1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,600 --> 00:00:12,639 Speaker 2: This term, the Supreme Court has already decided more cases 3 00:00:12,720 --> 00:00:17,439 Speaker 2: split down ideological lines than in the entire previous term, 4 00:00:17,680 --> 00:00:21,520 Speaker 2: and on Tuesday, the Court handed down five decisions. Four 5 00:00:21,560 --> 00:00:24,919 Speaker 2: were by six to three votes, with the conservative Republican 6 00:00:24,960 --> 00:00:30,000 Speaker 2: appointees in the majority and the Liberal Democratic appointees in dissent. 7 00:00:30,520 --> 00:00:34,519 Speaker 2: These included rulings that basically went against the religious rights 8 00:00:34,520 --> 00:00:38,400 Speaker 2: of inmates, against the rights of Green card holders re 9 00:00:38,560 --> 00:00:43,040 Speaker 2: entering the country, against suits for violations of human rights, 10 00:00:43,440 --> 00:00:48,120 Speaker 2: but in favor of corporations bringing property claims in Cuba. 11 00:00:48,600 --> 00:00:52,440 Speaker 2: Focusing now on one of those decisions, the Court's conservatives 12 00:00:52,479 --> 00:00:57,200 Speaker 2: put new limits on lawsuits alleging human rights violations against 13 00:00:57,240 --> 00:01:02,720 Speaker 2: corporations over atrocities abroad, effectively putting an end to these 14 00:01:02,760 --> 00:01:07,000 Speaker 2: suits over human rights abuses. In a six to three vote, 15 00:01:07,040 --> 00:01:10,880 Speaker 2: the court granted tech giant Cisco's bid to shut down 16 00:01:10,959 --> 00:01:14,880 Speaker 2: a lawsuit alleging that the company work closely with China 17 00:01:14,920 --> 00:01:19,240 Speaker 2: to create the country's Golden Shield surveillance system, which allowed 18 00:01:19,280 --> 00:01:24,200 Speaker 2: officials to identify, apprehend, and torture members of the Fello 19 00:01:24,319 --> 00:01:29,559 Speaker 2: Goong spiritual movement in China. Cisco has denied allegations of wrongdoing. 20 00:01:30,240 --> 00:01:33,880 Speaker 2: My guest is an expert in international law. Curtis Bradley, 21 00:01:34,160 --> 00:01:38,080 Speaker 2: a professor at the University of Chicago Law School, tell 22 00:01:38,160 --> 00:01:42,959 Speaker 2: us about this lawsuit by twelve Chinese nationals and one 23 00:01:43,080 --> 00:01:45,240 Speaker 2: US citizen suing Cisco. 24 00:01:45,800 --> 00:01:49,040 Speaker 1: So, the Cisco case was a suit brought by the 25 00:01:49,120 --> 00:01:53,000 Speaker 1: Fallangong religious group from China at least a number of 26 00:01:53,000 --> 00:01:56,120 Speaker 1: members of that organization. They were suing not China in 27 00:01:56,160 --> 00:01:59,320 Speaker 1: this case, but Cisco Systems, the computer company in the 28 00:01:59,400 --> 00:02:03,560 Speaker 1: United States, and their argument was that Cisco had aided 29 00:02:03,600 --> 00:02:08,079 Speaker 1: and abedded persecution of the Felongong in China by supplying 30 00:02:08,280 --> 00:02:12,960 Speaker 1: Chinese government with surveillance technology basically, And the lower court 31 00:02:13,000 --> 00:02:16,040 Speaker 1: had allowed this case to go forward, and the Supreme 32 00:02:16,120 --> 00:02:18,480 Speaker 1: Court said that it could not go forward, and they 33 00:02:18,720 --> 00:02:22,120 Speaker 1: issued a pretty important ruling about this type of human 34 00:02:22,200 --> 00:02:25,200 Speaker 1: rights litigation which has been pretty active for the last 35 00:02:25,200 --> 00:02:28,639 Speaker 1: thirty years. And the court's decision in Cisco, I think 36 00:02:28,720 --> 00:02:30,920 Speaker 1: largely is going to put an end to these human 37 00:02:31,000 --> 00:02:33,480 Speaker 1: rights cases brought against corporations. 38 00:02:33,680 --> 00:02:38,559 Speaker 2: Was the issue whether the Alien Towards Statute creates liability 39 00:02:38,600 --> 00:02:41,720 Speaker 2: for corporations that aid and abet human rights abuse. 40 00:02:42,040 --> 00:02:44,840 Speaker 1: Yeah, the cases based on this old statute called the 41 00:02:44,840 --> 00:02:47,760 Speaker 1: Alien Tort Statute. It's actually been on the books for 42 00:02:48,120 --> 00:02:50,600 Speaker 1: you know, since the beginning of the country seventeen eighty nine, 43 00:02:51,280 --> 00:02:54,760 Speaker 1: but it has just been used for human rights litigation 44 00:02:55,400 --> 00:02:59,120 Speaker 1: really during the last thirty or forty years. And what 45 00:02:59,160 --> 00:03:03,120 Speaker 1: the Court held in the Cisco case was, effectively it 46 00:03:03,160 --> 00:03:05,799 Speaker 1: cannot be used for human rights. Cli know. One way 47 00:03:05,800 --> 00:03:10,400 Speaker 1: to translate the decision. They basically said the statute doesn't 48 00:03:10,400 --> 00:03:13,760 Speaker 1: have enough indication in it that Congress has wanted these 49 00:03:13,919 --> 00:03:17,480 Speaker 1: human rights cases to go forward. So unless Congress amends 50 00:03:17,480 --> 00:03:20,120 Speaker 1: the statue, the Court is really putting an end to 51 00:03:20,120 --> 00:03:23,679 Speaker 1: those cases. It did say that the statue could be 52 00:03:23,800 --> 00:03:27,000 Speaker 1: used for a few personal injury type claims that would 53 00:03:27,000 --> 00:03:29,240 Speaker 1: have been around in the seventeen eighties, but they're not 54 00:03:29,320 --> 00:03:33,400 Speaker 1: ones that we ever see today anymore. So this Cisco 55 00:03:33,480 --> 00:03:36,520 Speaker 1: case basically says Congress will have to provide a new 56 00:03:36,560 --> 00:03:39,800 Speaker 1: statue if plaintiffs are going to be able to sue 57 00:03:39,800 --> 00:03:43,520 Speaker 1: for human rights abuses occurring in various countries. And that's 58 00:03:43,720 --> 00:03:46,960 Speaker 1: that's an important ruling because there have been many cases 59 00:03:47,000 --> 00:03:50,880 Speaker 1: for human rights abuses brought for atrocities from around the world, 60 00:03:50,960 --> 00:03:53,680 Speaker 1: and they've been brought into US courts under this old 61 00:03:53,720 --> 00:03:57,480 Speaker 1: Alien Torch statue, and the Supreme Court had composed a 62 00:03:57,560 --> 00:04:01,240 Speaker 1: variety of restrictions on that litigation really in the last 63 00:04:01,440 --> 00:04:04,120 Speaker 1: of fifteen years or so. But this is a more 64 00:04:04,200 --> 00:04:08,280 Speaker 1: dramatic limit because it effectively just ends any more Alien 65 00:04:08,320 --> 00:04:09,880 Speaker 1: Towart Statute litigation. I think. 66 00:04:10,400 --> 00:04:13,320 Speaker 2: So the Alien Towart Statute is only thirty three words. 67 00:04:13,400 --> 00:04:15,520 Speaker 2: I'm going to read it. The district court shall have 68 00:04:15,560 --> 00:04:19,120 Speaker 2: original jurisdiction of any civil action by an alien for 69 00:04:19,200 --> 00:04:22,200 Speaker 2: a tourt only committed in violation of the law of 70 00:04:22,320 --> 00:04:25,599 Speaker 2: nations or a treaty of the United States. So, if 71 00:04:25,600 --> 00:04:28,840 Speaker 2: this is a court, you know, that's reading the statute 72 00:04:28,880 --> 00:04:32,360 Speaker 2: and ruling according to the words, why doesn't that cover 73 00:04:33,000 --> 00:04:34,080 Speaker 2: what's happening here? 74 00:04:34,920 --> 00:04:37,440 Speaker 1: Well, a couple of thoughts. One thing the court notes 75 00:04:37,640 --> 00:04:41,240 Speaker 1: is that until the nineteen eighties, no one thought the 76 00:04:41,279 --> 00:04:44,640 Speaker 1: statute provided a cause of action a claim for human 77 00:04:44,720 --> 00:04:47,520 Speaker 1: rights abuses. And the words that you just read are 78 00:04:47,520 --> 00:04:50,560 Speaker 1: not really written in terms of a claim statute. All 79 00:04:50,600 --> 00:04:53,719 Speaker 1: they say is that the courts have jurisdiction, that is 80 00:04:53,760 --> 00:04:57,359 Speaker 1: that they're available to hear certain kinds of tort cases, 81 00:04:57,400 --> 00:05:00,159 Speaker 1: but they don't really provide what we today would call 82 00:05:00,120 --> 00:05:02,720 Speaker 1: the cause of action, that is, a right to seek 83 00:05:02,839 --> 00:05:06,200 Speaker 1: damages or other relief. And at least in the modern era, 84 00:05:06,960 --> 00:05:11,440 Speaker 1: courts wait until Congress provides an actual claim statute before 85 00:05:11,480 --> 00:05:14,479 Speaker 1: it starts giving people the right to sue for damages. 86 00:05:14,839 --> 00:05:17,200 Speaker 1: But in the alien tort statue cases, courts had been 87 00:05:17,240 --> 00:05:20,359 Speaker 1: allowing suits for damages even though I don't think the 88 00:05:20,400 --> 00:05:25,320 Speaker 1: statute really addresses that. The other thing the Court mentions 89 00:05:26,279 --> 00:05:30,480 Speaker 1: is that suits for these torts around the world inherently 90 00:05:30,560 --> 00:05:34,520 Speaker 1: raise foreign policy issues. Sometimes they might promote some good 91 00:05:34,600 --> 00:05:38,160 Speaker 1: in terms of human rights improvement, but they also sometimes 92 00:05:38,200 --> 00:05:42,359 Speaker 1: create lots of conflicts with other countries. And the Court 93 00:05:42,400 --> 00:05:46,520 Speaker 1: thought that if Congress really wants that type of litigation, 94 00:05:47,200 --> 00:05:51,039 Speaker 1: it needs to address those foreign policy issues more specifically, 95 00:05:51,040 --> 00:05:54,400 Speaker 1: and just citing a statue from seventeen eighty nine doesn't 96 00:05:54,480 --> 00:05:58,200 Speaker 1: really show Congress as addressed all the foreign policy trade 97 00:05:58,240 --> 00:06:02,800 Speaker 1: offs the human rights cases today, and so effectively, the 98 00:06:02,839 --> 00:06:04,760 Speaker 1: Court's just pushing this over to Carnas. 99 00:06:05,040 --> 00:06:08,800 Speaker 2: The three liberals were in descent. Just as Sodo Mayor said, 100 00:06:09,000 --> 00:06:11,839 Speaker 2: the Court's decision today is yet another notch in its belt, 101 00:06:11,960 --> 00:06:15,840 Speaker 2: unabashedly remaking the law on its preferred image, and the 102 00:06:15,880 --> 00:06:20,240 Speaker 2: majority jettison's two decades of settled precedent and breathes new 103 00:06:20,320 --> 00:06:24,559 Speaker 2: life into two decades of rejected legal theories. I mean, 104 00:06:24,839 --> 00:06:28,000 Speaker 2: only twenty years ago, the Supreme Court held the opposite 105 00:06:28,040 --> 00:06:29,280 Speaker 2: of what the court's holding here. 106 00:06:29,880 --> 00:06:32,680 Speaker 1: That is sort of true. There's a two thousand and 107 00:06:32,720 --> 00:06:37,520 Speaker 1: four decision. It's called Sosa versus Alvar's Machine, and Sodamora's 108 00:06:37,560 --> 00:06:42,960 Speaker 1: Descent certainly understandably emphasizes that decision because the Court there 109 00:06:43,080 --> 00:06:47,640 Speaker 1: did allow at least some cases to continue proceeding under 110 00:06:47,640 --> 00:06:50,040 Speaker 1: the alien torch statue. Now, it was a pretty limited 111 00:06:50,040 --> 00:06:55,080 Speaker 1: holding in Sosa, and the court said there should never 112 00:06:55,160 --> 00:06:58,000 Speaker 1: be a particularly robust a set of cases, and it 113 00:06:58,279 --> 00:07:02,520 Speaker 1: suggested a variety of limits the court should consider. And 114 00:07:03,320 --> 00:07:05,720 Speaker 1: since that two thousand and four decision, the Supreme Court 115 00:07:05,720 --> 00:07:09,760 Speaker 1: has never found a case to satisfy those limits from 116 00:07:09,800 --> 00:07:12,680 Speaker 1: that two thousand and four case. And so the majority 117 00:07:12,720 --> 00:07:16,840 Speaker 1: in the Cisco case says, we should just be clear 118 00:07:16,960 --> 00:07:18,960 Speaker 1: that we're just not going to find a case that 119 00:07:19,080 --> 00:07:23,560 Speaker 1: satisfies those strict limitations and just let everyone know so 120 00:07:23,600 --> 00:07:27,320 Speaker 1: they don't waste time litigating, because repeatedly the Court has 121 00:07:27,360 --> 00:07:30,280 Speaker 1: found reasons to reject those claims, and now it's just 122 00:07:30,360 --> 00:07:33,280 Speaker 1: doing so more categorically. But I think the Descent makes 123 00:07:33,320 --> 00:07:37,240 Speaker 1: a reasonable point that the court's not really giving precedential 124 00:07:37,920 --> 00:07:41,120 Speaker 1: effect to that two thousand and four case. My own view, 125 00:07:41,160 --> 00:07:43,240 Speaker 1: by the way, you know, what people disagree about this 126 00:07:43,400 --> 00:07:45,400 Speaker 1: is that the two thousand and four case is probably 127 00:07:45,440 --> 00:07:48,760 Speaker 1: wrongly decided, and I think the majority believes that to 128 00:07:48,800 --> 00:07:51,360 Speaker 1: be the case as well. But nevertheless, there's an argument 129 00:07:51,440 --> 00:07:54,720 Speaker 1: that it was entitled to some presidential weight that the 130 00:07:54,760 --> 00:07:55,720 Speaker 1: Court is not giving it. 131 00:07:56,480 --> 00:07:59,920 Speaker 2: And I mean the court has been narrowing the alien 132 00:08:00,120 --> 00:08:03,160 Speaker 2: The Roberts Court has been narrowing the alien towards statute 133 00:08:03,200 --> 00:08:06,040 Speaker 2: over the years. And I remember the twenty twenty one 134 00:08:06,080 --> 00:08:10,680 Speaker 2: decision where a lawsuit accused Cargol and a Nesli subsidiary 135 00:08:10,760 --> 00:08:15,880 Speaker 2: of knowingly perpetuating slavery of children on the Ivory Coast, 136 00:08:16,080 --> 00:08:19,160 Speaker 2: and the court said there's no cause of action there either. 137 00:08:19,520 --> 00:08:21,680 Speaker 2: If there's no cause of action, then I mean these 138 00:08:21,720 --> 00:08:25,240 Speaker 2: people have no place else to sue, right or do that? 139 00:08:25,120 --> 00:08:27,400 Speaker 1: That is, you know, one of the concerns about some 140 00:08:27,480 --> 00:08:30,840 Speaker 1: of these restrictive decisions. But the Neslie case you mentioned 141 00:08:30,880 --> 00:08:33,320 Speaker 1: and some others like it, what the Court had been 142 00:08:33,360 --> 00:08:36,440 Speaker 1: saying was that it would not allow the Alien Torch 143 00:08:36,440 --> 00:08:40,600 Speaker 1: Statute to be used for events that are entirely at 144 00:08:40,760 --> 00:08:43,320 Speaker 1: taking place in other countries that aren't really connected to 145 00:08:43,360 --> 00:08:46,800 Speaker 1: the US. What that produced was a lot of litigation 146 00:08:47,000 --> 00:08:49,880 Speaker 1: fighting over whether there was some kind of minimal connection 147 00:08:50,520 --> 00:08:53,080 Speaker 1: to say, planning or other activities in the US. And 148 00:08:53,120 --> 00:08:56,040 Speaker 1: that is just generating a lot of litigation, most of 149 00:08:56,040 --> 00:08:59,640 Speaker 1: which did not result in wins for the plaintiffs. But nevertheless, 150 00:08:59,760 --> 00:09:01,800 Speaker 1: you know, the Court thought was kind of costly for 151 00:09:01,840 --> 00:09:04,920 Speaker 1: the system, and I think the Court and Cisco thought 152 00:09:04,920 --> 00:09:08,040 Speaker 1: it'd be better just to make a more categorical rule 153 00:09:08,480 --> 00:09:11,440 Speaker 1: that we shouldn't keep litigating that now. As you mentioned, 154 00:09:12,000 --> 00:09:14,360 Speaker 1: you know, the counter argument to all of this is 155 00:09:14,760 --> 00:09:20,080 Speaker 1: there are serious atrocities being committed in various countries. Most 156 00:09:20,080 --> 00:09:23,800 Speaker 1: of the time there aren't really any available remedies for 157 00:09:23,840 --> 00:09:27,320 Speaker 1: the victims. They can't typically sue in the place of 158 00:09:27,360 --> 00:09:30,600 Speaker 1: the of the human rights abuse. Most other nations don't 159 00:09:30,640 --> 00:09:33,720 Speaker 1: allow cases like we had been allowing under the Alien 160 00:09:33,760 --> 00:09:37,840 Speaker 1: Torch Statute, they aren't really international tribunals suited for the task. 161 00:09:38,720 --> 00:09:41,199 Speaker 1: So some of the courts who like the Alien Tord 162 00:09:41,280 --> 00:09:45,920 Speaker 1: Statute litigation had said, at least that's some possibility of 163 00:09:46,000 --> 00:09:50,920 Speaker 1: redress vindication of their human rights, and that's actually a 164 00:09:50,960 --> 00:09:53,480 Speaker 1: main reason some of the lower courts had been allowing 165 00:09:54,200 --> 00:09:57,920 Speaker 1: these cases. But as the majority said in Cisco, that 166 00:09:58,000 --> 00:10:00,400 Speaker 1: might be a noble goal, it's just not clear that 167 00:10:00,520 --> 00:10:05,040 Speaker 1: Congress has endorsed that particular goal. And normally, at least today, 168 00:10:05,600 --> 00:10:08,679 Speaker 1: if we're going to allow those kinds of important claims, 169 00:10:09,000 --> 00:10:12,880 Speaker 1: somebody in the political branches, Congress particularly should actually decide 170 00:10:12,920 --> 00:10:15,920 Speaker 1: whether that makes sense, maybe put some limits in the statue. 171 00:10:15,960 --> 00:10:18,480 Speaker 1: One problem with the Eliant tor Statute, since it was 172 00:10:18,520 --> 00:10:21,240 Speaker 1: never really written as a claim statute, it doesn't actually 173 00:10:21,280 --> 00:10:23,040 Speaker 1: have any of the things we would normally find in 174 00:10:23,120 --> 00:10:26,400 Speaker 1: terms of limits, like I don't know a statute of limitations, period, 175 00:10:26,800 --> 00:10:30,200 Speaker 1: definitions of the claims you can bring. None of that's 176 00:10:30,240 --> 00:10:32,920 Speaker 1: in the statue because I don't think it was really 177 00:10:33,000 --> 00:10:35,559 Speaker 1: passed as a claim statute when it was first enacted. 178 00:10:36,280 --> 00:10:39,160 Speaker 1: And so you know, the argument of the majority is, 179 00:10:39,200 --> 00:10:43,240 Speaker 1: if it's really important to vindicate these rights, then people 180 00:10:43,280 --> 00:10:46,880 Speaker 1: should lobby Congress to try to get another human rights statute. 181 00:10:46,920 --> 00:10:49,079 Speaker 1: They got one, by the way, in the nineteen nineties. 182 00:10:49,480 --> 00:10:52,679 Speaker 1: It's called the Torture Victim Protection Act. They lobbied Congress, 183 00:10:52,960 --> 00:10:55,800 Speaker 1: Congress passed a law that you can bring claims under 184 00:10:55,800 --> 00:11:00,079 Speaker 1: that statute for torture and extra judicial killing. And the 185 00:11:01,080 --> 00:11:03,800 Speaker 1: Court has not stopped those cases, although it did limit 186 00:11:04,040 --> 00:11:07,200 Speaker 1: that statute a little bit in the Cisco case. So 187 00:11:07,520 --> 00:11:09,559 Speaker 1: that's the argument, the majority at least is that if 188 00:11:09,600 --> 00:11:12,760 Speaker 1: there's a good argument for vindicating these human rights, that's 189 00:11:12,840 --> 00:11:15,720 Speaker 1: a decision that I'd be made by Congress and the 190 00:11:15,760 --> 00:11:16,440 Speaker 1: executive brand. 191 00:11:16,600 --> 00:11:20,120 Speaker 2: In an eight to one decision, the majority said that 192 00:11:20,160 --> 00:11:23,720 Speaker 2: the Torture Victims Protection Act of nineteen ninety one, which 193 00:11:23,760 --> 00:11:28,080 Speaker 2: you just talked about, doesn't allow aiding and abetting liability claims. Well, 194 00:11:28,200 --> 00:11:30,640 Speaker 2: why not if that's the go to statute. 195 00:11:30,679 --> 00:11:34,920 Speaker 1: Now, yeah, Now, almost all the justices agreed on that holding, 196 00:11:35,200 --> 00:11:37,839 Speaker 1: except for Justice so tomorrow. And the reason is that 197 00:11:37,880 --> 00:11:40,680 Speaker 1: the Court had already said in a number of other cases, 198 00:11:40,720 --> 00:11:43,800 Speaker 1: not ones that involve human rights, but just other corporate 199 00:11:43,800 --> 00:11:47,880 Speaker 1: activity cases that aiding and a betting liability is raises 200 00:11:47,920 --> 00:11:52,400 Speaker 1: a sufficient number of policy questions that we normally require 201 00:11:52,440 --> 00:11:55,880 Speaker 1: Congress to be express when it wants to extend the 202 00:11:55,880 --> 00:11:59,080 Speaker 1: reach of a statute not just to those who did 203 00:11:59,120 --> 00:12:01,720 Speaker 1: something wrong, but those who might have helped it do 204 00:12:01,800 --> 00:12:05,040 Speaker 1: something wrong. And so there's already just case law that's 205 00:12:05,040 --> 00:12:08,720 Speaker 1: pretty strong case called Central Bank of Denver some other cases. 206 00:12:08,720 --> 00:12:11,320 Speaker 1: The Supreme Court has just said, we don't imply normally 207 00:12:11,360 --> 00:12:14,720 Speaker 1: aiding in a betting liability. We don't assume Congress does 208 00:12:14,720 --> 00:12:18,560 Speaker 1: that lightly. And there's nothing in the Torture Victim Protection 209 00:12:18,720 --> 00:12:21,839 Speaker 1: Act from nineteen ninety one that says anything about being 210 00:12:21,840 --> 00:12:25,760 Speaker 1: able to sue not just the perpetrators but also those 211 00:12:25,800 --> 00:12:27,760 Speaker 1: who might aid and a bet them. And it is 212 00:12:27,800 --> 00:12:30,320 Speaker 1: a big extension of a statute to start applying it 213 00:12:30,360 --> 00:12:33,080 Speaker 1: to others who might in some ways be connected to 214 00:12:33,160 --> 00:12:36,240 Speaker 1: the perpetrators. It's not that it's a bad idea. Sometimes 215 00:12:36,280 --> 00:12:39,320 Speaker 1: we want to go after aiders and a betters. And 216 00:12:39,440 --> 00:12:43,280 Speaker 1: so eight of the nine justices thought this was pretty 217 00:12:43,320 --> 00:12:46,160 Speaker 1: clear under their case law that you do have to 218 00:12:46,200 --> 00:12:49,079 Speaker 1: wait for Congress to make that decision expressly. 219 00:12:49,960 --> 00:12:54,240 Speaker 2: Just broadly speaking, the Roberts Court has been very pro business. 220 00:12:54,559 --> 00:12:57,679 Speaker 2: I mean, in most of these human rights lawsuits that 221 00:12:57,840 --> 00:13:01,160 Speaker 2: came up to the Court, the plaintive are suing businesses. 222 00:13:01,440 --> 00:13:02,320 Speaker 2: Is that part of. 223 00:13:02,200 --> 00:13:05,440 Speaker 1: This, well, it's complicated for the human rights cases. I 224 00:13:05,440 --> 00:13:08,319 Speaker 1: would say it is true that once they started getting 225 00:13:08,400 --> 00:13:13,280 Speaker 1: the human rights cases against corporations, they consistently held in 226 00:13:13,320 --> 00:13:16,239 Speaker 1: the corporate side of this. I agree with that. However, 227 00:13:17,080 --> 00:13:21,120 Speaker 1: you know that litigation started as suits against individual foreign 228 00:13:21,120 --> 00:13:24,360 Speaker 1: officials and others back in the eighties and nineties. It 229 00:13:24,440 --> 00:13:29,280 Speaker 1: eventually expanded into suits against corporations. But I don't think 230 00:13:29,320 --> 00:13:32,439 Speaker 1: the Supreme Court was ever fully on board even before 231 00:13:32,520 --> 00:13:36,000 Speaker 1: it became a vehicle for corporate litigation. So I think 232 00:13:36,040 --> 00:13:40,040 Speaker 1: the Court's concerns transcend the fact that it's being used 233 00:13:40,040 --> 00:13:43,720 Speaker 1: against corporations. It's really the plaintiffs have decided in the 234 00:13:43,720 --> 00:13:47,480 Speaker 1: Alien Tort Statute. They decided that corporations were just a 235 00:13:47,600 --> 00:13:51,679 Speaker 1: better defendant because they have assets, often assets in the 236 00:13:51,800 --> 00:13:55,280 Speaker 1: United States. They're sometimes willing to settle these cases for 237 00:13:55,400 --> 00:13:58,920 Speaker 1: large amounts of money. So it wasn't that the Supreme 238 00:13:58,960 --> 00:14:02,480 Speaker 1: Court had particular focused on the corporations. That just that 239 00:14:02,559 --> 00:14:07,479 Speaker 1: the increasingly those human rights cases became corporate type lawsuits. 240 00:14:07,920 --> 00:14:11,360 Speaker 1: And I think the Court's concerns about it extended beyond 241 00:14:11,400 --> 00:14:14,080 Speaker 1: the fact that it was about corporations. But it's absolutely true. 242 00:14:14,240 --> 00:14:17,480 Speaker 1: One thing that happened in that Alien torstatute litigation, which 243 00:14:17,520 --> 00:14:21,040 Speaker 1: I think did hurt the plaintiffs cause is when they 244 00:14:21,080 --> 00:14:24,240 Speaker 1: started increasingly suing corporations. They were suing a lot of 245 00:14:24,320 --> 00:14:28,520 Speaker 1: European corporations in the nineties and two thousands. That prompted 246 00:14:28,560 --> 00:14:32,360 Speaker 1: European governments to start complaining to the Supreme Court about 247 00:14:32,600 --> 00:14:35,360 Speaker 1: what this litigation had been doing. They thought the US 248 00:14:35,440 --> 00:14:38,920 Speaker 1: was being too aggressive in its courts going after their companies, 249 00:14:39,640 --> 00:14:43,240 Speaker 1: and that set of protests from the European Union and 250 00:14:43,280 --> 00:14:46,640 Speaker 1: others I think did have some influence on the Court's 251 00:14:47,000 --> 00:14:49,200 Speaker 1: view of this litigation. Not so much that they wanted 252 00:14:49,240 --> 00:14:53,280 Speaker 1: to protect corporations, but it was clear that that litigation 253 00:14:53,440 --> 00:14:58,440 Speaker 1: was producing conflict with other countries because US courts were 254 00:14:58,440 --> 00:15:02,640 Speaker 1: allowing cases against say, Dutch oil companies and others. So 255 00:15:02,680 --> 00:15:05,280 Speaker 1: I wouldn't just view this as just purely kind of 256 00:15:05,280 --> 00:15:07,880 Speaker 1: a sympathy for corporations. It was also just a worry 257 00:15:07,920 --> 00:15:12,080 Speaker 1: about was this harming US foreign relations and the executive branch, 258 00:15:12,320 --> 00:15:15,040 Speaker 1: at least in some of the administrations had that same 259 00:15:15,120 --> 00:15:20,320 Speaker 1: concern that the litigation was creating undue conflicts with allies 260 00:15:20,320 --> 00:15:24,120 Speaker 1: and others abroad, So I think it transcends the corporate 261 00:15:24,160 --> 00:15:24,520 Speaker 1: part of it. 262 00:15:24,920 --> 00:15:27,360 Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue 263 00:15:27,400 --> 00:15:31,200 Speaker 2: this conversation with Professor Curtis Bradley of the University of 264 00:15:31,280 --> 00:15:35,680 Speaker 2: Chicago Law School. The Supreme Court revived a one billion 265 00:15:35,760 --> 00:15:40,600 Speaker 2: dollars suit by Exon against a Cuban conglomerate for operating 266 00:15:40,680 --> 00:15:45,320 Speaker 2: oil and gas assets seized in nineteen sixty. You're listening 267 00:15:45,360 --> 00:15:48,720 Speaker 2: to Bloomberg. I've been talking to Professor Curtis Bradley of 268 00:15:48,760 --> 00:15:52,920 Speaker 2: the University of Chicago Law School KURK. While the Conservatives 269 00:15:52,920 --> 00:15:58,600 Speaker 2: are not allowing human rights lawsuits against corporations over atrocities abroad, 270 00:15:59,240 --> 00:16:02,200 Speaker 2: they are allow showing a one billion dollars suit by 271 00:16:02,360 --> 00:16:07,480 Speaker 2: Exon against a Cuban conglomerate for operating oil and gas 272 00:16:07,520 --> 00:16:11,880 Speaker 2: assets seized in nineteen sixty in Cuba following the country's 273 00:16:11,920 --> 00:16:15,240 Speaker 2: communist revolution, and that was also by a six to 274 00:16:15,240 --> 00:16:20,000 Speaker 2: three vote down idiological lines. Quite a contrast there. 275 00:16:20,280 --> 00:16:23,600 Speaker 1: Yes, absolutely, in some ways they look like decisions that 276 00:16:23,680 --> 00:16:28,000 Speaker 1: have been in conflict in that the Cisco case shuts 277 00:16:28,040 --> 00:16:32,760 Speaker 1: down international type claims because they're worried about the foreign 278 00:16:32,800 --> 00:16:38,640 Speaker 1: policy implications. The Exon Mobile case allows pretty aggressive international 279 00:16:38,880 --> 00:16:44,160 Speaker 1: claims against at least Cuban entities and others. And so 280 00:16:44,240 --> 00:16:48,920 Speaker 1: how do you reconcile those? Well, one way possibly of reconcile. 281 00:16:49,000 --> 00:16:52,040 Speaker 1: And I think the court and the Exon case had 282 00:16:52,080 --> 00:16:55,360 Speaker 1: the view that Congress and the Executive really did support 283 00:16:55,640 --> 00:16:59,880 Speaker 1: aggressive legal claims against Cuba and companies, you know, trans 284 00:17:00,080 --> 00:17:03,320 Speaker 1: acting with Cuba. And that's probably to some extent true. 285 00:17:03,640 --> 00:17:06,119 Speaker 1: You know, the statute in the Exon case is you know, 286 00:17:06,240 --> 00:17:10,119 Speaker 1: relatively recent one compared to the Alien Torch statute. It 287 00:17:10,200 --> 00:17:12,920 Speaker 1: was enacted in the nineties. It's called the Helms Burton Act, 288 00:17:13,359 --> 00:17:17,159 Speaker 1: and it has aggressive provisions allowing suits against anyone who 289 00:17:17,280 --> 00:17:22,360 Speaker 1: traffics in property, you know, confiscated by the Castro Cuban government. 290 00:17:22,520 --> 00:17:26,200 Speaker 1: And it does have language allowing suit against even against 291 00:17:26,240 --> 00:17:31,080 Speaker 1: government entities that transact in that confiscated property. So at 292 00:17:31,160 --> 00:17:33,600 Speaker 1: least the court in the Exon case has stronger and 293 00:17:33,720 --> 00:17:38,080 Speaker 1: clear statutory language I think, to work with in allowing 294 00:17:38,119 --> 00:17:40,320 Speaker 1: the claims. I think that it would certainly say that 295 00:17:40,359 --> 00:17:43,040 Speaker 1: if it were going to distinguish it from the Cisco case. 296 00:17:43,080 --> 00:17:45,760 Speaker 1: I actually think it's kind of a pretty close call 297 00:17:45,840 --> 00:17:48,840 Speaker 1: in my view about the statutory language in the Exon case. 298 00:17:48,920 --> 00:17:52,240 Speaker 1: So I thought the dissenting justices there, Justice Kagan wrote, 299 00:17:52,320 --> 00:17:54,800 Speaker 1: wrote the dissent, I thought they had some reasonable counter 300 00:17:54,920 --> 00:17:58,000 Speaker 1: arguments about the statute. But I think if you were 301 00:17:58,000 --> 00:18:00,440 Speaker 1: going to reconcile the two cases, I think the courts 302 00:18:00,520 --> 00:18:04,800 Speaker 1: view is, yes, suits against Cuba and other companies doing 303 00:18:04,800 --> 00:18:08,520 Speaker 1: business with Cuba raise foreign policy concerns, but it looks 304 00:18:08,520 --> 00:18:13,640 Speaker 1: like Congress and the executive are willing to implicate those concerns, 305 00:18:13,640 --> 00:18:15,720 Speaker 1: whereas they were not sure that was the case for 306 00:18:15,760 --> 00:18:16,800 Speaker 1: the human rights cases. 307 00:18:17,040 --> 00:18:20,080 Speaker 2: Explain why the liberal justices dissented. 308 00:18:20,560 --> 00:18:25,240 Speaker 1: Yeah, So Justice Kagan's dissent focuses primarily on statutory language. 309 00:18:25,720 --> 00:18:30,560 Speaker 1: And the United States has had a very comprehensive law 310 00:18:31,160 --> 00:18:36,119 Speaker 1: that gives immunity to foreign governments and government owned companies 311 00:18:36,160 --> 00:18:39,440 Speaker 1: and entities. They've had this law since nineteen seventy six, 312 00:18:40,480 --> 00:18:44,320 Speaker 1: and it broadly gives immunity to foreign governments and their 313 00:18:44,480 --> 00:18:49,239 Speaker 1: entities unless one of a set of specified exceptions than 314 00:18:49,240 --> 00:18:52,119 Speaker 1: the statute are meant. And it wasn't clear any of 315 00:18:52,160 --> 00:18:56,840 Speaker 1: those exceptions would work here in this exton case. And 316 00:18:56,960 --> 00:19:00,920 Speaker 1: so Kagan's argument dissent is, you know there's a statute here. 317 00:19:01,000 --> 00:19:03,640 Speaker 1: It says there's immunity, and no one has shown that 318 00:19:03,680 --> 00:19:06,240 Speaker 1: you've met any of the exceptions. And she pointed out 319 00:19:06,320 --> 00:19:09,160 Speaker 1: that the Helm's Burden Act, which gives this claim for 320 00:19:09,520 --> 00:19:13,479 Speaker 1: suing entities that traffic and confiscated property, doesn't have anything 321 00:19:13,480 --> 00:19:16,480 Speaker 1: in it about immunity. It doesn't say there's an exception 322 00:19:16,560 --> 00:19:20,320 Speaker 1: to immunity. It doesn't reference the Foreign Sovereign Immunity Statute. 323 00:19:20,840 --> 00:19:23,639 Speaker 1: So Kagan's argument of dissent is, we can reconcile these 324 00:19:23,680 --> 00:19:26,680 Speaker 1: statutes by saying, yes, you have a cause of action 325 00:19:26,800 --> 00:19:30,040 Speaker 1: under the Hells Burton Law, but if you're suing a 326 00:19:30,119 --> 00:19:33,200 Speaker 1: government owned entity, as they were in this exton case, 327 00:19:33,840 --> 00:19:36,840 Speaker 1: you have to work through the immunity statute, and it 328 00:19:36,880 --> 00:19:38,480 Speaker 1: maybe you're not going to be able to do that 329 00:19:38,560 --> 00:19:41,119 Speaker 1: in this case. That strikes me, by the way, as 330 00:19:41,160 --> 00:19:46,280 Speaker 1: a pretty reasonable and plausible way of reconciling two statutes. Obviously, 331 00:19:46,320 --> 00:19:50,600 Speaker 1: the majority was not persuaded. Justice Kavanaugh said that he 332 00:19:50,640 --> 00:19:56,000 Speaker 1: thought there was enough evidence that Congress implicitly in giving 333 00:19:56,040 --> 00:19:58,600 Speaker 1: the cause of action and the Helms Burton law, it 334 00:19:58,680 --> 00:20:04,160 Speaker 1: implicitly was taking away immunity of Cuban government entities that 335 00:20:04,640 --> 00:20:09,000 Speaker 1: traffic in this property. But it's all by implication, and 336 00:20:09,440 --> 00:20:13,440 Speaker 1: I certainly thought it was a debatable issue of statutory interpretation. 337 00:20:13,880 --> 00:20:18,399 Speaker 2: Cuba's going through its worst economic and energy crisis in decades, 338 00:20:18,600 --> 00:20:23,520 Speaker 2: practically speaking, does Exxon expect to recover money here? 339 00:20:24,080 --> 00:20:26,960 Speaker 1: Well, that's a general issue in these hell of burden 340 00:20:27,000 --> 00:20:29,440 Speaker 1: at cases. You know, it's a pretty recent issue because 341 00:20:30,160 --> 00:20:33,280 Speaker 1: Congress passed that law in the nineties, But then it 342 00:20:33,320 --> 00:20:36,199 Speaker 1: also has a provision that says presidents can stop the 343 00:20:36,240 --> 00:20:39,520 Speaker 1: operation of this statute for six months at a time, 344 00:20:39,600 --> 00:20:42,240 Speaker 1: and every president had done that. So it had avoided 345 00:20:42,280 --> 00:20:45,240 Speaker 1: this question in part maybe out of the hope that 346 00:20:45,400 --> 00:20:48,360 Speaker 1: the US would develop better relations with Cuba at some point, 347 00:20:48,960 --> 00:20:51,400 Speaker 1: and if you had a bunch of judgments out there, 348 00:20:51,520 --> 00:20:53,800 Speaker 1: it might make it harder to kind of work out 349 00:20:53,840 --> 00:20:56,760 Speaker 1: a new relationship with Cuba. But Trump, in his first 350 00:20:56,840 --> 00:21:00,159 Speaker 1: term was the first president to stop the suspension of 351 00:21:00,160 --> 00:21:03,119 Speaker 1: the claims and has allowed them to go forward. So 352 00:21:03,840 --> 00:21:07,440 Speaker 1: it is the case that now there are these suits 353 00:21:07,480 --> 00:21:10,960 Speaker 1: not just against Cuban governmentent these but other private companies 354 00:21:11,000 --> 00:21:15,320 Speaker 1: as well, and the private companies presumably if they're found liable, 355 00:21:15,359 --> 00:21:18,159 Speaker 1: they can pay those judgments. But you know, it's a 356 00:21:18,160 --> 00:21:22,360 Speaker 1: big question about whether and how this poor Cuban government 357 00:21:22,880 --> 00:21:26,040 Speaker 1: is going to satisfy judgments that relate to the government, 358 00:21:26,720 --> 00:21:30,480 Speaker 1: and it might complicate, you know, any effort to kind 359 00:21:30,520 --> 00:21:34,080 Speaker 1: of have more normal relationships with Cuba, if that becomes 360 00:21:34,119 --> 00:21:37,040 Speaker 1: an option going forward. That concern is a reason that 361 00:21:37,320 --> 00:21:41,199 Speaker 1: before Trump, at least presidents were concerned about some of 362 00:21:41,240 --> 00:21:46,479 Speaker 1: this private litigation that it might complicate a normalization effort 363 00:21:46,560 --> 00:21:50,040 Speaker 1: if that became possible with Cuba. And I think that's 364 00:21:50,080 --> 00:21:54,960 Speaker 1: probably true. And generally the executive has just disfavored private 365 00:21:55,080 --> 00:21:58,600 Speaker 1: foreign affairs kinds of lawsuits like this because it makes 366 00:21:58,800 --> 00:22:02,399 Speaker 1: a diplomacy sometimes more challenging. But Trump, you know, has 367 00:22:02,440 --> 00:22:06,199 Speaker 1: a different perspective on that. And I presume if there 368 00:22:06,240 --> 00:22:10,160 Speaker 1: are judgments out there against Cuban government entities, they would 369 00:22:10,200 --> 00:22:13,800 Speaker 1: have to be addressed at some level in some kind 370 00:22:13,840 --> 00:22:16,399 Speaker 1: of a settlement if the US, you know, tried to 371 00:22:16,400 --> 00:22:18,240 Speaker 1: have a new relationship with Cuban. 372 00:22:18,440 --> 00:22:21,240 Speaker 2: So finally, I mean, do you think that this will open, 373 00:22:21,880 --> 00:22:25,360 Speaker 2: you know, the floodgates to more suits against Cuba. 374 00:22:25,880 --> 00:22:28,360 Speaker 1: I'm not sure this case by itself will do that. 375 00:22:28,760 --> 00:22:31,879 Speaker 1: You know, Trump, by authorizing the use of the statute 376 00:22:32,160 --> 00:22:35,600 Speaker 1: has sort of opened up not necessarily floodgates, but a 377 00:22:35,680 --> 00:22:38,199 Speaker 1: number of cases against and by the way, not just 378 00:22:38,320 --> 00:22:41,480 Speaker 1: Cuban government entities. That's the kind of unusual part of 379 00:22:41,520 --> 00:22:44,040 Speaker 1: this case, and the court therefore had to do with 380 00:22:44,080 --> 00:22:48,040 Speaker 1: the immunity question. The broader element of the Hell's Burden 381 00:22:48,080 --> 00:22:51,439 Speaker 1: Act is just being able to sue any private actor 382 00:22:51,560 --> 00:22:56,600 Speaker 1: that happens to so called traffic in property originally confiscated 383 00:22:56,640 --> 00:23:00,359 Speaker 1: by Cuba. That basically means you could potentially to a 384 00:23:00,400 --> 00:23:04,239 Speaker 1: lot of companies that do business with Cuba. So, you know, 385 00:23:04,320 --> 00:23:08,399 Speaker 1: European and other countries have expressed concerns about this Hells 386 00:23:08,400 --> 00:23:11,800 Speaker 1: Burtnek because it really looks like an effort by the 387 00:23:11,920 --> 00:23:16,000 Speaker 1: United States to force a boycott on the other countries 388 00:23:16,040 --> 00:23:19,800 Speaker 1: and their companies, and that is happening. There are a 389 00:23:19,880 --> 00:23:24,080 Speaker 1: number of cases pending against these other private actors relating 390 00:23:24,119 --> 00:23:26,960 Speaker 1: to Cuba, and so I think it won't be this 391 00:23:27,040 --> 00:23:30,080 Speaker 1: decision per se, although this might open up somewhat more 392 00:23:30,119 --> 00:23:31,480 Speaker 1: litigation than we had had before. 393 00:23:31,960 --> 00:23:35,320 Speaker 2: Thanks so much, Kurt for a very interesting conversation. That's 394 00:23:35,359 --> 00:23:39,479 Speaker 2: Professor Kurtis Bradley of the University of Chicago Law School. 395 00:23:39,800 --> 00:23:44,920 Speaker 2: I'm June Grosso, and you're listening to Bloomberg. Acting Attorney 396 00:23:44,960 --> 00:23:48,399 Speaker 2: General Todd Blanche is facing a complaint filed by a 397 00:23:48,440 --> 00:23:51,840 Speaker 2: group of former federal and state judges with the New 398 00:23:51,920 --> 00:23:56,240 Speaker 2: York State Bar asking for an investigation into his conduct 399 00:23:56,359 --> 00:23:59,959 Speaker 2: in three areas, the orchestration of the creation of the 400 00:24:00,160 --> 00:24:04,240 Speaker 2: one point eight billion dollar so called Anti Weaponization Fund, 401 00:24:04,840 --> 00:24:10,320 Speaker 2: bringing controversial indictments against President Trump's political enemies like former 402 00:24:10,480 --> 00:24:15,320 Speaker 2: FBI Director James Comy, and the flawed disclosure of documents 403 00:24:15,359 --> 00:24:19,680 Speaker 2: in response to the Epstein Files Transparency Act. Whether action 404 00:24:19,920 --> 00:24:23,359 Speaker 2: is taken on this complaint or not, there's no doubt 405 00:24:23,400 --> 00:24:25,720 Speaker 2: that these are just some of the issues that will 406 00:24:25,720 --> 00:24:30,880 Speaker 2: be raised by Democratic senators at Blanche's July confirmation hearings 407 00:24:31,119 --> 00:24:34,359 Speaker 2: to be the Attorney General. Joining me is Carl Tobias, 408 00:24:34,400 --> 00:24:38,520 Speaker 2: a professor at the University of Richmond Law School. Todd Blanche, 409 00:24:39,000 --> 00:24:43,679 Speaker 2: Trump's personal attorney, has been nominated by Trump to be 410 00:24:43,920 --> 00:24:46,960 Speaker 2: the Attorney General of the United States, and there are 411 00:24:46,960 --> 00:24:49,240 Speaker 2: going to be a lot of questions about how he's 412 00:24:49,320 --> 00:24:54,199 Speaker 2: performed as acting Attorney General. The one point eight billion 413 00:24:54,280 --> 00:24:59,640 Speaker 2: dollar anti weaponization fund has been criticized by both Democrats 414 00:24:59,720 --> 00:25:04,719 Speaker 2: and Republicans, and though he testified to Congress that the 415 00:25:04,720 --> 00:25:08,400 Speaker 2: fund was not going forward, he refused to give a 416 00:25:08,440 --> 00:25:13,040 Speaker 2: federal judge a sworn statement to that effect. I mean, 417 00:25:13,200 --> 00:25:15,919 Speaker 2: do you think that this is enough to cause a 418 00:25:16,040 --> 00:25:17,800 Speaker 2: problem with his nomination? 419 00:25:18,359 --> 00:25:24,040 Speaker 3: Potentially? It is because I think Judge Brinkhama specifically asked 420 00:25:24,280 --> 00:25:32,560 Speaker 3: for that verification in writing, partly because the administration hasn't 421 00:25:32,600 --> 00:25:37,400 Speaker 3: been very forthcoming and President Trump, for example, is sent 422 00:25:37,440 --> 00:25:40,879 Speaker 3: on a number of occasions he thinks the anti recognization 423 00:25:41,240 --> 00:25:46,240 Speaker 3: fund is a great idea. So it's not, as Blanche said, 424 00:25:46,600 --> 00:25:49,920 Speaker 3: as dead as he said it is, I think in 425 00:25:50,320 --> 00:25:55,800 Speaker 3: Judge Brinkhma's mind and many Americans, and so she has 426 00:25:55,880 --> 00:25:59,080 Speaker 3: asked for that. Though there was pushback in the response 427 00:25:59,119 --> 00:26:02,400 Speaker 3: from the Department of Justice that was due on Friday, 428 00:26:03,359 --> 00:26:07,520 Speaker 3: and the Department of Justice basically said, we've done all 429 00:26:07,560 --> 00:26:11,520 Speaker 3: we can do, We're not going to do anymore. So 430 00:26:11,800 --> 00:26:13,879 Speaker 3: I think what she's going to do is go forward 431 00:26:14,520 --> 00:26:19,920 Speaker 3: and enter some kind of more permanent injunction. And so 432 00:26:20,800 --> 00:26:22,159 Speaker 3: then I assume they'll appeal. 433 00:26:22,240 --> 00:26:24,560 Speaker 2: That is it unheard of for a judge to wants 434 00:26:24,640 --> 00:26:28,000 Speaker 2: someone in the cabinet in this case, the acting Attorney 435 00:26:28,160 --> 00:26:33,480 Speaker 2: General and the Treasury Secretary to submit a sworn statement. 436 00:26:33,880 --> 00:26:36,280 Speaker 3: Well, it depends on who you talk to. But I 437 00:26:36,320 --> 00:26:41,119 Speaker 3: think there's a problem with many people in the president 438 00:26:41,160 --> 00:26:45,880 Speaker 3: administration not doing what they say they're going to do, 439 00:26:46,359 --> 00:26:49,000 Speaker 3: and so that makes it very difficult for federal judges 440 00:26:49,560 --> 00:26:54,680 Speaker 3: who are trying to decide cases and make sure that 441 00:26:54,880 --> 00:26:58,240 Speaker 3: everything proceeds as it should. And that's why I think 442 00:26:58,280 --> 00:27:01,080 Speaker 3: she asked for it in writing. There's been a lot 443 00:27:01,119 --> 00:27:06,199 Speaker 3: of discussion about how there are issues with lawyers at 444 00:27:06,240 --> 00:27:09,520 Speaker 3: the Department of Justice when they're in court and what 445 00:27:09,640 --> 00:27:12,800 Speaker 3: they're saying in court, especially in the Eastern District of 446 00:27:12,880 --> 00:27:15,040 Speaker 3: Virginia and other jurisdictions. 447 00:27:15,680 --> 00:27:20,880 Speaker 2: And another matter that I'm sure the Democratic Senators will 448 00:27:20,880 --> 00:27:24,280 Speaker 2: bring up is the Epstein files. And this has be 449 00:27:24,400 --> 00:27:28,800 Speaker 2: deviled many a person in the Trump administration. So when 450 00:27:28,840 --> 00:27:33,439 Speaker 2: Attorney General Pam Bondy testified to the committee, apparently she 451 00:27:33,560 --> 00:27:38,320 Speaker 2: put the whole onus of the Epstein release on Todd 452 00:27:38,359 --> 00:27:41,520 Speaker 2: blnch And you also have the fact that no one 453 00:27:41,680 --> 00:27:48,359 Speaker 2: has revealed why after he interviewed Gallaine Maxwell in a 454 00:27:48,520 --> 00:27:53,679 Speaker 2: Florida higher security prison, she was somehow transferred within days 455 00:27:54,040 --> 00:27:57,840 Speaker 2: to a low security prison where apparently she's getting benefits 456 00:27:57,880 --> 00:28:00,840 Speaker 2: that other prisoners don't. So he's going to be subject 457 00:28:00,880 --> 00:28:02,840 Speaker 2: to a lot of questions on that too. 458 00:28:03,480 --> 00:28:10,800 Speaker 3: Well, that's right, and the hearing. Democrats objected to having 459 00:28:11,000 --> 00:28:15,760 Speaker 3: a hearing combined with an oversight hearing. A Senator Whitehouse 460 00:28:15,760 --> 00:28:19,040 Speaker 3: from Rhode Island, who took over because Durbin was out 461 00:28:19,080 --> 00:28:23,320 Speaker 3: of town, said that very thing in the markup last week. 462 00:28:23,840 --> 00:28:27,439 Speaker 3: He wanted to know what was going to happen, and 463 00:28:27,480 --> 00:28:29,959 Speaker 3: he thought that it was a mistake to combine an 464 00:28:30,040 --> 00:28:34,320 Speaker 3: oversight hearing for the Department of Justice into the hearing 465 00:28:34,800 --> 00:28:39,480 Speaker 3: on Blanche because there wasn't sufficient time and there were 466 00:28:39,480 --> 00:28:43,680 Speaker 3: many questions Democrats wanted to ask, and Grassley was not 467 00:28:43,840 --> 00:28:47,160 Speaker 3: entirely clear about that. So we'll see, but I think 468 00:28:47,760 --> 00:28:51,840 Speaker 3: Democrats believe and white House said that we need to 469 00:28:51,920 --> 00:28:55,160 Speaker 3: have a full hearing on the nomination because it's so 470 00:28:55,240 --> 00:28:59,400 Speaker 3: important and there are other issues that are involved. Remember 471 00:29:00,640 --> 00:29:05,560 Speaker 3: the day after the weaponization fund was signed as part 472 00:29:05,600 --> 00:29:10,640 Speaker 3: of the deal, then there was a pended the tax 473 00:29:10,680 --> 00:29:16,640 Speaker 3: immunity for Trump and his family, which has been attributed 474 00:29:16,720 --> 00:29:19,920 Speaker 3: to Blanche and it was less than a page, and 475 00:29:20,120 --> 00:29:23,760 Speaker 3: so that has not gotten nearly as much attention as 476 00:29:23,760 --> 00:29:27,640 Speaker 3: the Anti Weaponization Fund, but it should be equally troubling 477 00:29:27,800 --> 00:29:31,640 Speaker 3: because most Americans think that they're not going to have 478 00:29:31,720 --> 00:29:34,000 Speaker 3: immunity from tax liability. 479 00:29:34,360 --> 00:29:36,880 Speaker 2: Yeah, and Blanche said that it was going forward and 480 00:29:36,960 --> 00:29:40,560 Speaker 2: he characterized it as something you know that happens all 481 00:29:40,640 --> 00:29:45,800 Speaker 2: the time, which is absurd. Even a single Republican on 482 00:29:46,040 --> 00:29:52,320 Speaker 2: the Judiciary Committee not voting for Blanche could sink his nomination. 483 00:29:53,240 --> 00:29:58,240 Speaker 3: Well, it's possible, and people have talked about Senator Tillis 484 00:29:58,640 --> 00:30:03,920 Speaker 3: and his strong concern about January six and the rioters 485 00:30:04,000 --> 00:30:09,080 Speaker 3: at the Capitol and how Blanche is treated that and 486 00:30:10,120 --> 00:30:14,920 Speaker 3: what one Republican can do is stop it from going 487 00:30:15,000 --> 00:30:19,000 Speaker 3: forward because if that person votes, know, then it would 488 00:30:19,000 --> 00:30:21,880 Speaker 3: be a tie and would go to the whole Senate. 489 00:30:22,240 --> 00:30:25,560 Speaker 3: It's still possible he could move forward, but it's much 490 00:30:25,600 --> 00:30:30,000 Speaker 3: more difficult to do in that situation. The other senator 491 00:30:30,040 --> 00:30:33,600 Speaker 3: people are talking about is Senator Cornyn, who now will 492 00:30:33,680 --> 00:30:38,960 Speaker 3: be retiring after losing to Paxton in the primary, and 493 00:30:39,160 --> 00:30:43,560 Speaker 3: he has raised questions for Blanche as well. Does he 494 00:30:43,760 --> 00:30:48,480 Speaker 3: understand the difference in being the personal lawyer for the 495 00:30:48,520 --> 00:30:52,760 Speaker 3: president and being Attorney general for the country. And that's 496 00:30:52,800 --> 00:30:54,960 Speaker 3: a telling commentary. 497 00:30:55,520 --> 00:30:58,800 Speaker 2: Okay, So let's turn to judges. Is time running out 498 00:30:58,840 --> 00:31:02,760 Speaker 2: for the Senate to confirm judges before the midterms? 499 00:31:03,200 --> 00:31:08,000 Speaker 3: Well, very soon it will run out, you're correct, and 500 00:31:08,720 --> 00:31:11,760 Speaker 3: don't forget. They'll go for July fourth and come back 501 00:31:11,760 --> 00:31:15,800 Speaker 3: on the thirteenth of July. They'll go for August summer 502 00:31:15,920 --> 00:31:20,320 Speaker 3: break and take most of that month in summer September, 503 00:31:20,760 --> 00:31:23,600 Speaker 3: and then pretty soon when they come back in September, 504 00:31:23,640 --> 00:31:26,680 Speaker 3: they'll have a couple of weeks and then they'll go campaign. 505 00:31:27,360 --> 00:31:30,360 Speaker 3: So there isn't a whole lot of time. The White 506 00:31:30,400 --> 00:31:33,320 Speaker 3: House is relatively caught up, except that there are a 507 00:31:33,400 --> 00:31:36,560 Speaker 3: number of vacancies where they have no nominees. For example, 508 00:31:36,680 --> 00:31:40,120 Speaker 3: the fith Circuit vacancy, which we just learned about. Judge 509 00:31:40,160 --> 00:31:44,800 Speaker 3: Engelhart of Louisiana said he would take senior status and 510 00:31:44,960 --> 00:31:48,640 Speaker 3: so that one could be very difficult to fill in 511 00:31:48,680 --> 00:31:51,920 Speaker 3: that short period of time. So I don't know that 512 00:31:51,920 --> 00:31:52,920 Speaker 3: that's going to happen. 513 00:31:53,200 --> 00:31:56,240 Speaker 2: So some of the front runners for that seat Louisiana 514 00:31:56,320 --> 00:32:02,560 Speaker 2: Solicitor General Jay Benjamin Aguina, who clerk for Justice Alito 515 00:32:02,800 --> 00:32:05,640 Speaker 2: and has argued four cases before the Supreme Court. 516 00:32:06,080 --> 00:32:09,600 Speaker 3: Yes, and he's a solicitor general there again clerk for 517 00:32:09,920 --> 00:32:15,960 Speaker 3: Judge Alito. The other people being considered Anna Saint John, 518 00:32:16,640 --> 00:32:21,240 Speaker 3: who was just confirmed for the Eastern District Louisiana this year, 519 00:32:21,680 --> 00:32:24,920 Speaker 3: And of course the person who's advising the White House 520 00:32:25,000 --> 00:32:29,640 Speaker 3: on this is the Senior Senator Kennedy from Louisiana. He 521 00:32:29,720 --> 00:32:34,840 Speaker 3: has outsized influence, and of course Center Cassidy is prominent 522 00:32:34,920 --> 00:32:39,400 Speaker 3: as well, But Kennedy is the lynchpin on this one, 523 00:32:39,440 --> 00:32:41,680 Speaker 3: and I think the White House is deferring somewhat to 524 00:32:41,800 --> 00:32:47,240 Speaker 3: his judgment there. It would be very difficult though, for 525 00:32:47,760 --> 00:32:51,720 Speaker 3: Judge Saint John, who's just started taking cases as a 526 00:32:51,760 --> 00:32:57,120 Speaker 3: district judge, to then be elevated to the Circuit. It 527 00:32:57,200 --> 00:32:59,600 Speaker 3: seems to me then you'd have to fill behind that 528 00:33:00,120 --> 00:33:03,240 Speaker 3: in that vacancy, and that would take some time. So Kennedy, 529 00:33:03,440 --> 00:33:07,120 Speaker 3: I think, has to figure that out and make the recommendation. 530 00:33:07,200 --> 00:33:09,520 Speaker 3: I think the White House will defer to him, and 531 00:33:09,880 --> 00:33:13,000 Speaker 3: he's worked well with the White House with other appointees. 532 00:33:13,040 --> 00:33:16,720 Speaker 3: He also was instrumental I think even in during Biden's 533 00:33:16,720 --> 00:33:19,760 Speaker 3: time in bringing people forward for the district bench, and 534 00:33:20,240 --> 00:33:23,520 Speaker 3: that might be a viable compromise because some of them 535 00:33:23,560 --> 00:33:25,720 Speaker 3: have already served two or three years on the district 536 00:33:25,720 --> 00:33:30,600 Speaker 3: bench and have records that could be consulted, and they 537 00:33:30,640 --> 00:33:34,520 Speaker 3: went relatively easily through the Senate at the time they 538 00:33:34,520 --> 00:33:35,200 Speaker 3: were confirmed. 539 00:33:35,400 --> 00:33:38,480 Speaker 2: He backed Saint John for that judge ship, so I 540 00:33:38,480 --> 00:33:40,959 Speaker 2: don't know if that will play into it, but he 541 00:33:41,000 --> 00:33:42,400 Speaker 2: was a big supporter of hers. 542 00:33:42,440 --> 00:33:47,320 Speaker 3: So yes, he said very glowing things about her abilities. 543 00:33:47,720 --> 00:33:50,640 Speaker 3: And in a way, she's more suited to the appellate 544 00:33:50,720 --> 00:33:53,120 Speaker 3: bench because that's the kind of work she did. She 545 00:33:53,520 --> 00:33:56,400 Speaker 3: was not, I think, a litigator in the district courts, 546 00:33:56,800 --> 00:34:01,480 Speaker 3: but rather filing appeals and arguing those appeals in the 547 00:34:01,480 --> 00:34:06,880 Speaker 3: app's court. On the other hand, Naga has had significant 548 00:34:06,880 --> 00:34:10,040 Speaker 3: experience in the appeals courts and his clerking make him 549 00:34:10,160 --> 00:34:14,239 Speaker 3: an important candidate, and he's done some difficult cases in 550 00:34:14,320 --> 00:34:16,360 Speaker 3: Louisiana and one some pretty big ones. 551 00:34:16,560 --> 00:34:20,040 Speaker 2: This will not tip the balance of Republican appointees to 552 00:34:20,080 --> 00:34:23,799 Speaker 2: Democratic appointees on the Fifth Circuit. Does it make a difference, 553 00:34:24,280 --> 00:34:27,839 Speaker 2: You know, a Republican appointee is replacing a Republican appointee. 554 00:34:28,239 --> 00:34:29,160 Speaker 2: Is there any difference? 555 00:34:29,719 --> 00:34:34,480 Speaker 3: Well, of course, because I think Judge Engliheart just took 556 00:34:34,520 --> 00:34:37,279 Speaker 3: senior status under the rule of eighty because he's sixty five, 557 00:34:37,680 --> 00:34:42,359 Speaker 3: and I think Anguinada is much younger than that, and 558 00:34:42,440 --> 00:34:45,640 Speaker 3: so you do get, you know, twenty or thirty years 559 00:34:45,680 --> 00:34:48,920 Speaker 3: of service, which is important. Judge Englehart had been a 560 00:34:48,920 --> 00:34:52,680 Speaker 3: district judge see for a long period and so I think, 561 00:34:52,880 --> 00:34:54,839 Speaker 3: all things being equal, they would want to do that. 562 00:34:54,920 --> 00:34:57,760 Speaker 3: But Saint John is quite young, and I think as well. 563 00:34:58,000 --> 00:35:01,440 Speaker 2: Are there any other open appellate spots. 564 00:35:02,160 --> 00:35:05,760 Speaker 3: Yes, This last week in the markup for the Second Circuit, 565 00:35:05,960 --> 00:35:09,800 Speaker 3: Matthew Schwartz, who represented the President in the hush money 566 00:35:09,840 --> 00:35:13,480 Speaker 3: case as well as the federal cases, which takes the 567 00:35:13,640 --> 00:35:17,239 Speaker 3: Chief Judge Livingston's vacancy for the second Circuit, she took 568 00:35:17,280 --> 00:35:19,600 Speaker 3: sing your status. And then in the sixth Circuit you 569 00:35:19,840 --> 00:35:24,880 Speaker 3: have Benjamin Flowers who will take the vacancy created by 570 00:35:24,920 --> 00:35:27,800 Speaker 3: the Chief Judge. And I assume they'll move those people 571 00:35:27,840 --> 00:35:31,120 Speaker 3: as soon as possible to confirmation because they're on the floor. 572 00:35:31,280 --> 00:35:34,160 Speaker 3: And also there are still two people, one of whom 573 00:35:34,200 --> 00:35:38,440 Speaker 3: has had a hearing. Judge Trainer for the eighth Circuit 574 00:35:38,640 --> 00:35:43,040 Speaker 3: will have a mark up soon, and another judge, Dan 575 00:35:43,120 --> 00:35:46,400 Speaker 3: Domenico for the tenth Circuit, hasn't had a hearing yet. 576 00:35:46,800 --> 00:35:49,719 Speaker 3: So there's still people in the pipeline who can be 577 00:35:49,760 --> 00:35:51,920 Speaker 3: confirmed this year for the Rep. Pellet bench. 578 00:35:52,000 --> 00:35:55,680 Speaker 2: We'll see how fast they can move those nominations. Thanks 579 00:35:55,680 --> 00:35:59,080 Speaker 2: so much, Carl. That's Professor Carl Tobias of the University 580 00:35:59,080 --> 00:36:01,759 Speaker 2: of Richmond Law School, and that's it for this edition 581 00:36:01,800 --> 00:36:04,440 Speaker 2: of The Bloomberg Law Show. Remember you can always get 582 00:36:04,480 --> 00:36:07,600 Speaker 2: the latest legal news on our Bloomberg Law podcasts. You 583 00:36:07,640 --> 00:36:11,719 Speaker 2: can find them on Apple Podcasts, Spotify, and at www 584 00:36:11,880 --> 00:36:16,160 Speaker 2: dot Bloomberg dot com, slash podcast Slash Law, and remember 585 00:36:16,200 --> 00:36:19,120 Speaker 2: to tune into The Bloomberg Law Show every weeknight at 586 00:36:19,160 --> 00:36:22,640 Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're 587 00:36:22,719 --> 00:36:23,960 Speaker 2: listening to Bloomberg