certainly seems that the defense is pushing as one
Speaker 1: line of arguments that the witnesses are not to be
Speaker 1: believed because they have a financial motive that is causing
Speaker 1: them to testify about the abuse and Maxwell's involvement in it.
Speaker 1: It's not clear how much that's going to carry sway
Speaker 1: with the jury. UM. Was also not entirely clear is
Speaker 1: how that financial motive ties into Maxwell directly. In other words,
Speaker 1: what is the defense going to say in closing about
Speaker 1: how the victims are incentivized to testify about Maxwell's involvement, specifically,
Speaker 1: UM if they have already received the payment from the
Speaker 1: fund created for Epstein's victims. The defense may have more
Speaker 1: say about that, about some kind of additional financial incentive
Speaker 1: um that they argue that victims have by virtue of
Speaker 1: naming Maxwell. But it's not entirely entirely clear to me
Speaker 1: yet in what direction the defense is going to take
Speaker 1: that line of arguments. Might the jury be prejudiced against
Speaker 1: Maxwell because of the descriptions of this opulent lifestyle, the yachts,
Speaker 1: the private jets, the sumptuous surroundings. In theory, it could,
Speaker 1: and I would imagine that the judge would instruct the
Speaker 1: jury at the defense's request, not to consider wealth or
Speaker 1: the lavishness of one's lifestyle against Maxwell. But it's clearly
Speaker 1: relevant to the government's theory of the case to establish
Speaker 1: what that lifestyle was. It tells the story of how
Speaker 1: this abuse allegedly occurred. Because, of course, one of the
Speaker 1: ways in which Maxwell and f being allegedly lured in
Speaker 1: the victims was to offer them lavish gifts and access
Speaker 1: to this lavish lifestyle Sile, and so it would be
Speaker 1: pretty difficult to tell that story and explain to the
Speaker 1: jury how this scheme allegedly occurred without providing at least
Speaker 1: some of those details. I'm wondering if any of the
Speaker 1: jurors might fault the victims, which you shouldn't do. But
Speaker 1: my fault the victims because they were all paid by
Speaker 1: Epstein in different ways, and some of their contacts with Epstein.
Speaker 1: One of the victims, the contacts lasted from the age
Speaker 1: of seventeen to the age of thirty. And I'm wondering
Speaker 1: if that might, you know, play in the minds of
Speaker 1: some of the jurism. I think that is something that
Speaker 1: the prosecution would be thinking about as a concern. UM.
Speaker 1: I believe the prosecution put on an expert witness to
Speaker 1: address some of the psychological dynamics involved in sexual abuse,
Speaker 1: to address some of those issues, and to explain to
Speaker 1: a jury that may not otherwise be familiar with some
Speaker 1: of the dynamics. UM, why, for example, a victim might
Speaker 1: remain in communication and contact with their abuser. UM. Certainly
Speaker 1: that those are concerns that arise in cases involving sexual abuse.
Speaker 1: It's not unique to this one, UM. But through expert testimony, UM,
Speaker 1: and also on some of the redirect examination of the witnesses,
Speaker 1: really probings of these questions. You know, why did you
Speaker 1: stay in contact with him? Um? The prosecution hopes to
Speaker 1: overcome those the questions that might arise in the juror's mind,
Speaker 1: and then also to address it finally in their nation.
Speaker 1: What does the prosecution really have to prove to this
Speaker 1: jury about Maxwell that she brought the girls in and
Speaker 1: facilitated his sexual encounters with them. Is that enough? The
Speaker 1: government is going to need to show that Maxwell was
Speaker 1: a knowing participants in the sex trafficking activities that Epstein
Speaker 1: was engaged in. So as I understand that the defense
Speaker 1: theory is that Maxwell was part of that Stein's life,
Speaker 1: but that he compartmentalized his life, and so she was
Speaker 1: unaware of what it was that he was doing with
Speaker 1: the minor girls behind closed doors. And so the government
Speaker 1: needs to persuade the jury that Maxwell was involved in
Speaker 1: those sexual activities, that she played a number of roles
Speaker 1: and helping them to occur, and she did that knowing
Speaker 1: full well what it was that was happening behind closed doors,
Speaker 1: and as the government alleges, with Maxwell herself being involved
Speaker 1: in some of those activities. So it's a question of
Speaker 1: both the actions that she engaged in and her intent.
Speaker 1: Maxwell's attorneys haven't said if they'll call any witnesses yet.
Speaker 1: It seems unlikely that Maxwell herself will take to stand,
Speaker 1: but is that a possibility. There is always the possibility
Speaker 1: that she will take the stands. I think it's too
Speaker 1: soon to stay definitively one way or the other whether
Speaker 1: they're going to do that here. They're clear risks for
Speaker 1: her and taking the stands, But I'm sure her lawyers
Speaker 1: are evaluating what they think the strength of the government's
Speaker 1: evidence is at this point, and whether it's worth having
Speaker 1: a discussion about Maxwell taking the stand. The defense had
Speaker 1: given notice about several expert witnesses who they wanted to call,
Speaker 1: including psychological experts, to talk about. For example, what the
Speaker 1: defense described in pre trial filings is the halo effect
Speaker 1: that they would argue that Jeffrey Epstein benefited from, which
Speaker 1: caused people around him to essentially want to be in
Speaker 1: his presence and to see the best in him, and
Speaker 1: as a possible explanation for why Maxwell might not have
Speaker 1: known what he was doing in the parts of his
Speaker 1: life of the compartments that they argue he kept from Maxwell.
Speaker 1: So there may be expert testimony of that nature. There
Speaker 1: may be expert testimony intended to explicitly rebut some of
Speaker 1: the expert testimony about sexual abuse in its dynamics that
Speaker 1: the government offered. And beyond that, we don't know exactly
Speaker 1: what witnesses the defense they call. Whether it would be
Speaker 1: fact witnesses who might talk about the facts that support
Speaker 1: this notion that Maxwell was removed from f Stein in
Speaker 1: important ways that would undermine her presence and knowledge of
Speaker 1: his sexual activities with miners. In theory, they could call
Speaker 1: character witnesses about her character that would tend to undercut
Speaker 1: the charges that have been brought against her. So I
Speaker 1: think we really need to wait and see. It seems
Speaker 1: like there's a parallel between these two high profile cases
Speaker 1: where women are defendants on the East Coast and the
Speaker 1: West Coast. And I'm referring to the Elizabeth Holmes trial
Speaker 1: where she's blaming her former romantic partner for the things
Speaker 1: that she's charged with, and here you have Maxwell blaming
Speaker 1: her former romantic partner for the things that she's charged with.
Speaker 1: There are some interesting parallels to consider between the two cases. Obviously,
Speaker 1: the charges are so different, Homes case involving fraud, the
Speaker 1: Maxwell case involving sexual ideas of the miners. But you
Speaker 1: are right that there is a parallel in the sense
Speaker 1: of in each case you have a woman on trial
Speaker 1: and a male figure being this very dominant presence at
Speaker 1: the trial and being blamed for being essentially exclusively responsible
Speaker 1: for the crimes that have been alleged. In the Holmes case,
Speaker 1: Tony Balwanti will stand trial her chief operating officer and
Speaker 1: also her one time boyfriend, who she says essentially misled
Speaker 1: her about Parados and also controlled her through an abusive relationship.
Speaker 1: And she was of course eighteen or younger when she
Speaker 1: met him. But Elizabeth Holmes was the CEO and founder
Speaker 1: of Sara NOS. In the Maxwell case, I mean, Maxwell
Speaker 1: was clearly subordinate to Epstein in terms of the role
Speaker 1: she played in his affairs. There's no claim that she
Speaker 1: was essentially the CEO. She was very much, it would seem,
Speaker 1: an employee of Epstein, and so there's a difference there
Speaker 1: in the relative roles plate. But it will be interesting
Speaker 1: to see in the Maxwell case, as the defense starts
Speaker 1: to put forward its case, this isn't it does put
Speaker 1: forward a defense case if there is an attempt to
Speaker 1: portray that relationship between Epstein and Maxwell in a way
Speaker 1: that echo themes of the Homes trial. In any suggestion
Speaker 1: that Maxwell was sort of under steen sway in some manner.
Speaker 1: I don't think we're going to see that, but it
Speaker 1: is remarkable that we do have these two such high
Speaker 1: profile trials going on simultaneously now onto coast. Thanks Jessica.
Speaker 1: That's Professor Jessica Roth of Cardozo Law School. The Supreme
Speaker 1: Court appears ready to give another win to parents seeking
Speaker 1: public funds for religious education. At oral arguments this week,
Speaker 1: all the courts conservative justices suggested that Maine was violating
Speaker 1: the Constitution's free exercise clause by barring the use of
Speaker 1: public dollars at religious schools. The conservative justices and the
Speaker 1: liberal Johnstices appeared to have opposite views on what constitutes
Speaker 1: discrimination on the basis of religion. Here are johnstice Is,
Speaker 1: Brett Kavanaugh, and Sonya So to Mayor, and the first
Speaker 1: neighbor says, we're going to send our child children to secular,
Speaker 1: our private school. They get the benefit. The next door
Speaker 1: neighbor says, well, we want to send our children to
Speaker 1: a religious private school, and they're not going to get
Speaker 1: the benefit. And I don't see how your suggestion that
Speaker 1: the subsidy changes the analysis. That's just discrimination on the
Speaker 1: basis of religion. These parents are put through the same
Speaker 1: choice that every other parent in Maine is put to
Speaker 1: either get a free public EDGIC secular education or pay
Speaker 1: for your religious training. They're being treated as everybody else's justices.
Speaker 1: Stephen Bryan Elena Kagan question why Maine should be required
Speaker 1: to fund the teachings of the schools in question. Schools
Speaker 1: beliefs that they don't want to have gay students. They can't,
Speaker 1: they can't have gay teachers. They have to teach that
Speaker 1: the man is the boss of a woman in a
Speaker 1: bunch of other things like that. I mean, these schools
Speaker 1: are overtly discriminatory. They're proudly discriminatory. Other people won't understand
Speaker 1: why in the world their tax payer dollars are going
Speaker 1: to discriminatory schools. My guest is Richard Garnett, a professor
Speaker 1: at Notre Dame Law School. Rick explain the issue here
Speaker 1: in the context of prior cases. So the question presented
Speaker 1: here has to do with a program in the state
Speaker 1: of Maine that provides public funding to students who live
Speaker 1: in a district that doesn't have a traditional public school.
Speaker 1: It provides public funding for them to attend schools in
Speaker 1: other districts, or to use public funds to attend a
Speaker 1: private school, and students have used these public funds to
Speaker 1: attend private schools all over the country wide variation of institutions.
Speaker 1: But Maine has a rule that the funds can't be
Speaker 1: used at a school if that school is deemed to
Speaker 1: be quote unquote sectarian. And so the question is whether
Speaker 1: that exclusion by the State of Maine is unconstitutional discrimination
Speaker 1: against religion. The Supreme Court has made it clear that
Speaker 1: governments are not allowed to discriminate on the basis of
Speaker 1: religion or to hold it against citizens that they make
Speaker 1: religious choices, and so on. It has been a couple
Speaker 1: of cases in the last few years decided by the
Speaker 1: Court which have been kind of inching up to this
Speaker 1: main case. There was a case out of Missouri called
Speaker 1: Trinity Lutheran and a case out of Montana called Espinosa,
Speaker 1: And in both of those cases, again relatively recently, the
Speaker 1: Supreme Court said that when the government makes benefits available
Speaker 1: according to certain criteria, it can't discriminate against beneficiaries simply
Speaker 1: on the ground of the beneficiaries religious status. And what
Speaker 1: was Maine's position here, According to the State of Maine,
Speaker 1: they would say, well, we're not discriminating on the basis
Speaker 1: of religious status. Rather, we're discriminating or we're excluding schools
Speaker 1: that have a pervasively religious character that are involved in
Speaker 1: religious instruction. I think the word that the lawyer for
Speaker 1: the State of Maine used repeatedly was we exclude schools
Speaker 1: that are involved in instilling religious faith in children. So
Speaker 1: Maine would permit funds to go to a school that was,
Speaker 1: you know, religiously affiliated, but otherwise didn't really have any
Speaker 1: religious content. What they won't do, though, and they have
Speaker 1: you know, government officials whose job it is to kind
Speaker 1: of evaluate these schools and decide whether they are sectarian,
Speaker 1: which I guess is Maine's term for pervasively religious, or
Speaker 1: whether they're merely religiously affiliated. And the challengers are saying, well,
Speaker 1: this is the same thing if you're discriminating against people
Speaker 1: because of their religious beliefs want to educate their kids
Speaker 1: in a meaningfully religious school. Essentially, you're saying that benefits
Speaker 1: that they're otherwise entitled to as residents of the State
Speaker 1: of Maine in a district without a school, that they
Speaker 1: lose them they're being punished in a sense for their
Speaker 1: religious choice, and the lawyers for Maine and also the
Speaker 1: United States took this position would say, no, that's not
Speaker 1: what's happening here. Instead, what's happening is it Maine is
Speaker 1: simply deciding what kind of education it wants to subsidize,
Speaker 1: and Maine has decided that it only wants to subsidize
Speaker 1: secular or non sectarian education. So this is kind of
Speaker 1: the third in a series of cases that present similar issues,
Speaker 1: and I think the reason why it's closely watched is
Speaker 1: because the other two cases seem to be pointing towards
Speaker 1: this one, and so, like I guess, the issue is
Speaker 1: whether the Court is going to kind of continue on
Speaker 1: the same path that those two previous cases sketched out,
Speaker 1: or whether there's something different about Maine's program that will
Speaker 1: lead the justices to say, no, this exclusion is permissible.
Speaker 1: Did it appear that a majority of the conservative justices
Speaker 1: seemed ready to rule against Maine. That would be my impression,
Speaker 1: you know, with all the caveats that justices asked questions
Speaker 1: all the time that don't necessarily tell us which way
Speaker 1: they're going to rule. The first of this series of cases,
Speaker 1: I mentioned Trinity Lutheran from Missouri that was seven to two.
Speaker 1: It wasn't an ideologically divided case the more recent one Espinosa,
Speaker 1: that was five to four, And so I suppose it
Speaker 1: wouldn't be surprising if this case out of Maine was
Speaker 1: also five to four or six to three. Given the membership,
Speaker 1: the questions that the more conservative justices were asking seemed
Speaker 1: to be pressing Maine on the claim that this isn't
Speaker 1: really discrimination against religion. So there were a lot of
Speaker 1: hypos and kind of intriguing questions trying to flesh out
Speaker 1: the question whether what Maine is doing here is really
Speaker 1: just kind of a neutral way of deciding what it
Speaker 1: wants to fund, or is this really the same kind
Speaker 1: of exclusion on the basis of religion that the Court
Speaker 1: has already said is impermissible and tell us about the
Speaker 1: liberal justices concerns. So Justice Brier sounded a theme that
Speaker 1: has been important to him for at least two decades.
Speaker 1: He said, look, the state has an interest and of course,
Speaker 1: remember he's been in dissent in a lot of these
Speaker 1: cases over the decades. Though in a sense he's uh
Speaker 1: a little bit of a bind, as he acknowledged in
Speaker 1: the argument, but he said, the state of Maine has
Speaker 1: an interest in deciding that it will reduce the possibilities
Speaker 1: of political strife political division. If Maine just says, look,
Speaker 1: we are going to have a policy of only sending
Speaker 1: public funds to UM to non religious schools, that that
Speaker 1: will be a way of kind of preserving peace and
Speaker 1: a pluralistic society. And the more conservative justices were sort
Speaker 1: of pushed back on that and said, well, that's not
Speaker 1: a constitutional standard, And in any event, how do we
Speaker 1: know whether it's more or less divisive to exclude religious
Speaker 1: schools rather than to include them. I think for Justice
Speaker 1: Kagan and Um, she was, as she often is, very
Speaker 1: focused and precise in her questioning. She she conceded that,
Speaker 1: of course, when the government's regulating, it doesn't make sense
Speaker 1: to distinguish between, you know, discrimination on the basis of
Speaker 1: religious status and discrimination on the basis of religious use.
Speaker 1: But she proposed that when you're talking about funding or
Speaker 1: what she called subsidization, that in that particular context, states
Speaker 1: should have the leeway to decide whether or not they
Speaker 1: want to fund I think it's not a question of prohibiting,
Speaker 1: but whether or not UM they want to fund certain
Speaker 1: kinds of education or not. It's a fascinating question that
Speaker 1: comes up in law a lot is how do you
Speaker 1: decide when what the government is doing is penalizing somebody
Speaker 1: versus simply declining to benefit them. Is that a tomato
Speaker 1: tomato kind of thing? Or there are there meaningful distinctions there,
Speaker 1: And I think Justice Kagan was suggesting that there there
Speaker 1: is a distinction that can be drawn between discrimination in
Speaker 1: the context of a regulation or discrimination in the context
Speaker 1: of access to a general benefit on the one hand,
Speaker 1: and she wouldn't call it discrimination, I think, but a
Speaker 1: government decision about what it wants to fund. Would the
Speaker 1: court have to overrule the two thousand four Supreme Court
Speaker 1: precedent in the case that upheld a Washington State post
Speaker 1: secondary grant program that excluded theology students. Interesting that that's
Speaker 1: the lock feed Davy case um, And there was some
Speaker 1: exchanges between the lawyers and the justices on this point.
Speaker 1: I think it was pretty clear that they would not
Speaker 1: have to overrule it. That is, Lock feed Davy was
Speaker 1: about a particular situation where the state was declining to
Speaker 1: fund actual training for the ministry. That was the case
Speaker 1: where the state was perfectly willing to fund students going
Speaker 1: to religious schools, including pretty pervasively religious schools, and students
Speaker 1: were allowed to study religion if they wanted to to
Speaker 1: take religious ministry classes. The exclusion was very narrowly focused
Speaker 1: on majoring in basically pre minister studies, and Um the
Speaker 1: lawyer for those challenging this main law said you don't
Speaker 1: have to overrule lock the Davey to say this is
Speaker 1: a different case. Some look at this as a slippery
Speaker 1: slope that could lead to public funds being used for
Speaker 1: church sponsored charter schools. The really intriguing question is whether
Speaker 1: a charter school program is analogous to the benefits program here.
Speaker 1: Charter schools, at least in theory, are government schools, and
Speaker 1: so it could be that states are perfectly permitted because
Speaker 1: they're going to regard them as public schools. It follows
Speaker 1: that they're not going to be religious schools. But of course,
Speaker 1: and this is what I think the commentary is getting at,
Speaker 1: if we think of a charter school authorization program as
Speaker 1: being more like a general dollarship or school choice program,
Speaker 1: well then it would look kind of weird if having
Speaker 1: a charter where a benefit but it was being denied
Speaker 1: to religious would be charter school operators but being granted
Speaker 1: to charter school operators who wanted to have stem schools
Speaker 1: or art schools or what have you. So that will
Speaker 1: be a question that will arise. It's I think it's
Speaker 1: difficult to predict and how exactly how it would come
Speaker 1: out because different states structure there charter school authorization processes differently.
Speaker 1: But at least for now, it strikes me that there
Speaker 1: is a distinction that can be drawn between on the
Speaker 1: one hand, states that decide to let some of their
Speaker 1: public schools be run as charters, but they're still public schools,
Speaker 1: and on the other hand, a program like Mains, where
Speaker 1: Maine decided to permit the funding of private schools. The
Speaker 1: lawyers for the state of Maine were very candid. You know,
Speaker 1: kids can use as funds fancy prep schools like Hanover.
Speaker 1: They've used them in states outside of Maine. Again, they
Speaker 1: can even use them as some religiously ahiliated schools, but
Speaker 1: they're excluding certain religious schools on the basis of their
Speaker 1: religious character. And I suspect that that that's different from
Speaker 1: the charter school question. But the charter school question will
Speaker 1: be certainly on a lot of people's minds, and I
Speaker 1: suspect there'll be some litigation about it. Thanks so much
Speaker 1: for being on the show. Rick. That's Professor Richard Garnett
Speaker 1: of Notre Dame Law School. The Senate Judiciary Committee deadlocked
Speaker 1: along party lines on advancing three of President Joe Biden's
Speaker 1: judicial nominees to the full Chamber, including an LGBT trailblazer
Speaker 1: and a pick for the largest appellate court. Joining me
Speaker 1: is Professor Carl Tobias of the University of Richmond Law School. Carl,
Speaker 1: let's start with Holly Thomas, who is nominated to the
Speaker 1: ninth Circuit. Why was the committee deadlocked on her nomination. Well,
Speaker 1: the Republican Senators, especially Cruz Cotton and Holly, we're very
Speaker 1: critical of litigation that she ended before she became a
Speaker 1: judge in the state system in California for the a
Speaker 1: c l U and for the Department of Justice, principally
Speaker 1: in the area of transgender students in schools. But she
Speaker 1: seems to be quite qualified, and she said she clearly
Speaker 1: understood the difference in being an advocate as a lawyer
Speaker 1: and being a judge, and she has done that for
Speaker 1: several years in the California system, but Senator Graham at
Speaker 1: first voted for her, but then changed his mind, and
Speaker 1: so it became an eleven eleven tie, and so she
Speaker 1: would have to be discharged from committee and would join
Speaker 1: Jennifer Sung for the Ninth Circuit as well, who had
Speaker 1: a tie vote, and I expect that both of them
Speaker 1: will be coming up soon for cloture and final vote.
Speaker 1: So she would be the second black woman to ever
Speaker 1: serve on the Ninth Circuit. Tell us a little about
Speaker 1: her background. Well, I believe she was with the A C.
Speaker 1: L U for some time as a litigator, and I
Speaker 1: think it has argued cases in more than half the circuits.
Speaker 1: And I believe she was at the Department of Justice,
Speaker 1: maybe in the Civil Rights Division, and has litigated civil
Speaker 1: rights issues there and then has spent several years on
Speaker 1: the California Superior Court in Los Angeles. One of the
Speaker 1: other nominees that was dead luck was Charlotte Sweeney, who
Speaker 1: was nominated to the District Court for the District of Colorado. Well,
Speaker 1: she's been in practice, I think for a couple of decades.
Speaker 1: It seems very experienced and has won some high profile
Speaker 1: cases involving issues of equality. For lgbt Q people, and
Speaker 1: she would be, if confirmed, the first woman lgbt Q
Speaker 1: individual west the Mississippi to be a district judge. UM.
Speaker 1: And there was not very much discussion of her UM
Speaker 1: in committee UM, and the senators seemed satisfied and didn't
Speaker 1: ask her a whole lot of questions during her hearing.
Speaker 1: So it's puzzling exactly why UM she didn't get more votes,
Speaker 1: but that's where she sits, and they could be a
Speaker 1: discharged petition on her as well. And what do you
Speaker 1: know about Hernon Vera, who was nominated to the Central
Speaker 1: District of California to be a district court judge. Well,
Speaker 1: he also I think it's on the Superior Court in
Speaker 1: um California, and very little questioning or discussion about him UM.
Speaker 1: But I do believe he had a background in public
Speaker 1: interest law for a large firm that conducts that kind
Speaker 1: of litigation, so maybe that was of concern to the
Speaker 1: Republican senators. But in any event, he had a similar
Speaker 1: eleven eleven high vote. But I don't believe that he's
Speaker 1: been controversial on the state bench there where he sat
Speaker 1: in Los Angeles. So could it be that Biden is
Speaker 1: getting to the more controversial nominees that in the beginning
Speaker 1: he nominated people who went through easily, and now he's
Speaker 1: getting to the more controversial ones. Well, it could be then,
Speaker 1: but also it seems like the Republicans are doubling down,
Speaker 1: um and raising issues that really don't seem very appropriate.
Speaker 1: For example, with Holly Thomas, they talked about Loudon County
Speaker 1: town here in Virginia, where there was an issue involving
Speaker 1: a transgender student. But subsequent to the time they questioned her,
Speaker 1: it became clear uh that the Republicans didn't have their
Speaker 1: facts correct, and she said she had never even heard
Speaker 1: heard of the case, and so, um, that's not surprising
Speaker 1: because it was very low profile. So it's just hard
Speaker 1: to know. But it does seem except for Lindsay Graham,
Speaker 1: there have been very few departures uh from party line
Speaker 1: votes in committee on the Republican side, and he has
Speaker 1: gone back to his old practice uh from the Obamba
Speaker 1: administration and earlier, saying if the President sends up a
Speaker 1: nominee who was well qualified, then Graham will vote for
Speaker 1: that person because he gives the president the benefit of
Speaker 1: the doubt. And so it's been unusual when he's voted no,
Speaker 1: but he has voted no on some and has voted
Speaker 1: pass on others, which is allowed some people to then
Speaker 1: get to the floor and be confirmed and so, but
Speaker 1: everybody else is pretty much voting no, with some exceptions,
Speaker 1: especially as to appellate nominees. So the committee did favorably
Speaker 1: report nine Biden judicial nominees, including Gabriel Sanchez for the
Speaker 1: Ninth Circuit. He is now an appellate judge there near
Speaker 1: mediate appellate court, I think in northern California. He's been
Speaker 1: there a couple of years. He worked on judicial selection
Speaker 1: and many other issues UH during the administration of Governor
Speaker 1: Jerry Brown, and I think had a strong hearing, but
Speaker 1: many questions from Republicans, especially that he would be um
Speaker 1: an activist on the court. But he said his experience
Speaker 1: as being a judge has shown him and he knew
Speaker 1: when he came on the California State Court that he
Speaker 1: had to leave his advocacy and activism behind, and I
Speaker 1: think his records shows that he did that, and so
Speaker 1: he did get Cenator Graham's vote was twelve to ten,
Speaker 1: and he does seem quite qualified, and so I think
Speaker 1: he'll easily be confirmed, but it may be closed. Let's
Speaker 1: talk a little about the White House commission that's examining
Speaker 1: changes to the Supreme Court. The report is going to
Speaker 1: be basically the pros and cons of different proposals. What
Speaker 1: do you think has come out of this commission? Well,
Speaker 1: I think the commission has three dozen very well respected
Speaker 1: UM lawyers and law professors and others who intimately familiar
Speaker 1: with the Supreme Court and confirmation process, and they did
Speaker 1: a lot of very hard and very difficult work in
Speaker 1: a very short compass of time. The President's executive order
Speaker 1: setting up the commission did not ask for recommendations, and
Speaker 1: I believe they're not going to give any. But what
Speaker 1: they did do is compile a report that I think
Speaker 1: they will issue very shortly after today's public here in
Speaker 1: late afternoon, but essentially trying to look at both sides
Speaker 1: of this issue about the Court and whether there might
Speaker 1: be ways to improve the court. And UM have done
Speaker 1: a lot of research. Didn't always agree, but I think
Speaker 1: have tried to set out the important issues and show
Speaker 1: the pros and cons. So I think it's been a
Speaker 1: valuable exercise UM and the President himself and setting it upset,
Speaker 1: I don't want recommendations. I am inclined not to agree
Speaker 1: with the idea of packing the court. Uh. And I
Speaker 1: think he's also expressed publicly he's not very interested in
Speaker 1: the prospect of some kind of term limits for the justices.
Speaker 1: But they have thrashed out all those issues, and I
Speaker 1: think in a productive, helpful, valuable way. So that exercise
Speaker 1: in itself is commendable and helpful, and hopefully we'll move
Speaker 1: the debate forward. They embraced sort of middle of the
Speaker 1: road kind of changes or continuations, like live streaming of
Speaker 1: oral arguments and advisory ethics code. But when it came
Speaker 1: to expanding the membership of the court or even term limits,
Speaker 1: they said there was profound disagreement if the Supreme Court
Speaker 1: overturns Roe v. Wade or even just as expected, affirms
Speaker 1: the Mississippi Law. Is the pressure going to build on
Speaker 1: Biden to make changes to the Supreme Court, Well, it may,
Speaker 1: but he has I think being resistant to that so far.
Speaker 1: Um he's something of a traditionalist and an institution was
Speaker 1: these of the the confirmation process, so I think he
Speaker 1: appreciates all that and the deep history and has been
Speaker 1: involved in it. He shepherded five or so Supreme Court
Speaker 1: justices through the confirmation process when he shaired this in
Speaker 1: a Judiciary committee in the late eighties, and so he's
Speaker 1: intimately familiar with the problems in the confirmation process then
Speaker 1: also with the Supreme Court. And there may be pressure,
Speaker 1: but any of this in these proposals, especially the term
Speaker 1: limits and the idea of packing the cord or increasing
Speaker 1: the number of justices, would at least have to go
Speaker 1: through Congress, and as presently constituted, it's not realistic to
Speaker 1: expect that legislation would garner sixty votes in the Senate.
Speaker 1: And so maybe it's just an academic debate, but that's
Speaker 1: a debate worth having, and they have had it. Term limits,
Speaker 1: I think is less controversial than than changing the composition
Speaker 1: of the word, because I think what Roosevelt tried to
Speaker 1: do in the thirties has been discredited and most people,
Speaker 1: I think still believe that that's not a very good
Speaker 1: idea and it would politicize the Court even more. Term limits,
Speaker 1: I think is more acceptable to a broader range of people,
Speaker 1: but it has some issues too, and I think even
Speaker 1: on the Commission there were a number who thought it
Speaker 1: was not a very good idea. Um the Commission lays
Speaker 1: all that out and I think in a productive way,
Speaker 1: and so hopefully people can continue to study these issues
Speaker 1: and decide whether any of the proposals is good enough
Speaker 1: to embody and legislation and move forward. Let me ask
Speaker 1: you this, should the Supreme Court be reflecting the position
Speaker 1: or the views of a majority of Americans? Yes, to
Speaker 1: some extent. I mean, we hope the Supreme Court reflects
Speaker 1: the will of the people. But the Supreme Court also
Speaker 1: believe eeds that it must be adhered to the Constitution,
Speaker 1: and I think that's where people can differ sometimes on
Speaker 1: specific issues. Abortion is one of those issues that has
Speaker 1: been with us for a long time, but many others
Speaker 1: over the history of the Court in the country have
Speaker 1: been issues that are controversial, and hopefully most of the
Speaker 1: decisions will reflect the will of the people. Um. But
Speaker 1: there are also other ways to attack that problem if
Speaker 1: you see it as a as a problem, and that
Speaker 1: is to vote people out of office and then vote
Speaker 1: in people who will change the composition of the court,
Speaker 1: for example when their vacancies, or even entertain this legislation.
Speaker 1: Thanks Carl. That's Professor Carl Tobias of 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 get the
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