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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 Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. President Trump has

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Speaker 1: scheduled a primetime event from the White House East Room

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Speaker 1: at nine tonight to announce his choice to replace Justice

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Speaker 1: Anthony Kennedy on the Supreme Court. Here he is speaking

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Speaker 1: as a boarded Air Force one in New Jersey on Sunday.

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Speaker 1: Let's say it's the four people. But they're excellent everyone,

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Speaker 1: you can't go wrong. But I'm getting very close to

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Speaker 1: make it a final decision. Joining me is Michael Dorff,

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Speaker 1: a professor at Cornell University Law School who clerk for

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Speaker 1: Justice Kennedy. Michael, all four are very conservative vetted by

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Speaker 1: the Federalist Society. Is one less conservative than another? And enough?

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Speaker 1: By that, I mean, is there any reason for liberals

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Speaker 1: to favor the selection of one over another. Well, I'm

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Speaker 1: not sure that we can do anything about it, So

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Speaker 1: it's not clear that favoring someone helps my understanding, at

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Speaker 1: least from the news for today is that the president

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Speaker 1: has narrowed his choices down to judges Brett Kavanaugh and

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Speaker 1: Thomas Hardeman. Uh. As between them, they've both written quite

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Speaker 1: conservative decisions. I think, UH, Kavanaugh is seen by conservatives

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Speaker 1: as potentially more wobbly because in the challenge to the

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Speaker 1: Obamacare case, he wrote a decision that didn't strike down

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Speaker 1: the law. He said the case wasn't right yet because

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Speaker 1: of federal law involving when you can challenge taxes, and

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Speaker 1: so because conservatives think he's potentially wobbly, maybe liberals should

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Speaker 1: be somewhat more reassured by Kavanaugh. But they're both quite

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Speaker 1: conservative now. Um, Kavanaugh has been sort of the favorite

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Speaker 1: uh in most news articles, at least for quite well.

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Speaker 1: And you talk about you know, the there might be

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Speaker 1: some people see it as there might be you know,

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Speaker 1: the conservative will be less happy with him, as though

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Speaker 1: they're all go behind any nominee. What why is what

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Speaker 1: is the problem that they see with him? In a

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Speaker 1: little more depth, Well, so let me go back to

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Speaker 1: the Affordable Care Act case. UH. This is sort of

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Speaker 1: the Bettan noir of the Tea Party wing of the

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Speaker 1: Republican Party and the Republican Party more generally right that

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Speaker 1: you know, they want to get rid of Obamacare. So

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Speaker 1: he had a chance in two thousand eleven to strike

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Speaker 1: down Obamacare. UH, and he didn't quite do that. He

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Speaker 1: wrote an opinion in which he concurred uh in a

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Speaker 1: judgment of the d C. Circuit that is his court. UM,

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Speaker 1: I'm sorry, I was in concurnent judgment. He dissented on

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Speaker 1: other grounds, but his grounds were basically, Hey, this case

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Speaker 1: isn't read isn't right yet, because if you want to

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Speaker 1: challenge attacks, you gotta wait to the tax court. And

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Speaker 1: that suggests to some people that maybe when the case

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Speaker 1: was right, he might have joined Chief Justice Roberts in

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Speaker 1: upholding the law as a valid exercise of the taxing power. UM.

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Speaker 1: Beyond that, I understand that President Trump is unhappy with

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Speaker 1: him because of his uh close ties to the Bush administration.

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Speaker 1: I don't see that so much as ideological as personal. Uh.

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Speaker 1: I think you know, I've known Judge Kavanaugh for many years. UM.

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Speaker 1: I think he's certainly an intelligent, thoughtful judge who you

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Speaker 1: know would respect the rule of law. And maybe there's

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Speaker 1: a worry that you know he would UM sometimes call

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Speaker 1: him as he sees him which would not always be

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Speaker 1: in the conservative direction, although frankly one would hope that

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Speaker 1: would be true of any nominee by any president. So

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Speaker 1: I don't quite get the opposition, uh to Judge Kavanaugh.

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Speaker 1: It seems to me it's based on um, you know,

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Speaker 1: projections mostly from one decision and so. And he would

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Speaker 1: also fit the Yale law school. They're all the justices

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Speaker 1: are either have gone to Harvard or Yale. And also

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Speaker 1: he clerked now tell us about um the other possible pick, Ketlich,

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Speaker 1: who seems to be coming into the four here, So, uh, Judge. Interestingly,

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Speaker 1: I think Judge Ketli has sort of his stock has

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Speaker 1: fallen a little bit today, but he's also quite conservative.

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Speaker 1: Also a former law clerk for Justice Kennedy. Um the

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Speaker 1: he's you know, he's got a reliably conservative record. He's

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Speaker 1: a little less high profile than Kabina, doesn't have the

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Speaker 1: Bush connection. Um, you know, the other two, as I said,

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Speaker 1: our Hardeman and Barrett. And you know, Barrett is really

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Speaker 1: the sort of wild card in this group. For one thing,

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Speaker 1: she's the only woman on the shortlist. For another thing,

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Speaker 1: she's um doesn't have nearly the experience on the Federal

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Speaker 1: Appeals Court. He was appointed there by President Trump. But

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Speaker 1: she apparently has become the darling of the social conservatives,

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Speaker 1: and so I thought I would see her stock rise,

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Speaker 1: but apparently, Um, she didn't have the right personal connection

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Speaker 1: with President Trump in the interview. Yeah, the President's interview

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Speaker 1: with her was only about thirty minutes, which was shorter

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Speaker 1: than the others, and he seems to put a lot

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Speaker 1: of stock in that personal interview. Now, the the one

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Speaker 1: that's been looked at as the outsider was Hardman. He

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Speaker 1: didn't go to an Ivy League school, he didn't clerk

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Speaker 1: for any judge at all, and he financed his education

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Speaker 1: by driving a cab. So he sort of would have

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Speaker 1: been the type that you might have expected Trump to

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Speaker 1: pick before he became president and the people that he

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Speaker 1: was talking about picking, Yeah, that's right. I mean, he

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Speaker 1: did go to Georgetown Law School, so he's got a

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Speaker 1: good pedigree and he's had a very successful career. But

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Speaker 1: he does see more of a you know, guy picked

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Speaker 1: himself up by his bootstraps that had did not come

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Speaker 1: from a from privilege. Um, but you know, in a

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Speaker 1: lot of respects, that's I think emblematic of the Trump administration,

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Speaker 1: which is talking and appealing to working class voters. But

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Speaker 1: then when it comes time to make decisions about personnel

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Speaker 1: pointing billionaires and uh, you know, serving the interests of

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Speaker 1: of other folks. I'm not saying that any of the

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Speaker 1: other three would necessarily vote their class interest or that

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Speaker 1: Judge Hardeman, if you were named to the Supreme Court,

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Speaker 1: would be more of a champion of working folks. Uh.

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Speaker 1: It's just that if you value a certain kind of

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Speaker 1: intellectual diversity, might want to value diversity of experience. So

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Speaker 1: when Clarence Thomas was nominated, part of the the selling

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Speaker 1: point for him was his story of coming from a background,

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Speaker 1: an unprivileged background in Pinpoint, Georgia, so that that would

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Speaker 1: be a very attractive story. I think if the President

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Speaker 1: were to settle on Hardeman. Now, the President put stock

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Speaker 1: in what Mitch McConnell says, and the Senate Majority Leader

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Speaker 1: advised the President that Judge Hardeman and Judge Catledge would

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Speaker 1: get fewer obstacles, would have fewer obstacles in the confirmation process,

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Speaker 1: which it's it seems as if that is a little

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Speaker 1: bit odd to me that he would pick those two

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Speaker 1: as having fewer obstacles. And I wonder if that's maybe

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Speaker 1: just the two that he likes. So I think that's

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Speaker 1: quite possible. It's hard for me to see any nominee

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Speaker 1: from President Trump who's you know, a sitting Appeals Court

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Speaker 1: judge being voted down, given that Republicans have a majority

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Speaker 1: in the Senate and there are three Democrats from red

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Speaker 1: states who voted to confirm Neil Gorsuch, and they would

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Speaker 1: have to lose all of those people, uh in order

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Speaker 1: to lose the nomination. Um. So it's possible that Senator

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Speaker 1: McConnell is painting this picture uh in terms of confirmation

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Speaker 1: prospect when it's really his own personal preference. Or it

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Speaker 1: could just be that he wants, you know, he'd rather

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Speaker 1: have a greater margin for error. Thanks so much, Michael,

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Speaker 1: it's a pleasure to have you on again. That's Michael Dorff.

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Speaker 1: He's a professor at Cornell University Law School. We'll find

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Speaker 1: out at nine tonight what the answer to this question

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Speaker 1: is about who will replace Justice Kennedy or be the nominee.

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Speaker 1: At least. President Trump's top Supreme Court advisor, Leonard Leo

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Speaker 1: of the Federalist Society, said on ABC's This Week that

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Speaker 1: warnings that the next Supreme Court justice will overturn a

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Speaker 1: ruling that legalized abortion is just speculation. We've been talking

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Speaker 1: about this for thirty six years, going all the way

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Speaker 1: back to the nomination Sandra O'Connor, and after that thirty

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Speaker 1: six per year period, we only have a single individual

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Speaker 1: on the Court who has expressly said he with overturn Row.

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Speaker 1: So I think it's a bit of a scare tactic.

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Speaker 1: Joining me is Christine Chabau, a distinguished scholar and residence

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Speaker 1: at Loyola University Chicago School of Law. She's written a

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Speaker 1: paper entitled, do justice is time near retirements politically? Christine?

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Speaker 1: Justice Kennedy seems to have timed his retirement politically with

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Speaker 1: the Republican president and Senate. But how does that fit

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Speaker 1: in with the discussion about the probability of Roe v.

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Speaker 1: Wade and other decisions being overturned when Kennedy's replacement is

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Speaker 1: on the court. Yes, well, certainly, Um, if you look

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Speaker 1: at this just on a party perspective, Kennedy as a

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Speaker 1: Republican appointee who is retiring to a Republican president. But

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Speaker 1: if you look at his voting record in the entire

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Speaker 1: spectrum of non unanimous cases, you will see that this

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Speaker 1: is going to be anything but the routine replacement of

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Speaker 1: a Republican appointee by another Republican justice, because Kennedy was

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Speaker 1: at the center of the court. Uh, and he was

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Speaker 1: there for ideologically distant from leaders of both Democratic and

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Speaker 1: Republican parties. Uh. So that being said, his retirement now

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Speaker 1: um is one that the odds they're stacked against us

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Speaker 1: having a replacement who will vote in a way that

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Speaker 1: is similar to Justice Kennedy. Um. Now, again, my dada

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Speaker 1: goes to look to all issues in non unanimous cases,

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Speaker 1: so I won't. It doesn't speak specifically to a case

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Speaker 1: like Rov. Wade, But it is important to have perspective

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Speaker 1: as well on the whole body of cases that the

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Speaker 1: Supreme Court might decide, because there also could be some

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Speaker 1: very important statutory issues related to environmental law or antitrust

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Speaker 1: as well. Tell us about your conclusion that political timing

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Speaker 1: has not dominated justice is retirement decisions in the modern era? Um? Yes,

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Speaker 1: certainly justices Uh. For many justices, Uh, there is not

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Speaker 1: a good time to leave the bench, and probably a

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Speaker 1: good example uh. The best recent example of this might

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Speaker 1: be Justice Ginsburg's refusal to retire during Obama administration instead,

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Speaker 1: as she wanted to stay on the bench. And I

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Speaker 1: think part of the reason why justices might like to

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Speaker 1: stay on for a long while is that they're unlikely

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Speaker 1: to be replaced by someone whose votes exactly like they do,

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Speaker 1: even if they do have an ideologically compatible president that

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Speaker 1: they retired to. I mean, it's feel likely to be

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Speaker 1: more dissimilar if you're retiring to a distant president, but

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Speaker 1: if you're even if you're retiring to a president who

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Speaker 1: shares many of your views, there's still a lot of

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Speaker 1: variants between the retiring Justice UH and their success or.

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Speaker 1: And a good example of this might be Justice Steven's

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Speaker 1: replacement by Justice Kagan Um is that there's several seats

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Speaker 1: away from the spot that Justice Steven's occupied, So UH,

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Speaker 1: even though Steven's retired to President Obama, his successor had

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Speaker 1: a somewhat different voting records. It was very interesting that

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Speaker 1: from from reading your ford, it seemed that Justice Suitor,

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Speaker 1: who was a Republican appointee who retired during a Democrat

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Speaker 1: a Democratic president Obama's term, see his replacements seemed to

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Speaker 1: be more in line with the way he'd been voting yes, yes,

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Speaker 1: and by the measure. In my paper, I'm thinking about

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Speaker 1: justice is ideology as evidenced by their voting records and

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Speaker 1: how likely they are to be replaced by someone with

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Speaker 1: a similar voting record, which is also very important. UM,

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Speaker 1: when we're considering what would happen with Justice Kennedy. Um,

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Speaker 1: now you mention of Justice Suitor. Actually, people have been

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Speaker 1: talking about him and the news a lot lately, I

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Speaker 1: guess with the fear that will Trump's nominee or one

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Speaker 1: of the nominees turn out to be like Justice Suitor.

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Speaker 1: And I actually do have some earlier research that provides

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Speaker 1: historical perspective on that, and historically presidents actually have been

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Speaker 1: disappointed uh and appointed a justice who might side with

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Speaker 1: Justice is appointed by the other party most of the

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Speaker 1: time in many cases almost half of the cases at

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Speaker 1: least in the study was from eight thirty eight to

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Speaker 1: two thousand and nine. So you can think of famous

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Speaker 1: examples like, uh, President Eisenhower being disappointed in the liberal

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Speaker 1: voting patterns of Chief Justice Warren and Justice Brunnon and

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Speaker 1: saying that they were the worst mistakes he ever made. Uh.

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Speaker 1: You know, so certainly that has happened, um in the past,

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Speaker 1: and some people are wondering if it will happen here.

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Speaker 1: I don't think that's likely to happen here for a

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Speaker 1: couple of reasons. First of all, in recent decades, presidents

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Speaker 1: have really UH improved their performance. They've done a much

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Speaker 1: better job of appointing justices who vote um, probably as

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Speaker 1: their appointing president would like them to UH. And again,

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Speaker 1: this is general voting records across all non unanimous cases UM.

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Speaker 1: But they they've done better on that score. And part

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Speaker 1: of that probably relates to the careful vetting process that

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Speaker 1: UH presidential administrations have gone through. UH truly make sure

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Speaker 1: they've carefully read through and studied every single thing these

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Speaker 1: various candidates have written UH to understand how they're likely

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Speaker 1: to vote. So in this case, I tend to think

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Speaker 1: that the vetting process that produced Justice score such UH

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Speaker 1: will probably have similar success no matter which one of

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Speaker 1: the three or four candidates Justice Trump names today. All right, well,

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Speaker 1: it's it's a very interesting article, and it's uh the

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Speaker 1: first time that all these different parameters have been examined

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Speaker 1: in the light of Supreme Court justices retirements. Thanks so

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Speaker 1: much for being on the show. That's Christine Chabou. She's

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Speaker 1: a Distinguished Scholar in Residence at Loyola University Chicago School

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Speaker 1: of Law. Her paper is entitled do Justices time their

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Speaker 1: retirements politically? And it certainly is a look at the

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Speaker 1: mathematics of it all. Thanks for list thing 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 Grosso. This is Bloomberg