1 00:00:01,120 --> 00:00:04,600 Speaker 1: This is a Bloomberg Radio special selecting the next Supreme 2 00:00:04,640 --> 00:00:08,360 Speaker 1: Court Justice. I'm David Weston. Well. President Tromp has made 3 00:00:08,360 --> 00:00:12,040 Speaker 1: it official, nominating Amy Coney Barrett to replace the late 4 00:00:12,200 --> 00:00:15,240 Speaker 1: Justice Ruth Bader Ginsburg on the High Court. She is 5 00:00:15,280 --> 00:00:22,040 Speaker 1: a woman of unparalleled achievement, towering intellect, sterling credentials, and 6 00:00:22,400 --> 00:00:32,159 Speaker 1: unyielding loyalty to the Constitution. Judge Amy Coney Barrett, it's 7 00:00:32,159 --> 00:00:34,120 Speaker 1: a pick that has the potential to shift the balance 8 00:00:34,120 --> 00:00:36,960 Speaker 1: of the Supreme Court for decades to come. Over the 9 00:00:37,000 --> 00:00:40,360 Speaker 1: next hour, we'll look at the implications, discuss the politics 10 00:00:40,360 --> 00:00:43,599 Speaker 1: around the pick, and examine Judge Barrett's record from her 11 00:00:43,600 --> 00:00:46,639 Speaker 1: start as a clerk for Justice Antony Scalia to her 12 00:00:46,640 --> 00:00:49,320 Speaker 1: time on the bench of the Seventh Circuit Court of Appeals. 13 00:00:49,680 --> 00:00:52,159 Speaker 1: But first, let's start with some initial reaction from our 14 00:00:52,159 --> 00:00:55,880 Speaker 1: Bloomberg News and Bloomberg Law Supreme Court reporters Greg Store 15 00:00:56,160 --> 00:00:59,160 Speaker 1: and Kimberly Strawbage Robinson. So, Greg, I'll start with you. 16 00:00:59,240 --> 00:01:02,720 Speaker 1: This hardly came is a surprise. People basically were predicting it. No. Yeah, 17 00:01:02,720 --> 00:01:04,720 Speaker 1: this is a name that we were all talking about 18 00:01:04,760 --> 00:01:07,039 Speaker 1: for days. It's a name McDonald Trump told us. He 19 00:01:07,080 --> 00:01:11,240 Speaker 1: was very seriously considering, and it's somebody who he interviewed 20 00:01:11,520 --> 00:01:14,880 Speaker 1: before he selected Brett Kavanaugh for the last opening. Yeah. 21 00:01:14,880 --> 00:01:17,479 Speaker 1: And at the same time, Kimberly, it's important these days 22 00:01:17,560 --> 00:01:20,240 Speaker 1: to know something about your nominee and how they're likely 23 00:01:20,280 --> 00:01:23,680 Speaker 1: to rule. This nominee is an academic. She's written a 24 00:01:23,760 --> 00:01:26,800 Speaker 1: fair amount, she said, sort of how she approaches judging, 25 00:01:26,800 --> 00:01:28,960 Speaker 1: and so they kind of know her approach, don't they. 26 00:01:29,360 --> 00:01:32,920 Speaker 1: They do. When she was a law professor at Notre Dame, 27 00:01:33,040 --> 00:01:35,720 Speaker 1: she was there for a number of years, she really 28 00:01:35,760 --> 00:01:40,120 Speaker 1: focused on originalism and statutory construction and really in the 29 00:01:40,160 --> 00:01:43,679 Speaker 1: mold of her former boss, Justice Scalia, and on the 30 00:01:43,760 --> 00:01:46,720 Speaker 1: Seventh Circuit. While she hasn't been there that long, just 31 00:01:46,800 --> 00:01:50,480 Speaker 1: since October, that has been her record on the court, 32 00:01:50,560 --> 00:01:54,680 Speaker 1: following those judicial ideologies. Yeah, when you hear things like originalism, 33 00:01:54,720 --> 00:01:58,880 Speaker 1: which certainly is something that Justice Scalia espoused, you automatically 34 00:01:58,920 --> 00:02:02,240 Speaker 1: almost think about role against Wade an abortion, don't you, Greg, 35 00:02:02,280 --> 00:02:04,760 Speaker 1: because that's something that the Conservatives was saying for some time. 36 00:02:04,960 --> 00:02:07,800 Speaker 1: I don't see the right to have an abortion in 37 00:02:07,840 --> 00:02:11,200 Speaker 1: the constitution. Yeah, you certainly do. It really hard to 38 00:02:11,240 --> 00:02:16,040 Speaker 1: square Roe v. Wade with the way that conservatives apply originalism, 39 00:02:16,440 --> 00:02:19,520 Speaker 1: and so yes, that that is almost an implicit criticism 40 00:02:19,520 --> 00:02:21,520 Speaker 1: of the way that decision was made in an amy 41 00:02:21,560 --> 00:02:24,360 Speaker 1: Comy Barrett's case. We also have some things she has 42 00:02:24,400 --> 00:02:27,880 Speaker 1: said about abortion in law review articles where she's made 43 00:02:27,880 --> 00:02:31,840 Speaker 1: clear she has a personal objection to abortion and sees 44 00:02:31,880 --> 00:02:34,560 Speaker 1: it as being immoral. So you can bind those two things, 45 00:02:34,600 --> 00:02:37,800 Speaker 1: and certainly one would expect she's gonna be very skeptical 46 00:02:37,840 --> 00:02:40,200 Speaker 1: of Roe v. Wade comes before the court. Well and Kimberly, 47 00:02:40,240 --> 00:02:42,639 Speaker 1: that takes us almost automatically at the confirmation hearing when 48 00:02:42,639 --> 00:02:44,520 Speaker 1: she was nominated to go on the Court of Appeals 49 00:02:44,680 --> 00:02:47,480 Speaker 1: where you had that now famous exchange with Diane Finstein, 50 00:02:47,520 --> 00:02:50,200 Speaker 1: the senator from California, who pointed to a religion and 51 00:02:50,240 --> 00:02:52,840 Speaker 1: then actually took a fair amount of criticism raising religion 52 00:02:52,840 --> 00:02:56,440 Speaker 1: as an issue. Well, that's right, and Senator Finstein was 53 00:02:56,440 --> 00:02:59,080 Speaker 1: really asking about one of those many articles that Greig 54 00:02:59,120 --> 00:03:02,760 Speaker 1: mentioned at any Coney Barrett wrote when she was an academic, 55 00:03:03,240 --> 00:03:06,679 Speaker 1: which argued that Catholic judges should recuse themselves from death 56 00:03:06,720 --> 00:03:10,320 Speaker 1: penalty cases, which of course has implications for the abortion 57 00:03:10,520 --> 00:03:13,440 Speaker 1: She said that wouldn't be what she does when she's 58 00:03:13,480 --> 00:03:17,080 Speaker 1: sitting on federal Court. But it did bring up this 59 00:03:17,200 --> 00:03:21,320 Speaker 1: controversy where Diane Feinstein said that the dogma lived loudly 60 00:03:21,520 --> 00:03:24,679 Speaker 1: within any Coney Barrett and it really made her sort 61 00:03:24,720 --> 00:03:27,880 Speaker 1: of a hero for religious conservatives. It will be interesting 62 00:03:27,919 --> 00:03:29,840 Speaker 1: to see if this comes up, how it comes up 63 00:03:29,880 --> 00:03:33,760 Speaker 1: in confirmation hearings, Gregg, and those will be apparently happening 64 00:03:33,800 --> 00:03:35,880 Speaker 1: fairly soon if the President of the United States has 65 00:03:35,960 --> 00:03:38,120 Speaker 1: his way. At the same time, if you look at 66 00:03:38,120 --> 00:03:40,800 Speaker 1: her record, it is a pretty stellar record. Number one 67 00:03:40,800 --> 00:03:43,080 Speaker 1: of the class of Notre Dame law school executor, the 68 00:03:43,160 --> 00:03:44,920 Speaker 1: law review clerks in the Supreme Court, and before that 69 00:03:45,000 --> 00:03:47,920 Speaker 1: for a prestigious court appeals judge. It's pretty hard to 70 00:03:47,960 --> 00:03:50,720 Speaker 1: say she's not qualified for the job. Yeah, this isn't 71 00:03:50,760 --> 00:03:54,080 Speaker 1: going to be a fight over qualifications or credentials. There's 72 00:03:54,120 --> 00:03:57,040 Speaker 1: no question she has those, and one will expect that 73 00:03:57,120 --> 00:03:59,520 Speaker 1: she will present herself very well in terms of her 74 00:03:59,560 --> 00:04:02,280 Speaker 1: knowledge of the law, on her ability to do the job. 75 00:04:02,440 --> 00:04:06,360 Speaker 1: You'll really be about the ideology and perhaps any Hayden 76 00:04:06,440 --> 00:04:09,800 Speaker 1: motivations Democrats think she has, and what she would do 77 00:04:09,880 --> 00:04:12,240 Speaker 1: to the Supreme Court. At this time when we're about 78 00:04:12,240 --> 00:04:15,120 Speaker 1: to have a presidential election. Kimberly strikes me there's something 79 00:04:15,160 --> 00:04:17,280 Speaker 1: a little bit artificial when we have a nomination to 80 00:04:17,320 --> 00:04:19,800 Speaker 1: the Supreme Court, we focus on one individual. They are 81 00:04:19,880 --> 00:04:22,400 Speaker 1: one of nine, and we don't want to underestimate the 82 00:04:23,279 --> 00:04:27,000 Speaker 1: collegiality or lack of collegiality, because some justices of outside 83 00:04:27,000 --> 00:04:29,240 Speaker 1: influence because they get along well with others and con 84 00:04:29,279 --> 00:04:31,839 Speaker 1: persuade others. Others are somewhat of loaners. Do we know 85 00:04:31,920 --> 00:04:35,040 Speaker 1: anything about her style on the Seventh Circuit? I think 86 00:04:35,080 --> 00:04:37,520 Speaker 1: we can look at her combromation hearing for the Seventh 87 00:04:37,520 --> 00:04:40,120 Speaker 1: Circuit to see the kind of support that she got 88 00:04:40,160 --> 00:04:42,240 Speaker 1: from the people that she worked with. All of the 89 00:04:42,320 --> 00:04:45,400 Speaker 1: law professors at Notre Dame and backed her nomination to 90 00:04:45,440 --> 00:04:48,279 Speaker 1: the court. And she was hugely popular among her students 91 00:04:48,320 --> 00:04:50,880 Speaker 1: as well. So she does seem like somebody who would 92 00:04:50,880 --> 00:04:54,839 Speaker 1: fit into that collegiality at the Supreme Court. But it's 93 00:04:55,120 --> 00:04:58,200 Speaker 1: famously Ben said that a new justice always changes the court, 94 00:04:58,240 --> 00:04:59,720 Speaker 1: and of course that's going to be true in her 95 00:04:59,760 --> 00:05:01,760 Speaker 1: case as well. Gregg, we are in Bloomberg, so we 96 00:05:01,760 --> 00:05:03,800 Speaker 1: should talk about what we think this might mean or 97 00:05:03,839 --> 00:05:06,640 Speaker 1: not mean for the economy and for business. What would 98 00:05:06,640 --> 00:05:10,040 Speaker 1: business expect of a Justice Barrett. Well, first of all, 99 00:05:10,080 --> 00:05:11,960 Speaker 1: business would tear a lot about our views on the 100 00:05:12,000 --> 00:05:14,040 Speaker 1: Affordable Care Act. The Court's going to hear arguments a 101 00:05:14,080 --> 00:05:16,839 Speaker 1: week after the election. Depending on how that falls out, 102 00:05:16,920 --> 00:05:19,880 Speaker 1: she may or may not participate in that case. She 103 00:05:20,080 --> 00:05:24,120 Speaker 1: was critical of Chief Justice Roberts's reasoning back when he 104 00:05:24,640 --> 00:05:28,240 Speaker 1: cast the kebo to uphold the law in not exactly 105 00:05:28,320 --> 00:05:31,000 Speaker 1: the same issue before the Court now, but related. And 106 00:05:31,040 --> 00:05:33,640 Speaker 1: then you know she haven't because she's not on the 107 00:05:33,720 --> 00:05:36,279 Speaker 1: d C Circuit, which handles so much of the regulatory issues. 108 00:05:36,360 --> 00:05:39,280 Speaker 1: She hasn't had as much regulatory work as say Brett 109 00:05:39,360 --> 00:05:42,680 Speaker 1: Kavanaugh did when he joined the Supreme Court, but one 110 00:05:42,720 --> 00:05:46,200 Speaker 1: would imagine that her instincts would be with people like 111 00:05:46,279 --> 00:05:49,880 Speaker 1: Neil Gorsag and Brett Kavanaugh to be skeptical of agency 112 00:05:49,920 --> 00:05:53,160 Speaker 1: and authority. That could mean scaling back some regulations. You 113 00:05:53,200 --> 00:05:56,760 Speaker 1: talk about Justice Kavanaugh and scale regulation, and Kimberly, it 114 00:05:56,839 --> 00:06:00,440 Speaker 1: brings you back to some challenges to the delegation. Doctor Frankly, 115 00:06:00,480 --> 00:06:01,640 Speaker 1: we saw a little bit of a hint of it, 116 00:06:01,680 --> 00:06:04,880 Speaker 1: perhaps in the CFPP decision last term, where they said, 117 00:06:04,880 --> 00:06:06,600 Speaker 1: basically the president should have the right to fire when 118 00:06:06,600 --> 00:06:09,080 Speaker 1: it's just one person of heads an agency. Does this 119 00:06:09,320 --> 00:06:12,159 Speaker 1: tell us anything about the likelihood that the Supreme Court 120 00:06:12,240 --> 00:06:15,440 Speaker 1: may say, you know, what agencies should be more subject 121 00:06:15,720 --> 00:06:18,320 Speaker 1: to the president? We really don't know. She doesn't have 122 00:06:18,400 --> 00:06:21,080 Speaker 1: a very strong record on that, just given where she 123 00:06:21,160 --> 00:06:23,159 Speaker 1: sits in the federal bench. But the Supreme Court is 124 00:06:23,160 --> 00:06:26,720 Speaker 1: considering a similar case uh this term where the timing 125 00:06:26,760 --> 00:06:29,240 Speaker 1: looks right for a Trumps dominated be seated on the 126 00:06:29,240 --> 00:06:31,960 Speaker 1: court so we could get our first indications whenever they 127 00:06:31,960 --> 00:06:34,200 Speaker 1: hear or an argument how she thinks about this issue. 128 00:06:34,600 --> 00:06:37,200 Speaker 1: Many thanks now to Bloomberg News Supreme Court reporter Gregg 129 00:06:37,240 --> 00:06:41,720 Speaker 1: Store and Bloomberg Law Supreme Court reporter Kimberly Strawbridge Robinson 130 00:06:42,320 --> 00:06:44,839 Speaker 1: for more on the judge and the possible influence she 131 00:06:44,880 --> 00:06:47,960 Speaker 1: could have on the High Court. Welcome Leah Lippmann, Professor 132 00:06:48,000 --> 00:06:50,719 Speaker 1: of Constitutional law at the University of Michigan. So, professor, 133 00:06:50,720 --> 00:06:53,039 Speaker 1: thank you so much for joining us. Let's start out 134 00:06:53,080 --> 00:06:55,239 Speaker 1: first with maybe a disclaimer. I mean, you have served 135 00:06:55,279 --> 00:06:58,000 Speaker 1: on the Court as a clerk for Justice Kennedy. Maybe 136 00:06:58,040 --> 00:06:59,760 Speaker 1: we should be a little cautious about how much we 137 00:07:00,000 --> 00:07:02,120 Speaker 1: and predict about someone when they come up with spru 138 00:07:02,360 --> 00:07:04,480 Speaker 1: Justice because often they're not what we thought they would be. 139 00:07:04,920 --> 00:07:07,200 Speaker 1: I think that that's right, although I do think that 140 00:07:07,240 --> 00:07:09,760 Speaker 1: the parties, and in particular at the Republican Party, have 141 00:07:09,840 --> 00:07:12,840 Speaker 1: gotten a little bit better at selecting sustics whose votes 142 00:07:12,880 --> 00:07:15,520 Speaker 1: that can be more confident. In ye, fair Enough did 143 00:07:15,600 --> 00:07:17,720 Speaker 1: put a lot of work into that. Actually she did 144 00:07:17,800 --> 00:07:22,200 Speaker 1: clerk for Justice Scalia. Uh, and obviously he was an originalist. 145 00:07:22,280 --> 00:07:24,320 Speaker 1: Really believe you got to go back to the original language. 146 00:07:24,360 --> 00:07:26,600 Speaker 1: She also has I understand, as an academic for some 147 00:07:26,720 --> 00:07:28,840 Speaker 1: fifteen years at Notre Dame in law school, wrote on 148 00:07:28,880 --> 00:07:32,400 Speaker 1: the subject, and she embraces that doctrine explain how that 149 00:07:32,440 --> 00:07:35,720 Speaker 1: could affect how she rules at the Supreme Court. So, 150 00:07:35,880 --> 00:07:38,800 Speaker 1: under the doctrine of originalism, you're supposed to interpret the 151 00:07:38,800 --> 00:07:42,560 Speaker 1: Constitution as it was originally understood when it was ratified. 152 00:07:43,200 --> 00:07:46,680 Speaker 1: Um So, using that methodology, Professor Barrett or when she 153 00:07:46,800 --> 00:07:50,360 Speaker 1: was Professor Barrett, authored law review articles explaining that under 154 00:07:50,960 --> 00:07:54,280 Speaker 1: an originalist theory of the Constitution, decisions like Brown for 155 00:07:54,360 --> 00:07:57,440 Speaker 1: support of education, which helps us segregation and public education 156 00:07:57,440 --> 00:08:00,600 Speaker 1: as un constitutional might be wrong, we decide. She also 157 00:08:00,640 --> 00:08:03,600 Speaker 1: suggested that social security as we know it is unconstitutional, 158 00:08:03,720 --> 00:08:05,560 Speaker 1: and that the admission of the state of West Virginia 159 00:08:05,680 --> 00:08:09,880 Speaker 1: was illegal as well. However, her scholarship was grappling with 160 00:08:09,920 --> 00:08:14,000 Speaker 1: this question about what do you do when originalism points 161 00:08:14,000 --> 00:08:18,520 Speaker 1: in one direction and the Supreme Court cases point in another. 162 00:08:18,680 --> 00:08:21,920 Speaker 1: And she did not purport to say what a judge 163 00:08:21,920 --> 00:08:25,960 Speaker 1: should do under those circumstances, and said she was writing 164 00:08:26,320 --> 00:08:31,240 Speaker 1: about how conscientious legislators should behave when they think that 165 00:08:31,280 --> 00:08:34,280 Speaker 1: the original meaning of a constitution point in one direction 166 00:08:34,360 --> 00:08:37,680 Speaker 1: and Supreme Court precedent in another. So we don't really 167 00:08:37,800 --> 00:08:42,280 Speaker 1: know how she will be in cases where the original 168 00:08:42,320 --> 00:08:45,480 Speaker 1: public meaning and her assessment of the Constitution points in 169 00:08:45,520 --> 00:08:48,120 Speaker 1: one direction and the Supreme Court cases point in another. 170 00:08:48,480 --> 00:08:51,760 Speaker 1: The President's nominees to date have really taken two approaches 171 00:08:51,840 --> 00:08:54,800 Speaker 1: to that question. You have Justice Courss on the one hand, 172 00:08:55,040 --> 00:08:58,120 Speaker 1: he largely thinks that when the Supreme Court got it wrong, 173 00:08:58,160 --> 00:09:01,040 Speaker 1: you should just abandon a case, even if the Supreme 174 00:09:01,040 --> 00:09:04,440 Speaker 1: Court has resolved it the other way. Justice Kavanaugh, for 175 00:09:04,640 --> 00:09:08,839 Speaker 1: his part, has not gone as far as Justice Corsich 176 00:09:08,920 --> 00:09:12,720 Speaker 1: as far as abandoning the Supreme Court's prior cases. So 177 00:09:12,760 --> 00:09:14,559 Speaker 1: this is a terribly important point. So we call it 178 00:09:14,640 --> 00:09:17,600 Speaker 1: started decisive right, which is basically, we should follow President. 179 00:09:17,640 --> 00:09:19,960 Speaker 1: We don't turn on a dime in the Supreme Court, 180 00:09:20,040 --> 00:09:22,680 Speaker 1: and particularly perhaps when it comes to the Constitution. We 181 00:09:22,720 --> 00:09:25,520 Speaker 1: saw Chief Justice roberts Just's last term embraced that in 182 00:09:25,559 --> 00:09:27,959 Speaker 1: the abortion case. Do we have a sense of how 183 00:09:28,000 --> 00:09:30,120 Speaker 1: that might cut on the abortion issue. A lot of 184 00:09:30,120 --> 00:09:33,240 Speaker 1: people talk about Amy Corny Barrett in connection with abortion. 185 00:09:33,720 --> 00:09:38,640 Speaker 1: So we don't have any great indication based on Judge 186 00:09:38,640 --> 00:09:42,480 Speaker 1: Barrett or Professor Barrett's writings, either as a scholar or 187 00:09:42,520 --> 00:09:45,600 Speaker 1: as a judge. But I would say the most important 188 00:09:45,679 --> 00:09:48,600 Speaker 1: indication that we have is the fact that the President 189 00:09:48,760 --> 00:09:53,240 Speaker 1: promised to appoint nominees who would overturn Roe versus Wade. 190 00:09:53,559 --> 00:09:56,800 Speaker 1: The fact that Senator Josh Holley of Missouri that he 191 00:09:56,840 --> 00:10:01,960 Speaker 1: would only vote for nominees who would overturn Roe versus Wade. 192 00:10:02,520 --> 00:10:05,560 Speaker 1: And the fact that Senator Holly has indicated that Judge 193 00:10:05,600 --> 00:10:08,200 Speaker 1: Barrett passes his tests, and the fact that the President 194 00:10:08,559 --> 00:10:12,000 Speaker 1: nominated her suggest they believe and they have been told 195 00:10:12,000 --> 00:10:14,520 Speaker 1: by people who know her, that she would vote to 196 00:10:14,559 --> 00:10:18,720 Speaker 1: overturn Row. Another great indication about how she might vote 197 00:10:18,720 --> 00:10:20,520 Speaker 1: in those cases is the fact that both of the 198 00:10:20,559 --> 00:10:24,040 Speaker 1: president's nominees just last term in Louisiana abortion, a case 199 00:10:24,120 --> 00:10:28,000 Speaker 1: that you mentioned, voted to overturn the court's most recent 200 00:10:28,160 --> 00:10:31,280 Speaker 1: abortion case, Whole Woman's Health versus. Teller said that was 201 00:10:31,360 --> 00:10:34,760 Speaker 1: the decision, of course, that invalidated the admitting privileges requirement 202 00:10:34,800 --> 00:10:37,760 Speaker 1: with Texas and accident, and both Justice Gorfish and Justice 203 00:10:37,800 --> 00:10:41,400 Speaker 1: Kavanaugh would have overturned that deficient and allowed Louisiana to 204 00:10:41,440 --> 00:10:44,440 Speaker 1: announce an admitting privileges requirement and to show just how 205 00:10:44,480 --> 00:10:46,720 Speaker 1: powerful it is. Chief Justice Roberts, as I recall, said, 206 00:10:46,720 --> 00:10:49,079 Speaker 1: look at I voted in the dissent on the prior case, 207 00:10:49,360 --> 00:10:51,480 Speaker 1: so I think it's wrong and decided, but I'm still 208 00:10:51,520 --> 00:10:54,480 Speaker 1: going to enforce it because it's the law exactly and teach. 209 00:10:54,520 --> 00:10:58,160 Speaker 1: Justice Roberts is a justice who believes that starry, decisive 210 00:10:58,280 --> 00:11:02,880 Speaker 1: and principles of respect for precedents should occasionally carry today. However, 211 00:11:02,920 --> 00:11:05,760 Speaker 1: the President's too most recent nominees have been more inclined 212 00:11:05,800 --> 00:11:09,000 Speaker 1: to read that's the precedent and just based on that record, 213 00:11:09,240 --> 00:11:13,520 Speaker 1: and again people like Senator Holly's faith in Judge Coney 214 00:11:13,600 --> 00:11:16,240 Speaker 1: Barrett that suggests that she might be more in the 215 00:11:16,280 --> 00:11:18,680 Speaker 1: mold of a Justice Cabinet or juice courseitch than the 216 00:11:18,720 --> 00:11:21,040 Speaker 1: Chief Justice. One of the cases that is scheduled at 217 00:11:21,080 --> 00:11:23,000 Speaker 1: least right now to be argued is the Affordable Care 218 00:11:23,000 --> 00:11:25,839 Speaker 1: Act case coming back up again that as we know, 219 00:11:26,080 --> 00:11:28,640 Speaker 1: some of the Conservatives were disappointed with Chief Justice Drawber's 220 00:11:28,640 --> 00:11:31,320 Speaker 1: first time around. Is I understand it, professor when she 221 00:11:31,480 --> 00:11:34,760 Speaker 1: was professor there has actually been critical of what Chief 222 00:11:34,800 --> 00:11:38,880 Speaker 1: Justice Roberts said in that case. Yes, although this version 223 00:11:38,960 --> 00:11:42,120 Speaker 1: of the Affordable Care Act case is a little bit 224 00:11:42,240 --> 00:11:46,960 Speaker 1: wonkier because it really involves a two steps challenge. And 225 00:11:47,040 --> 00:11:50,320 Speaker 1: the first argument in the case is whether the two 226 00:11:50,360 --> 00:11:54,160 Speaker 1: thousand seventeen amendments to the Affordable Care Act by the 227 00:11:54,200 --> 00:11:59,000 Speaker 1: Republican Congress strengthened the individual mandate and rendered it on 228 00:11:59,200 --> 00:12:03,880 Speaker 1: constitution and all, and if the mandate is in fact unconstitutional, 229 00:12:04,000 --> 00:12:07,360 Speaker 1: whether the rest of the Affordable Care Act must fall 230 00:12:07,400 --> 00:12:12,280 Speaker 1: as well. Those arguments are, to put it mildly, pretty 231 00:12:12,360 --> 00:12:18,240 Speaker 1: legally outlandish. And so even if she disagrees with the 232 00:12:18,320 --> 00:12:21,719 Speaker 1: Chief Justice's vote in the two thousand twelve decision that 233 00:12:21,840 --> 00:12:25,160 Speaker 1: upheld the constitutionality of the Affordable Care Act, that doesn't 234 00:12:25,160 --> 00:12:29,160 Speaker 1: necessarily mean and she would vote with the challengers in 235 00:12:29,200 --> 00:12:32,400 Speaker 1: this case, although the fate of the Affordable Care Acts 236 00:12:32,440 --> 00:12:38,040 Speaker 1: certainly did become a lot more precarious on Justice Ginsburg's passing, 237 00:12:38,240 --> 00:12:42,400 Speaker 1: because to date, every judge who has been appointed by 238 00:12:42,440 --> 00:12:46,800 Speaker 1: a Republican president has endorsed the challenger's arguments, finding that 239 00:12:46,920 --> 00:12:50,520 Speaker 1: the Affordable Care Act as amended is unconstitutional and that 240 00:12:50,679 --> 00:12:53,080 Speaker 1: some of the other provisions in the Affordable Care Act 241 00:12:53,160 --> 00:12:56,960 Speaker 1: have to fall together with that, including its protections for 242 00:12:57,000 --> 00:13:00,760 Speaker 1: people with pre existing conditions. Okay, many thanks, really appreciate 243 00:13:00,800 --> 00:13:03,000 Speaker 1: your being with us. That's Leo Littman. She's professor of 244 00:13:03,000 --> 00:13:06,240 Speaker 1: constitutional law at the University of Michigan. Sources tell us 245 00:13:06,240 --> 00:13:09,040 Speaker 1: President Trump views the judge as a smart, hard nosed 246 00:13:09,040 --> 00:13:12,199 Speaker 1: conservative who can have a long tenure on the High Court, 247 00:13:12,640 --> 00:13:15,200 Speaker 1: But how will her legal views shape the Court's approach 248 00:13:15,240 --> 00:13:18,200 Speaker 1: to the economy and to business. Joining us now to 249 00:13:18,240 --> 00:13:21,679 Speaker 1: help answer that question is Ellen Werman. He is associate 250 00:13:21,679 --> 00:13:24,200 Speaker 1: professor at the Sandra Day O'Connor College of Law at 251 00:13:24,240 --> 00:13:29,439 Speaker 1: Arizona State University. Professor Werman specializes in administrative and constitutional law. 252 00:13:29,520 --> 00:13:31,640 Speaker 1: So welcome, professor, it's great to have you here. We 253 00:13:31,679 --> 00:13:33,880 Speaker 1: tend to think about Supreme Court at least the popular 254 00:13:33,920 --> 00:13:36,280 Speaker 1: culture in terms of abortion and gun control. But there 255 00:13:36,320 --> 00:13:37,800 Speaker 1: are a lot of things the court does that really 256 00:13:37,840 --> 00:13:40,720 Speaker 1: affect business as well. Do we have any sense of 257 00:13:40,840 --> 00:13:44,760 Speaker 1: how a Judge Barrett becoming a justice Barrett might affect business? 258 00:13:45,160 --> 00:13:47,319 Speaker 1: This is a hot topic sort of among lawyer circles 259 00:13:47,320 --> 00:13:50,200 Speaker 1: and legal circles, but also been among the business community. 260 00:13:50,280 --> 00:13:52,520 Speaker 1: Is the role of the administrative state, the role of 261 00:13:52,520 --> 00:13:55,160 Speaker 1: the administrative state in our constitutional system and its impact 262 00:13:55,360 --> 00:13:58,400 Speaker 1: on businesses because, you know, in the traditional separation of 263 00:13:58,440 --> 00:14:01,439 Speaker 1: powers model, Congress makes a law, the President executes the 264 00:14:01,480 --> 00:14:03,840 Speaker 1: law on the courts that judicate the law, and businesses 265 00:14:03,920 --> 00:14:05,280 Speaker 1: kind of know where to go if you want a 266 00:14:05,360 --> 00:14:07,640 Speaker 1: law pass, to go to Congress, right if you're you're 267 00:14:07,640 --> 00:14:09,240 Speaker 1: in trouble, you go to the courts and so on. 268 00:14:09,480 --> 00:14:13,280 Speaker 1: But today, more and more administrative agencies make the regulations 269 00:14:13,480 --> 00:14:16,040 Speaker 1: right that buying businesses and that affect the business community, 270 00:14:16,040 --> 00:14:18,560 Speaker 1: that tells businesses what they can and can do. These 271 00:14:18,600 --> 00:14:22,120 Speaker 1: regulations are made pursued too really really broad delegations of 272 00:14:22,120 --> 00:14:24,680 Speaker 1: power from Congress. You know, Congress likes to pass statutes 273 00:14:24,760 --> 00:14:27,120 Speaker 1: like you know, there shall be clean air, and it 274 00:14:27,200 --> 00:14:28,880 Speaker 1: leaves it up to the agencies to figure out, well, 275 00:14:28,880 --> 00:14:30,600 Speaker 1: who has to pollute less and you know the cost 276 00:14:31,120 --> 00:14:34,480 Speaker 1: on businesses, And so we may see some revival of 277 00:14:34,560 --> 00:14:37,520 Speaker 1: some older doctrines like the non delegation doctrine and other 278 00:14:37,560 --> 00:14:40,480 Speaker 1: doctrines to try to reign in the administrative state. And 279 00:14:40,480 --> 00:14:42,960 Speaker 1: and this has the potential to be a more business 280 00:14:43,000 --> 00:14:45,560 Speaker 1: friendly environment as a result of that. So when you 281 00:14:45,640 --> 00:14:48,040 Speaker 1: talk with the administrative state, you're talking I think larger 282 00:14:48,080 --> 00:14:50,360 Speaker 1: about some of what we call the independent agencies, the 283 00:14:50,440 --> 00:14:54,360 Speaker 1: f c C, the FTC, the sec that are appointed 284 00:14:54,480 --> 00:14:58,560 Speaker 1: by political people, but actually they have some tenure beyond that. 285 00:14:58,560 --> 00:15:01,280 Speaker 1: That's right, and it's not just of these independent agencies, 286 00:15:01,320 --> 00:15:03,600 Speaker 1: the so called independent commissions. What makes them independent is 287 00:15:03,600 --> 00:15:06,560 Speaker 1: that they're somewhat insulated from the president's ability to fire them. 288 00:15:06,680 --> 00:15:09,560 Speaker 1: They're insulated by what's called for cause removal provisions. But 289 00:15:09,680 --> 00:15:13,160 Speaker 1: also you know executive branch agencies that that aren't protected 290 00:15:13,200 --> 00:15:17,120 Speaker 1: that way, the Environmental Protection Agency OSHA, the Occupational Safety 291 00:15:17,120 --> 00:15:19,480 Speaker 1: and Health Administration under the Department of Labor. You know, 292 00:15:19,600 --> 00:15:23,880 Speaker 1: the these can be subcabinet departments. Were in theory there's 293 00:15:23,880 --> 00:15:25,800 Speaker 1: a direct line of controls of the president, but for 294 00:15:25,840 --> 00:15:29,160 Speaker 1: a large measure, They operate pretty autonomously, you know, pursuant 295 00:15:29,160 --> 00:15:32,280 Speaker 1: to these broad authorities that that Congress gives the agencies. 296 00:15:32,280 --> 00:15:34,520 Speaker 1: But yes, but independent agencies are sort of the biggest 297 00:15:34,520 --> 00:15:37,360 Speaker 1: culprit what people tend to think about FTC SEC as 298 00:15:37,360 --> 00:15:39,680 Speaker 1: you say, but it's also other, you know, other agencies 299 00:15:39,720 --> 00:15:42,640 Speaker 1: as well that aren't technically independent. But but they still 300 00:15:42,640 --> 00:15:46,120 Speaker 1: exercise a lot of autonomous power. Given how large the 301 00:15:46,120 --> 00:15:48,960 Speaker 1: country has gotten, the commerce has gotten, business has gotten 302 00:15:49,400 --> 00:15:51,480 Speaker 1: Do we have any alternative but to delegate some of this? 303 00:15:51,560 --> 00:15:54,800 Speaker 1: The president himself can administer every one of these laws. Yeah, 304 00:15:54,840 --> 00:15:57,720 Speaker 1: it's true, you know, the society has gotten more complex. 305 00:15:57,880 --> 00:16:01,280 Speaker 1: Congress doesn't have the capacity and the touching spand even 306 00:16:01,320 --> 00:16:03,480 Speaker 1: if it had the desire, you know, to to legislate 307 00:16:03,480 --> 00:16:06,400 Speaker 1: in more details. So maybe a delegation of powers inevitable. 308 00:16:06,680 --> 00:16:09,160 Speaker 1: But that doesn't mean there aren't you know, other options 309 00:16:09,200 --> 00:16:11,920 Speaker 1: and potentially business friendly options. You know. The reins Act 310 00:16:12,000 --> 00:16:15,600 Speaker 1: is an example. Ran Paul introduces it, I think every year. 311 00:16:15,880 --> 00:16:18,680 Speaker 1: The reins Act basically would say, look for important and 312 00:16:19,080 --> 00:16:22,440 Speaker 1: economically impactful regulations. The agency can go ahead and propose 313 00:16:22,480 --> 00:16:25,600 Speaker 1: the regulation, go through the process, promulgate the regulation, but 314 00:16:25,640 --> 00:16:28,280 Speaker 1: before it actually takes effect, before it has the force 315 00:16:28,320 --> 00:16:31,080 Speaker 1: and effect of actual law, Congress has to vote on it. 316 00:16:31,280 --> 00:16:33,120 Speaker 1: So Judge Barrett has been on the Seventh Circuit Court 317 00:16:33,160 --> 00:16:35,320 Speaker 1: of Appeals. Before that, she was fifteen years at Notre 318 00:16:35,400 --> 00:16:37,400 Speaker 1: Dame Law School on the faculty there. Do we have 319 00:16:37,440 --> 00:16:40,360 Speaker 1: any indication from her writings or rulings or writings how 320 00:16:40,400 --> 00:16:43,200 Speaker 1: she might come down on this issue. I really can't say. 321 00:16:43,240 --> 00:16:46,960 Speaker 1: I mean, as a general, you know, an originalist, someone 322 00:16:47,000 --> 00:16:49,400 Speaker 1: who takes the founder's intention seriously. You know, one can 323 00:16:49,440 --> 00:16:52,120 Speaker 1: assume that you'll have the same or similar views at 324 00:16:52,200 --> 00:16:55,680 Speaker 1: least to Justice Courseitch and Just Justice Kavanaugh and Justice 325 00:16:55,680 --> 00:16:57,640 Speaker 1: Thomas and so on. But you know, I consider myself 326 00:16:57,640 --> 00:16:59,160 Speaker 1: an originalist, and I have a and I write a 327 00:16:59,160 --> 00:17:00,960 Speaker 1: lot on the nondelegation in doctrine, and I have very 328 00:17:01,000 --> 00:17:04,280 Speaker 1: quirky views. You know, My view of what Congress is 329 00:17:04,280 --> 00:17:06,719 Speaker 1: a lot to delegate is actually much more capacious than 330 00:17:06,760 --> 00:17:10,840 Speaker 1: Justice Thomas's view. So there is an intra originalist disagreement 331 00:17:10,920 --> 00:17:14,000 Speaker 1: over the scope of the nondelegation doctrine, over just how 332 00:17:14,040 --> 00:17:17,119 Speaker 1: limited Congress has to be and just where you know, 333 00:17:17,160 --> 00:17:19,880 Speaker 1: the new justice will fall um you know, is yet 334 00:17:19,920 --> 00:17:22,400 Speaker 1: to be determined. Are there possible raifications to go even 335 00:17:22,440 --> 00:17:25,080 Speaker 1: beyond delegation or non delegation to the scope of the 336 00:17:25,119 --> 00:17:28,080 Speaker 1: commerce clause? Because we saw a Chief Justice Roberts, even 337 00:17:28,119 --> 00:17:30,760 Speaker 1: as he voted to uphold the Affordable Care Acts based 338 00:17:30,800 --> 00:17:33,960 Speaker 1: on the tax point, did a lot of Dictum, I thought, 339 00:17:34,000 --> 00:17:35,480 Speaker 1: at least saying, you know what, I'm not sure the 340 00:17:35,480 --> 00:17:37,760 Speaker 1: Commerce Clause goes that broadly, which would be a very 341 00:17:37,800 --> 00:17:40,760 Speaker 1: big departure from where the Supreme Court has been. Yeah, 342 00:17:40,840 --> 00:17:43,359 Speaker 1: I think that's right. Um, I I think we already 343 00:17:43,440 --> 00:17:46,080 Speaker 1: have had the votes before. As you say, under the 344 00:17:46,080 --> 00:17:48,760 Speaker 1: Affordable Care Act case, the Supreme Court basically said in 345 00:17:49,040 --> 00:17:51,080 Speaker 1: the fives or four part of its opinion that it 346 00:17:51,119 --> 00:17:53,920 Speaker 1: would violate the Commerce clause to force people into commerce. 347 00:17:54,119 --> 00:17:57,080 Speaker 1: But even then, you know, forcing people into commerce is 348 00:17:57,080 --> 00:17:59,480 Speaker 1: pretty narrow. I mean, it's not like Congress does something 349 00:17:59,520 --> 00:18:02,560 Speaker 1: like the individ to mandate that often. Right. The reality 350 00:18:02,640 --> 00:18:05,840 Speaker 1: is today almost everything affects commerce. Every you know, all 351 00:18:05,840 --> 00:18:09,040 Speaker 1: economic activity in the States affect interesting commerce somehow, and 352 00:18:09,119 --> 00:18:11,680 Speaker 1: I find it very unlikely that the Supreme Court is 353 00:18:11,720 --> 00:18:15,320 Speaker 1: going to reconsider those cases. Fascinating. This is really truly helpful. 354 00:18:15,320 --> 00:18:17,960 Speaker 1: Thank you so much to Professor Ellen Wherman. He is 355 00:18:18,119 --> 00:18:21,200 Speaker 1: from Arizona State. The pick of Barrett is likely to 356 00:18:21,320 --> 00:18:25,320 Speaker 1: energize conservatives and liberals alike, just over five weeks before 357 00:18:25,359 --> 00:18:28,400 Speaker 1: Americans go to the polls. Barrett is only forty eight 358 00:18:28,480 --> 00:18:31,840 Speaker 1: years old. She also survived a tough confirmation fight in 359 00:18:31,920 --> 00:18:35,719 Speaker 1: tween with a vote that fell largely along party lines. 360 00:18:36,119 --> 00:18:38,480 Speaker 1: How will it shape up this time? Joining us to 361 00:18:38,520 --> 00:18:42,520 Speaker 1: discuss is Bloomberg Political contributors Genie's Anno and Rick Davis. 362 00:18:42,680 --> 00:18:44,919 Speaker 1: Genie is professor of political science that I own a college, 363 00:18:45,080 --> 00:18:47,919 Speaker 1: and Rick is former campaign manager for the late John McCain. 364 00:18:48,000 --> 00:18:50,280 Speaker 1: So welcome to both of you here. Genie, let me 365 00:18:50,320 --> 00:18:52,479 Speaker 1: start with you. I mean, as a practical matter, there 366 00:18:52,480 --> 00:18:53,800 Speaker 1: may be a lot of heat and light here, but 367 00:18:53,880 --> 00:18:55,359 Speaker 1: is there any question about how this is going to 368 00:18:55,440 --> 00:18:58,120 Speaker 1: come out as a practical matter. As a practical matter, 369 00:18:58,200 --> 00:19:00,560 Speaker 1: I don't think so. I think it is be clear 370 00:19:00,760 --> 00:19:03,840 Speaker 1: that we are going to see not just a nomination, 371 00:19:04,000 --> 00:19:07,680 Speaker 1: but a vote on a confirmation, and barring you know, 372 00:19:07,840 --> 00:19:11,040 Speaker 1: something that comes up which is unlikely because this is 373 00:19:11,119 --> 00:19:13,680 Speaker 1: somebody who has been vetted, we are going to see 374 00:19:13,800 --> 00:19:16,159 Speaker 1: a candidate get the vote on the floor. So the 375 00:19:16,200 --> 00:19:18,720 Speaker 1: last time we had one of these Rick, remember Justice Kavanaugh, 376 00:19:18,720 --> 00:19:21,160 Speaker 1: now Justice Kavanaugh, then Judge Kevina. There was a lot 377 00:19:21,320 --> 00:19:24,560 Speaker 1: of electricity in that in that hearing from both sides. 378 00:19:24,600 --> 00:19:27,520 Speaker 1: You remember how Lindsay Graham really went after the Democrats 379 00:19:27,560 --> 00:19:30,280 Speaker 1: at one point. The republic is going to be really 380 00:19:30,320 --> 00:19:32,600 Speaker 1: going after the Democrats are given the fact that they 381 00:19:32,600 --> 00:19:34,680 Speaker 1: have the votes that they sort of lay low. Well, 382 00:19:34,720 --> 00:19:37,000 Speaker 1: I think that they're gonna lay low. They've already set 383 00:19:37,040 --> 00:19:40,320 Speaker 1: the stage. Mitch McConnell, the leader of the Senate Caucus 384 00:19:40,359 --> 00:19:43,879 Speaker 1: of Republicans, has already said that much to do about nothing. 385 00:19:44,400 --> 00:19:47,600 Speaker 1: This President gets to make his pick, and the Senate 386 00:19:47,600 --> 00:19:49,520 Speaker 1: has already counted the votes, and he's got the votes 387 00:19:49,600 --> 00:19:52,040 Speaker 1: to pass us. So he's going to play this out 388 00:19:52,040 --> 00:19:55,160 Speaker 1: as it's a foregone conclusion and try to actually make 389 00:19:55,200 --> 00:19:57,840 Speaker 1: the Democrats look like they're making much to do about nothing. 390 00:19:58,080 --> 00:19:59,520 Speaker 1: One of the things that struck me and looking at 391 00:19:59,560 --> 00:20:02,280 Speaker 1: the membership on the Jiciary Committee's you've got some centators 392 00:20:02,320 --> 00:20:04,879 Speaker 1: up for re elections and some of them not clear 393 00:20:05,119 --> 00:20:07,040 Speaker 1: how it's gonna come out. I mean, Lindsay Graham's the chair. 394 00:20:07,520 --> 00:20:09,879 Speaker 1: He certainly said how he's going to come out. But 395 00:20:09,960 --> 00:20:12,600 Speaker 1: what about Tom Tillison, even more important, maybe Joni Earns 396 00:20:12,680 --> 00:20:14,560 Speaker 1: from Iowa. Rick, does she have to be a little 397 00:20:14,560 --> 00:20:16,480 Speaker 1: careful about how she plays this, You know, look, I 398 00:20:16,480 --> 00:20:19,159 Speaker 1: think all of them do. I mean, I wouldn't exclude 399 00:20:19,240 --> 00:20:21,600 Speaker 1: Lindsey Graham from the list of people who have to 400 00:20:21,640 --> 00:20:24,000 Speaker 1: pay attention to the politics of this. He was in 401 00:20:24,040 --> 00:20:29,000 Speaker 1: pretty bad shape before Kavanaugh and attributes to kavanaugh defense 402 00:20:29,119 --> 00:20:32,359 Speaker 1: to helping him get through the primary and rebuild his 403 00:20:32,840 --> 00:20:36,640 Speaker 1: support amongst the base. So I think that as many 404 00:20:36,760 --> 00:20:41,199 Speaker 1: people as you have for you for passing a conservative judge, 405 00:20:41,280 --> 00:20:43,960 Speaker 1: I think you have an equal amount these days who 406 00:20:44,040 --> 00:20:46,560 Speaker 1: are going to be excited about the fact that you 407 00:20:47,000 --> 00:20:50,040 Speaker 1: ramrodded the process through. So even though it's not going 408 00:20:50,080 --> 00:20:52,080 Speaker 1: to be a decision of whether you're gonna win or 409 00:20:52,160 --> 00:20:54,160 Speaker 1: lose on about but the fact that it is being 410 00:20:54,200 --> 00:20:58,000 Speaker 1: forced into decision before election day is going to cause 411 00:20:58,080 --> 00:21:01,000 Speaker 1: some trouble for the till US's is in the earnest 412 00:21:01,440 --> 00:21:05,440 Speaker 1: who have close races in states that intensity of vote 413 00:21:05,480 --> 00:21:07,399 Speaker 1: is going to make the difference. So, Jennie, one of 414 00:21:07,400 --> 00:21:09,720 Speaker 1: things that strikes me is, given how little time we 415 00:21:09,760 --> 00:21:13,119 Speaker 1: have before the election, who occupies the airwaves really counts 416 00:21:13,160 --> 00:21:16,040 Speaker 1: a fair amount. This will really occupy the airwaves to 417 00:21:16,119 --> 00:21:19,000 Speaker 1: some extent some of the attention of the electorate's certainly 418 00:21:19,000 --> 00:21:20,960 Speaker 1: President Trump likes it that way from his point of 419 00:21:21,000 --> 00:21:23,000 Speaker 1: view for his base. But one of a Kamala Harris, 420 00:21:23,040 --> 00:21:26,159 Speaker 1: she's on this committee too, and she's been pretty effective 421 00:21:26,240 --> 00:21:30,040 Speaker 1: as a prosecutor, as it were, in these hearings before. Yeah, absolutely, 422 00:21:30,080 --> 00:21:32,600 Speaker 1: we're going to see an awful lot of of Kamala 423 00:21:32,680 --> 00:21:36,399 Speaker 1: Harris during this this period. I think to your point, 424 00:21:36,640 --> 00:21:40,280 Speaker 1: the president is quite happy that the focus has changed 425 00:21:40,320 --> 00:21:42,919 Speaker 1: from something like COVID that he doesn't do well in 426 00:21:42,960 --> 00:21:46,240 Speaker 1: the polls on to something like this, which he feels 427 00:21:46,240 --> 00:21:50,680 Speaker 1: strongly and the data seems to support this does energize 428 00:21:50,760 --> 00:21:53,360 Speaker 1: his base. But I think one of the real interesting 429 00:21:53,440 --> 00:21:56,680 Speaker 1: questions here, when we're talking about somebody like a Kamala 430 00:21:56,720 --> 00:22:00,000 Speaker 1: Harris or a Corey Booker who's also on the committee, 431 00:22:00,240 --> 00:22:04,280 Speaker 1: or you know, an Amy Klobasher, is is this going to, 432 00:22:04,520 --> 00:22:07,840 Speaker 1: for the first time, maybe since the early seventies, really 433 00:22:08,000 --> 00:22:11,480 Speaker 1: energize the left as well. Um for a long time, 434 00:22:11,560 --> 00:22:14,400 Speaker 1: because it was Republicans who felt like they were losing 435 00:22:14,440 --> 00:22:17,439 Speaker 1: as a result of these judiciary picks and the makeup 436 00:22:17,440 --> 00:22:19,760 Speaker 1: of the Supreme Court. They were the ones that were 437 00:22:19,800 --> 00:22:22,920 Speaker 1: so focused on the makeup and voting on this type 438 00:22:22,920 --> 00:22:25,639 Speaker 1: of issue. But we're seeing just a lot of energy 439 00:22:25,640 --> 00:22:28,639 Speaker 1: on the left of you know, ninety million dollars raised 440 00:22:28,640 --> 00:22:32,800 Speaker 1: in the twenty four hour period after Ruth bader Ginsburg past. 441 00:22:33,040 --> 00:22:35,439 Speaker 1: So I do think there is a question as to 442 00:22:35,600 --> 00:22:38,879 Speaker 1: who this energizes, and I'm not sure we're going to 443 00:22:38,920 --> 00:22:41,720 Speaker 1: know the answer to that until we see turnout in 444 00:22:41,760 --> 00:22:45,240 Speaker 1: the election. Well, Rick, you've managed these campaigns, including for 445 00:22:45,320 --> 00:22:48,720 Speaker 1: president have of John McCain. Is this something that's big 446 00:22:48,800 --> 00:22:51,560 Speaker 1: enough that could actually change the order of preference in 447 00:22:51,640 --> 00:22:54,040 Speaker 1: terms of what people are concerned about? Before this, we 448 00:22:54,119 --> 00:22:57,360 Speaker 1: thought we knew pretty much it's the economy, and it's coronavirus, 449 00:22:57,800 --> 00:23:01,240 Speaker 1: maybe some healthcare. Could this really elevate this issue a 450 00:23:01,400 --> 00:23:04,800 Speaker 1: social values issue up the ladder. You know, it's got 451 00:23:04,800 --> 00:23:06,960 Speaker 1: a lot of competition. As you point out, COVID and 452 00:23:07,000 --> 00:23:11,480 Speaker 1: the economy have dominated the political scenes since March, and 453 00:23:11,640 --> 00:23:14,440 Speaker 1: social unrest that's happening all around the country and most 454 00:23:14,480 --> 00:23:18,760 Speaker 1: notably even this week in Louisville, has been the issue 455 00:23:18,800 --> 00:23:24,119 Speaker 1: that has really sprung into this presidential campaign, mostly the 456 00:23:24,560 --> 00:23:29,159 Speaker 1: Supreme Court politics revolve around the activists and the folks 457 00:23:29,160 --> 00:23:32,240 Speaker 1: who really followed this on a partisan basis. So the 458 00:23:32,280 --> 00:23:35,800 Speaker 1: likelihood that this is going to somehow change swing voters 459 00:23:35,880 --> 00:23:39,000 Speaker 1: minds as to how this is conducted, it is probably unlikely. 460 00:23:39,080 --> 00:23:41,800 Speaker 1: I would say as a campaign manager, I hated things 461 00:23:41,840 --> 00:23:44,479 Speaker 1: like this because if I were running the Trump campaign 462 00:23:44,520 --> 00:23:46,840 Speaker 1: and I had to make up a lot of ground, 463 00:23:47,080 --> 00:23:48,919 Speaker 1: I would look at this issue is saying this is 464 00:23:48,960 --> 00:23:51,080 Speaker 1: not what's going to get me swing voters, and I'm 465 00:23:51,119 --> 00:23:54,639 Speaker 1: now going to freeze the election for at least a 466 00:23:54,680 --> 00:23:58,119 Speaker 1: week after I had nominate this person to all the 467 00:23:58,160 --> 00:24:01,199 Speaker 1: media attention. It's going to go on them instead of 468 00:24:01,240 --> 00:24:05,040 Speaker 1: my candidate. And so I must say, freezing an election 469 00:24:05,440 --> 00:24:08,080 Speaker 1: in the first week of October is not my idea 470 00:24:08,080 --> 00:24:10,639 Speaker 1: of a good strategy. Well, that's fast, and so Jenny, 471 00:24:10,680 --> 00:24:13,680 Speaker 1: give me a sense, how does Senator McSally in Arizona 472 00:24:13,720 --> 00:24:16,200 Speaker 1: feel about this right now? Or form or Jonny Arst 473 00:24:16,240 --> 00:24:18,480 Speaker 1: we just talked about. We have some Republicans who are, 474 00:24:18,680 --> 00:24:21,719 Speaker 1: as it were, on the bubble here. Yeah. Absolutely, And 475 00:24:21,800 --> 00:24:25,119 Speaker 1: of course the Arizona race you mentioned is really really 476 00:24:25,160 --> 00:24:28,320 Speaker 1: critical because depending on the timing. I mean, we know 477 00:24:28,480 --> 00:24:31,800 Speaker 1: there will be a nomination and a confirmation hearing, we 478 00:24:31,880 --> 00:24:34,159 Speaker 1: don't know the timing of any of this yet. And 479 00:24:34,200 --> 00:24:37,679 Speaker 1: depending on the timing, if we do see this drag 480 00:24:37,720 --> 00:24:41,000 Speaker 1: on after the election and Kelly wins out in Arizona, 481 00:24:41,600 --> 00:24:43,960 Speaker 1: he could be in Congress and have a vote on 482 00:24:44,040 --> 00:24:45,800 Speaker 1: this if he gets to the floor, which I assume 483 00:24:45,840 --> 00:24:48,159 Speaker 1: it will. So you know this, there's a lot of 484 00:24:48,240 --> 00:24:51,560 Speaker 1: uncertainty here. And you know, you mentioned some of these 485 00:24:51,600 --> 00:24:54,680 Speaker 1: Republican senators who are on the CUSP, whether it's Joni 486 00:24:54,720 --> 00:24:58,040 Speaker 1: Earnest or mcshally, who are you know, quote unquote fighting 487 00:24:58,080 --> 00:25:00,760 Speaker 1: for their lives to a certain extent, I think it 488 00:25:00,840 --> 00:25:03,439 Speaker 1: raises an issue for many of these senators, which is 489 00:25:03,480 --> 00:25:07,080 Speaker 1: that they also need to be home campaigning and not 490 00:25:07,240 --> 00:25:10,480 Speaker 1: necessarily on this issue. And I think Rick just raised 491 00:25:10,480 --> 00:25:12,720 Speaker 1: a really good point about the campaign. I think this 492 00:25:12,880 --> 00:25:15,920 Speaker 1: is one reason you see the Democrats and you see 493 00:25:16,000 --> 00:25:19,520 Speaker 1: Joe Biden trying to tie this so directly to healthcare, 494 00:25:20,000 --> 00:25:22,720 Speaker 1: because not only does the Court have the healthcare case 495 00:25:22,760 --> 00:25:25,639 Speaker 1: on the Obamacare case on November tent, but that is 496 00:25:25,680 --> 00:25:29,399 Speaker 1: also something that helps Democrats win the election in and 497 00:25:29,440 --> 00:25:32,600 Speaker 1: take the House and knowing what Rick said. They want 498 00:25:32,600 --> 00:25:36,080 Speaker 1: to tie the importance of this nomination to the idea 499 00:25:36,119 --> 00:25:39,040 Speaker 1: not just of something like a social issue like abortion, 500 00:25:39,440 --> 00:25:42,920 Speaker 1: but something that hits people even more directly. And we've 501 00:25:42,960 --> 00:25:44,760 Speaker 1: seen it have an impact at the ballot box, and 502 00:25:44,800 --> 00:25:47,360 Speaker 1: that's healthcare. And so they're trying to put the fear 503 00:25:47,400 --> 00:25:50,680 Speaker 1: of God in people that this could make something like 504 00:25:50,960 --> 00:25:55,400 Speaker 1: you know, pre existing conditions and impact the Affordable Care Act. Yeah, 505 00:25:55,480 --> 00:25:57,320 Speaker 1: and I would I would just extend on that team 506 00:25:57,440 --> 00:26:01,119 Speaker 1: that Amy Cony Barrett is a big critic of a 507 00:26:01,240 --> 00:26:04,040 Speaker 1: c A. She has been hostile to it throughout her career, 508 00:26:04,680 --> 00:26:07,639 Speaker 1: and in the Republicans will make this a big deal 509 00:26:07,760 --> 00:26:10,760 Speaker 1: that this is their chance to use the court to 510 00:26:10,880 --> 00:26:13,920 Speaker 1: undermine a c A. And a lot of suburban voters 511 00:26:14,320 --> 00:26:16,679 Speaker 1: have been supportive of a c A and so this 512 00:26:16,760 --> 00:26:19,480 Speaker 1: is going to cut both ways. And and so it's 513 00:26:19,480 --> 00:26:21,560 Speaker 1: going to be interesting to see how, you know, these 514 00:26:21,560 --> 00:26:24,960 Speaker 1: swing voters react to this kind of news. Not only 515 00:26:25,000 --> 00:26:28,119 Speaker 1: a critic, she actually specificly criticized Chief Justice Roberts for 516 00:26:28,200 --> 00:26:30,679 Speaker 1: his ruling in the A c A case. So it 517 00:26:30,720 --> 00:26:32,880 Speaker 1: really sort of signals where she might well come out 518 00:26:33,240 --> 00:26:36,080 Speaker 1: in this new challenge from the administration. At the same time, Rick, 519 00:26:36,480 --> 00:26:38,560 Speaker 1: is this a little too fancy for voters just to 520 00:26:38,600 --> 00:26:41,280 Speaker 1: get from the Supreme Court to the affordal care healthcare? 521 00:26:41,560 --> 00:26:44,520 Speaker 1: I saw that Joe Biden's campaign did that just almost immediately, 522 00:26:44,520 --> 00:26:46,520 Speaker 1: within twenty four hours. That's where they were going with it, 523 00:26:46,720 --> 00:26:49,480 Speaker 1: after the announcement of Ruth Vader to make this a 524 00:26:49,520 --> 00:26:51,960 Speaker 1: placeholder for a debate on healthcare. They're going to be 525 00:26:52,040 --> 00:26:55,200 Speaker 1: very happy at the Biden campaign, right, And so nobody's 526 00:26:55,200 --> 00:26:59,440 Speaker 1: nobody is trying to make a case that somehow the 527 00:26:59,440 --> 00:27:03,040 Speaker 1: selection of a judge is going to somehow on its 528 00:27:03,119 --> 00:27:05,840 Speaker 1: own being issue. But their their views on a c 529 00:27:06,000 --> 00:27:09,400 Speaker 1: as you just pointed out, are pretty clear and undeniable. 530 00:27:09,480 --> 00:27:11,479 Speaker 1: And so the Republicans will lean in and say, this 531 00:27:11,560 --> 00:27:13,080 Speaker 1: is our chance to get rid of a c A. 532 00:27:13,600 --> 00:27:16,000 Speaker 1: We haven't been able to do it legislatively, but we 533 00:27:16,040 --> 00:27:18,320 Speaker 1: can do it, you know, through the court. In North Carolina, 534 00:27:18,440 --> 00:27:21,199 Speaker 1: Donald Trump was out talking about a c A and 535 00:27:21,480 --> 00:27:24,439 Speaker 1: his new plan once it's gotten rid of that he 536 00:27:24,440 --> 00:27:27,400 Speaker 1: will implement. So you can tell both sides are girding 537 00:27:27,480 --> 00:27:30,120 Speaker 1: for the emergence of health care is being the sort 538 00:27:30,119 --> 00:27:33,960 Speaker 1: of October surprise issue. Finally, Jeannie I wonder if in 539 00:27:34,000 --> 00:27:36,720 Speaker 1: an election already people were pretty motivated on the one 540 00:27:36,760 --> 00:27:39,120 Speaker 1: thing that ensures is people are going to vote, whether 541 00:27:39,119 --> 00:27:41,239 Speaker 1: it's by showing up by mail. And this is going 542 00:27:41,280 --> 00:27:44,280 Speaker 1: to motivate, as I say, both conservatives and liberals potentially 543 00:27:44,400 --> 00:27:47,720 Speaker 1: to make sure they cast a vote. Yeah. I think, 544 00:27:47,760 --> 00:27:50,879 Speaker 1: you know, there's so many issues on the table right 545 00:27:50,880 --> 00:27:52,960 Speaker 1: now that are so important to people. Were in the 546 00:27:53,000 --> 00:27:56,240 Speaker 1: midst of a pandemic. Obviously, you've got all the racial 547 00:27:56,280 --> 00:27:59,679 Speaker 1: and social unrest, You've got questions about, you know, at 548 00:27:59,680 --> 00:28:01,720 Speaker 1: the same city of your vote when you go in, 549 00:28:02,080 --> 00:28:04,199 Speaker 1: and then of course you you top it off with 550 00:28:04,240 --> 00:28:07,480 Speaker 1: a Supreme Court potentially the President having his third picks 551 00:28:07,760 --> 00:28:10,440 Speaker 1: of the Supreme Court. And I think it really does 552 00:28:10,680 --> 00:28:13,719 Speaker 1: energize people on both sides. I go back to the 553 00:28:13,760 --> 00:28:16,680 Speaker 1: fact that because we have an electoral college, it's really 554 00:28:16,720 --> 00:28:19,720 Speaker 1: the moderate and independent voter in the middle that matters. 555 00:28:20,040 --> 00:28:22,159 Speaker 1: And I think where they come down and if this 556 00:28:22,359 --> 00:28:25,120 Speaker 1: motivates them, it's the real question to watch in places 557 00:28:25,160 --> 00:28:28,399 Speaker 1: like Florida and North Carolina and Wisconsin and Michigan, and 558 00:28:28,400 --> 00:28:31,600 Speaker 1: the polls suggests aren't very many of those decided left. Okay, 559 00:28:31,720 --> 00:28:35,879 Speaker 1: many thanks to Bloomberg political contributors jennie's Ao and Rick Davis. 560 00:28:37,200 --> 00:28:40,400 Speaker 1: This is a Bloomberg Radio special selecting the next Supreme 561 00:28:40,400 --> 00:28:43,560 Speaker 1: Court Justice. Stay tuned to Bloomberg Radio in the days 562 00:28:43,560 --> 00:28:45,560 Speaker 1: and weeks ahead for the latest on the fight to 563 00:28:45,600 --> 00:28:48,920 Speaker 1: confirm Judge emy Cony Barrett to the High Court, plus 564 00:28:48,960 --> 00:28:51,200 Speaker 1: the latest on the race for the White House, including 565 00:28:51,200 --> 00:28:54,080 Speaker 1: the first presidential debate. This Tuesday night, We'll bring you 566 00:28:54,120 --> 00:28:56,840 Speaker 1: live coverage and analysis starting at eight thirty Wall Street 567 00:28:56,920 --> 00:29:00,800 Speaker 1: Time on both Bloomberg Radio and television. Thanks for listening. 568 00:29:00,920 --> 00:29:06,840 Speaker 1: I'm David Weston and this is Bloomberg. M HM.