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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. We've got some

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Speaker 1: breaking news coming over the Bloomberg terminal when it comes

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Speaker 1: to Supreme Court nominee Brett Kavanas and a Judiciary Committee

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Speaker 1: Chairman Grassley now saying that Kavanaughs hearing is going to

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Speaker 1: go forward as planned tomorrow. This after Schumer has been

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Speaker 1: calling for the hearing to actually be suspended or postponed,

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Speaker 1: saying Republicans need to immediately suspend the proceedings related to

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Speaker 1: Kavanaugh's nomination. That coming from Senate Democratic Leader Chuck Schumer.

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Speaker 1: So joining us now to bring it all together, as

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Speaker 1: Bloomberg Supreme Court reporter Greg Store to sort of help

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Speaker 1: us sort through all of the fast movie. What does

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Speaker 1: this call it? A fire hose of news and information? Yeah,

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Speaker 1: no kidding, so uh Amy. The latest this morning is

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Speaker 1: that there is a new accuser, represented by lawyer Michael Avanati,

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Speaker 1: has submitted a sworn statement to the committee saying that

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Speaker 1: Brett Kavanaugh in high school took part in efforts to

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Speaker 1: get girls intoxicated so that a number of boys could

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Speaker 1: have sex with them. Uh. These allegations are perhaps the

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Speaker 1: the the worst of any that Brett Kavanaugh has faced. Um.

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Speaker 1: They are certainly coming in at the last minute. Uh.

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Speaker 1: There were some questions about whether the hearing would go forward,

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Speaker 1: but as you said, Chuck Grassley has said, now it

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Speaker 1: will go forward. Tomorrow has planned and we have the

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Speaker 1: statement that Kavanaugh will give to the Judiciary Committee tomorrow. Um.

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Speaker 1: It has been released. Uh, and in it, Kavanaugh acknowledges

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Speaker 1: some behavior in his teenage years, including uh, drinking to excess,

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Speaker 1: but he denies the allegations uh sexualsconduct. Yeah. This statement

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Speaker 1: tracks very closely with what he said on Fox News

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Speaker 1: the other night in the interview. Uh. It is mostly

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Speaker 1: focused on the what's supposed to be the subject of

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Speaker 1: the hearing tomorrow. The first set of allegations by professor

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Speaker 1: Christine Blossie Ford about who accuses him and a friend

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Speaker 1: of taking her into her room, and she says that

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Speaker 1: Kavanaugh tried to force himself on her uh and take

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Speaker 1: off her clothes before she got away. The statement, does though, um,

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Speaker 1: you know, talk about uh, you know, other last minute smears,

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Speaker 1: as Kavanaugh puts it, and says that what's going on

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Speaker 1: is quote grotesque and obvious character assassination. What are you

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Speaker 1: expecting to hear tomorrow when they tested? I mean, I know,

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Speaker 1: just throw a dart, I guess. But what are you

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Speaker 1: what are you looking for? Well, one of the things

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Speaker 1: that certainly gonna look for, so so Senate Republicans have

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Speaker 1: hired a a sex crimes prosecutor UM, a woman named

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Speaker 1: Rachel Mitchell out of Merricopa County in Arizona. H Uh.

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Speaker 1: She will be asking at least some of the questions

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Speaker 1: that republic during the Republican time. It will be interesting

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Speaker 1: to see whether the Republican all of whom are men,

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Speaker 1: or whether the Republicans are also asking questions of of

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Speaker 1: Christine Ford and Brett Kavanaugh. Um. And certainly all eyes

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Speaker 1: are gonna be on Christine Ford because we have not

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Speaker 1: heard from her out loud yet, we don't know we

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Speaker 1: had nobody has had a chance to uh, you know,

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Speaker 1: see what she sounds like and judge her credibility, and

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Speaker 1: that uh pretty clearly is going to be very important,

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Speaker 1: important both for public opinion, and those senators who say

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Speaker 1: they're still unsure how they're going to vote. And we

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Speaker 1: do now have word from a White House a spokesman,

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Speaker 1: a new a new statement from Brett Kavanaugh on this

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Speaker 1: latest accusation, this third one with this sworn statement quote.

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Speaker 1: This is ridiculous and from the twilight zone. I don't

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Speaker 1: know who this is and this never happened. So, Um, Gregg,

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Speaker 1: does Kavanaugh make it through or not? Boy, Peter, I've

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Speaker 1: given up predicting a long time ago. Um. The senators

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Speaker 1: to to watch are are the ones that we've always

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Speaker 1: been watching. Susan Collins, Lisa Murkowski, Uh, two women who

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Speaker 1: who support abortion rights and and have suggested they are

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Speaker 1: concerned about these allegations. And then Senator Jeff Flake, who

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Speaker 1: is on the committee. Uh no, big friend of of

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Speaker 1: President Donald Trump. Uh. You know, they have all sort

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Speaker 1: of collectively said we want to hear from these women.

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Speaker 1: They're only gonna hear from one tomorrow, Christine Ford. It

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Speaker 1: will be interesting to to see whether these new allegations

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Speaker 1: and somebody else who is not going to be heard tomorrow,

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Speaker 1: whether that makes any difference in how those senators think

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Speaker 1: about this. Talking about the Alpha davits, they're talking about

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Speaker 1: other people who can actually speak. We're not going to

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Speaker 1: hear from anybody that right, Kavanaugh and Ford, and that's

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Speaker 1: it correct. At the hearing tomorrow, we will hear from

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Speaker 1: Kavanaugh and Ford. It's, of course certainly possible that uh,

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Speaker 1: one or more of these women will choose to speak

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Speaker 1: in some other forum. But but in terms of the

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Speaker 1: hearing tomorrow, it's just those two witnesses. Is there an

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Speaker 1: a chance that Republicans could acquiesce and allow the FBI

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Speaker 1: to investigate all of this, Well, you know the Democrats request,

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Speaker 1: I'd hate to say there's no chance. They've been pretty

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Speaker 1: firm on that, um and and they tried it out.

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Speaker 1: Some video of Joe Biden back during the Clarence Thomas

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Speaker 1: hearing saying that, you know, an FBI investigation is not

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Speaker 1: going to be conclusive in that case, um and Republicans

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Speaker 1: are saying, look, um, you know, FBI investigation is only

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Speaker 1: going to delay this. It's not going to give give

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Speaker 1: us a clear answer to this obviously. Uh. You know,

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Speaker 1: things are changing quickly, but for the time being, it

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Speaker 1: doesn't seem like Republicans are going that direction. All right, Greg,

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Speaker 1: we got about a half a minute ago. I'm wondering

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Speaker 1: he gets let's say he gets confirmed, he seated on

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Speaker 1: the Supreme Court. Is this a cloud that's gonna hover

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Speaker 1: over the Supreme Court? I mean, what does this do

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Speaker 1: to people's opinion of the court one way or the other? Well,

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Speaker 1: I mean, because it's part Yeah, it's so partisans getting

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Speaker 1: even more partisan. And if he gets confirmed, you're gonna

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Speaker 1: have somebody who, at a minimum a lot of people

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Speaker 1: in the country are gonna alide his way onto the

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Speaker 1: Supreme Court. Uh. And certainly that will take a while

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Speaker 1: to to dissipate, and that could hurt the credibility of

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Speaker 1: the court. It certainly could. And uh, I'm sure Chief

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Speaker 1: Justice John Robertson in particular is going to be very

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Speaker 1: mindful of that as we get this new conservative majority

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Speaker 1: on the Court. If that's how it turns out, all right,

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Speaker 1: we're gonna keep watching it with you. Bloomberg Supreme Court

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Speaker 1: reporter Greg Store joining us now in our Bloomberg Downing

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Speaker 1: nine one studios here in Washington, taking three insight appreciate

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Speaker 1: it as JUDG. Brett Kavanaugh and Dr Christine blaisie Ford

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Speaker 1: prepare for a Senate hearing tomorrow. President Trump is lashing

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Speaker 1: out again, saying that the Democrats are playing a dangerous

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Speaker 1: game during a u N meeting yesterday. It would be

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Speaker 1: a horrible insult to our country if this doesn't happen,

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Speaker 1: and it will be a horrible, horrible thing for future

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Speaker 1: political people. Judges. Anything you want to be a horrible thing,

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Speaker 1: it can not. It cannot be allowed to have. Joining

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Speaker 1: me is Arthur Hellman, a professor at the University of

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Speaker 1: Pittsburgh Law School. Arthur, would it be such a horrible

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Speaker 1: thing as Trump claims? Isn't the confirmation process supposed to

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Speaker 1: be about making a decision about whether a candidate is

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Speaker 1: qualified to have lifetime tenure on the courts, on the

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Speaker 1: country's highest court. Sure, it's about that, And the question

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Speaker 1: is what sort of processes and what kind of accusations

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Speaker 1: are going to be taken seriously and in what way?

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Speaker 1: I think the concern that some people have is the timing,

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Speaker 1: the lack of corroboration, and the fact that the regular

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Speaker 1: channels were not pursued by people who had the information

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Speaker 1: process is what's particularly important here. So, but what happens now,

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Speaker 1: what what should be done? Now that the process hasn't

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Speaker 1: been followed, as you say, but now these allegations, including

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Speaker 1: there is a third accuser who's come forward, So what

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Speaker 1: should the Senate Judiciary Committee do now? I think what

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Speaker 1: the Senate Judiciary Committee has to do is to do

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Speaker 1: preliminary private investigation of accusations and then determine whether those

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Speaker 1: require a further examination, either in public or through additional

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Speaker 1: private investigation. It's very hard to investigate what happened five

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Speaker 1: years ago, but something, something has to be done so

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Speaker 1: that people have confidence, or as much confidence as people

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Speaker 1: can have these days, that the accusations have been adequately investigated.

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Speaker 1: So so then, from what you're saying, the committee hearing,

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Speaker 1: where it's just going to be Judge Kavanaugh and Dr

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Speaker 1: Ford will not be able to accomplish that. I don't

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Speaker 1: think so at this point. I think yesterday it appeared

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Speaker 1: that it would, but this may be the first of

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Speaker 1: several such hearings, although as I say, that would depend

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Speaker 1: on what the private investigations by private, I mean not

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Speaker 1: part of the public hearing um would would reveal. I

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Speaker 1: just want to tell you about some breaking news. President

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Speaker 1: Trump has tweeted about Michael Abanati and his clients saying that, um,

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Speaker 1: he's looking for attention and doesn't want people to look

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Speaker 1: at his past record and relationships, and he's a third

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Speaker 1: rate lawyer. That's about the latest accusations from Avanati from

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Speaker 1: his client on Brett Kavanaugh. Arthur, you teach judicial ethics.

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Speaker 1: What's your take on Kavanaugh's unprecedented TV interview? Is that

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Speaker 1: in keeping with the image of the justices? Well, it's

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Speaker 1: certainly not the first TV interview that UM A well,

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Speaker 1: UH sitting justices have done TV interviews. UM. Justice Ginsburg

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Speaker 1: recently has done several. There was actually one many many

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Speaker 1: years ago now with Justice Black talking about his judicial philosophy.

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Speaker 1: For the fact of a TV interview by a judge

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Speaker 1: is not unique. It's unusual, certainly for a judge who

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Speaker 1: was a nominee to the Supreme Court to do that.

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Speaker 1: And I don't recall any off hand by nominees. But

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Speaker 1: there have not been this kind of last minute accusation.

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Speaker 1: So we're entirely in uncharted waters here. I want to

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Speaker 1: go beyond the hearings for a moment. If Kavanaugh is

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Speaker 1: confirmed and Democrats retake the House, some Democrats have said

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Speaker 1: they will start impeachment proceedings against him based on some

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Speaker 1: of his sworn testimony to the committee. It has been

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Speaker 1: done before, and the political climate with a conservative majority

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Speaker 1: on the court would be heated. What would be the

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Speaker 1: result of those well, the first attempts to impeach a

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Speaker 1: sitting Supreme Court justice was in the very early days

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Speaker 1: of the Republic. It was just a Samuel Chase, and then,

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Speaker 1: as now, there was a bitter partisan divide that Chase

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Speaker 1: was a Federalist and the UM Congress had been taken

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Speaker 1: over by the UM that Democratic party of that year

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Speaker 1: at Jefferson's party. So in some respect it was a

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Speaker 1: very parallel kind of situation, a change in who controlled

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Speaker 1: Congress and the presidency and an impeachment effort directed at

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Speaker 1: a sitting justice appointed by the prior president. But it

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Speaker 1: was so clear that they were trying to impeach him

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Speaker 1: and remove him from office that that effort failed, and

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Speaker 1: that has been taken ever since as a signal that UM,

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Speaker 1: no matter what the circumstances are, you don't try to

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Speaker 1: impeach a justice because of his views on legal issues. Now,

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Speaker 1: of course, this is not what would we be ostensibly

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Speaker 1: facing here. The argument would not be that we should

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Speaker 1: impeach him because he's a conservative. The argument would be,

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Speaker 1: we should impeach him. I take it because we believe

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Speaker 1: he committed perjury during the process of confirmation to the

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Speaker 1: Supreme Court, So that would be something different. But it

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Speaker 1: would certainly seem too many people to be a kind

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Speaker 1: of payback, just as the impeachment of Justice Chase was

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Speaker 1: seen and has been seen historically as a form of payback.

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Speaker 1: So now, if Kavanaugh is not confirmed, can he just

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Speaker 1: go back to his old job as judge on the

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Speaker 1: d C Circuit Court of Appeals when a judicial complaint

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Speaker 1: has been filed against him related to his allegedly perjured

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Speaker 1: testimony to Congress. Well, those are two separate issues. Certainly

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Speaker 1: he can, and I assume would go back to his

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Speaker 1: would resume decide in cases. And if you look at

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Speaker 1: some of the other failed nominations, Judge Ginsberg, the other

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Speaker 1: judge Ginsberg went back to his job. The closest parallel

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Speaker 1: actually is back to the Nixon era. Nixon nominated a

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Speaker 1: judge named Clement Hainsworth who was voted down based on

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Speaker 1: ethical allegations or allegations of ethical wrongdoing, which, by the way,

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Speaker 1: a number of people later admitted I was they probably

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Speaker 1: did not um treat him right. But he went back

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Speaker 1: served as a judge of the Fourth Circuit with great

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Speaker 1: distinction for many, many years after that. Now, the separate

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Speaker 1: question is what happens when a misconduct complaint is filed?

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Speaker 1: And I gather one has been and Congress has established

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Speaker 1: a pretty elaborate process for handling complaints of misconduct or

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Speaker 1: disability by federal judges, and the first step is a

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Speaker 1: review by the chief Judge of the Circuit, which happens

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Speaker 1: to be Merrill Garland. Now, in this particular instance, I

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Speaker 1: believe that Judge Garland will use a procedure that is

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Speaker 1: provided for the new rules. He will ask Chief Justice

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Speaker 1: Roberts to transfer this misconduct proceeding to another circuit. All right,

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Speaker 1: thank you, Thank you so much, Arthur. We will of

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Speaker 1: course be looking forward to what's happening tomorrow and talk

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Speaker 1: to you again. That's Arthur Hellman, a professor at the

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Speaker 1: University of Pittsburgh Law School. Thanks for listening to the

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Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the

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Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

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Speaker 1: slash podcast. I'm June Brasso. This is Bloomberg. Check the

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Speaker 1: dependent duck of the