WEBVTT - NBA Facing Video Privacy Suit, Judges & NLRB 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.200 --> 0:00:13.560 The NBA will have to face a class action video 0:00:13.680 --> 0:00:18.079 privacy lawsuit which accuses it of sharing personal data from 0:00:18.160 --> 0:00:22.560 viewers of videos on its website. The plaintiff, Michael Salazar, 0:00:23.000 --> 0:00:27.720 signed up for the NBA's online email newsletter and alleges 0:00:27.800 --> 0:00:31.520 that when he watched videos on NBA dot com, the 0:00:31.600 --> 0:00:36.000 league shared his video watching history with Meta without his permission. 0:00:36.360 --> 0:00:40.479 A federal judge dismissed his lawsuit, but the Second Circuit 0:00:40.560 --> 0:00:44.880 Court of Appeals has reinstated it. Joining me is Ira Steinberg, 0:00:44.960 --> 0:00:47.880 a partner at Greenberg Glusker, tell us about the case. 0:00:48.640 --> 0:00:52.800 Sure The plaintiffs in this case alleges that he signed 0:00:52.880 --> 0:00:57.120 up for a newsletter from the NBA, and that as 0:00:57.200 --> 0:00:59.360 part of signing up for this newsletter, he gave the 0:00:59.480 --> 0:01:05.280 NBA's information, and that the NBA's website has video content 0:01:05.400 --> 0:01:07.920 on it and their newsletter has video content in it, 0:01:08.080 --> 0:01:11.240 and that by signing up for this newsletter and watching 0:01:11.280 --> 0:01:14.520 the video content, some of the information about the videos 0:01:14.520 --> 0:01:17.679 he watched were transmitted to third parties and that was 0:01:17.720 --> 0:01:21.160 a violation of a law called the Video Privacy Protection 0:01:21.319 --> 0:01:25.120 Act the VPPA, and the VPPA was passed in nineteen 0:01:25.200 --> 0:01:29.200 eighty eight after Robert Bork's video rental history was published 0:01:29.200 --> 0:01:34.480 in a newspaper article and Senator Patrick Leahy, the Democrat 0:01:34.520 --> 0:01:37.759 from Vermont, became offended by this among others, and they 0:01:37.840 --> 0:01:41.440 passed this law which makes it illegal to share personal 0:01:41.480 --> 0:01:46.800 identifying information regarding the video rentals of a renter, purchaser, 0:01:46.920 --> 0:01:49.880 or subscriber of goods or services from a company. And 0:01:50.000 --> 0:01:53.840 so the NBA case is really about whether the plaintiffs 0:01:53.880 --> 0:01:57.800 was signed up for a newsletter, was a subscriber under 0:01:57.840 --> 0:02:01.000 the VPPA, and whether the news let letter would goods 0:02:01.080 --> 0:02:04.320 or services that would trigger the VPPA. 0:02:03.920 --> 0:02:05.360 And what does the NBA say. 0:02:05.920 --> 0:02:09.120 The NBA's argument is that when he signed up for 0:02:09.160 --> 0:02:11.600 the newsletter, when Salazar signed up for the newsletter, he 0:02:11.639 --> 0:02:14.440 didn't sign up for audio visual content. He didn't pay 0:02:14.480 --> 0:02:17.120 for audio visual content. He signed up to receive a 0:02:17.120 --> 0:02:20.600 written newsletter with news and updates about the NBA and 0:02:20.639 --> 0:02:22.880 that letter. His sign up for the newsletter had nothing 0:02:22.919 --> 0:02:26.400 to do with the audio visual content he received that 0:02:26.800 --> 0:02:28.919 whatever he was a subscriber to, if he was a 0:02:28.960 --> 0:02:31.800 subscriber at all, it wasn't a audio visual content. 0:02:32.000 --> 0:02:36.359 As you mentioned, the VPPA was enacted in nineteen eighty eight, 0:02:36.480 --> 0:02:40.120 before there were these kinds of websites or you know, 0:02:40.360 --> 0:02:45.000 tracking people online. The second circuit said, it's no dinosaur statute, 0:02:45.080 --> 0:02:47.800 But is it a dinosaur statute? It doesn't seem to 0:02:47.880 --> 0:02:50.040 match what's happening nowadays. 0:02:50.760 --> 0:02:54.200 This is actually fairly common in a lot of these 0:02:54.280 --> 0:02:57.000 disputes that are coming up in multiple states. I practice 0:02:57.040 --> 0:02:59.960 in California, That's what I know best. Than in California, 0:03:00.280 --> 0:03:03.240 like many other places, there is no data privacy law 0:03:03.240 --> 0:03:06.320 that you can sue a company under directly, Like for example, 0:03:06.360 --> 0:03:10.280 in California, we have the California Consumer Privacy Act, the CCPA, 0:03:10.800 --> 0:03:13.360 and it lets a consumer sue if there's a hack. 0:03:13.720 --> 0:03:15.640 But if you just think that you know, you're on 0:03:15.680 --> 0:03:18.519 a website and it's sharing your data, you can't ordinarily 0:03:18.600 --> 0:03:22.360 sue that business. And so consumers are looking for different 0:03:22.480 --> 0:03:26.040 laws to borrow from to sue under, and those laws 0:03:26.040 --> 0:03:29.320 are often older, pre internet laws. So there's a lot 0:03:29.360 --> 0:03:34.520 of lawsuits under old wire tapping laws and under the VPPA, 0:03:34.600 --> 0:03:37.120 and so it's actually pretty common. It happens in a 0:03:37.120 --> 0:03:39.680 lot of areas where courts are trying to wrestle through 0:03:40.120 --> 0:03:42.800 how do you apply a pre Internet law that wasn't 0:03:42.880 --> 0:03:46.360 built for the Internet to a data privacy claim. Courts 0:03:46.400 --> 0:03:49.120 so far have been very open to the idea that 0:03:49.280 --> 0:03:51.520 just because the law is pre Internet doesn't mean it 0:03:51.520 --> 0:03:54.640 can't include data privacy claims. But then you have a 0:03:54.640 --> 0:03:57.360 lot of cases like the sales are case, where there's 0:03:57.360 --> 0:03:59.120 a little bit of a square peg in a round 0:03:59.120 --> 0:04:02.000 hole problem, where it's hard to figure out how a 0:04:02.080 --> 0:04:04.440 law that was written, you know, in a very different 0:04:04.520 --> 0:04:07.559 context would apply to the Internet. I mean, the VPPA 0:04:07.960 --> 0:04:12.520 applies to videotape service providers, right, the NBA is obviously 0:04:12.560 --> 0:04:16.840 not literally a videotape service provider anymore if it ever was. 0:04:17.040 --> 0:04:19.839 But many courts have held that it's actually broader. It 0:04:19.880 --> 0:04:23.360 can apply to all sorts of businesses that provide audio 0:04:23.440 --> 0:04:26.800 visual content, even if it's not literally a video tape. 0:04:26.880 --> 0:04:28.719 And so that's a good example of how the courts 0:04:28.720 --> 0:04:32.000 are really wrestling through how do you apply these pre 0:04:32.000 --> 0:04:35.080 Internet statutes to modern data privacy claims. 0:04:35.279 --> 0:04:38.960 D NBH told the Appeals Court that all kinds of businesses, 0:04:39.320 --> 0:04:42.200 from news outlets to serial companies have been hit with 0:04:42.320 --> 0:04:46.960 baseless video privacy class actions by consumers who merely viewed 0:04:47.000 --> 0:04:50.920 free videos on company websites. Has there been a flood 0:04:51.080 --> 0:04:53.719 of these video privacy class actions? 0:04:55.000 --> 0:04:57.839 Absolutely, the NBA is right about that part. I guess 0:04:57.880 --> 0:05:01.719 baseless as a matter of opinion. But then MBA is 0:05:01.800 --> 0:05:05.159 correct that there has been a huge increase in data 0:05:05.200 --> 0:05:08.680 privacy litigation under the VPPA and also, as I mentioned before, 0:05:09.040 --> 0:05:12.880 under wire capping laws and similar pre Internet laws in 0:05:12.920 --> 0:05:15.000 a variety of states. They're absolutely right about that. 0:05:15.680 --> 0:05:18.800 I understand that in the past year there have been 0:05:18.800 --> 0:05:21.800 a lot of dismissals of these cases. Does the Second 0:05:21.880 --> 0:05:26.560 Circuit decision stand in contrast to other courts. 0:05:26.600 --> 0:05:30.120 Yeah, absolutely so. In California. In the Ninth Circuit, which 0:05:30.160 --> 0:05:32.680 the Federal appeals jurisdiction for most of the West Coast 0:05:32.720 --> 0:05:35.000 and the Western US, the courts have been a little 0:05:35.040 --> 0:05:39.080 bit more skeptical than the Second Circuit has about certain 0:05:39.160 --> 0:05:42.560 aspects of the salas our decisions, in particular the goods 0:05:42.560 --> 0:05:45.280 and services issue and the subscriber issues. So in the 0:05:45.400 --> 0:05:49.320 Ninth Circuit there's more cases holding that the goods and 0:05:49.480 --> 0:05:54.280 services component of the VPPA applies only to audio visual 0:05:54.360 --> 0:05:55.599 goods and services. 0:05:55.880 --> 0:05:56.080 Right. 0:05:56.160 --> 0:05:58.919 So the NBA and their arguments in the salves Our 0:05:59.040 --> 0:06:01.640 case talk about how if you had gone to a 0:06:01.720 --> 0:06:04.359 hardware store and bought a hammer and then watched a video, 0:06:04.800 --> 0:06:07.119 you would in theory be subject to the VPPA because 0:06:07.120 --> 0:06:09.320 you bought a good and then you watched a video 0:06:09.440 --> 0:06:12.840 and that was subject to the law. And in California, 0:06:12.960 --> 0:06:16.640 that kind of a case would probably be less successful 0:06:16.680 --> 0:06:18.600 than it would be in New York in the second 0:06:18.600 --> 0:06:21.640 circuit under the salas Our decision. And then again as 0:06:21.680 --> 0:06:25.160 the salas Our decision points out, there's several different jurisdictions 0:06:25.279 --> 0:06:28.520 all trying to understand what a subscriber is under the VPPA, 0:06:29.000 --> 0:06:31.760 and they agree on some baseline points, like, for example, 0:06:31.920 --> 0:06:34.479 you don't necessarily have to pay to be a subscriber, 0:06:34.800 --> 0:06:36.880 but you have to give something of value. And where 0:06:36.880 --> 0:06:39.480 you draw that line of what counts as a subscriber, 0:06:39.520 --> 0:06:42.120 what's valuable enough to make you a subscriber as opposed 0:06:42.120 --> 0:06:44.919 to someone who just watched video for free. We're starting 0:06:44.960 --> 0:06:48.320 to see variation among the judicial district It reminds me 0:06:48.360 --> 0:06:52.040 a lot of the Americans with Disabilities Act litigation for websites, 0:06:52.240 --> 0:06:54.080 where there was a big wave of that it's receiving 0:06:54.080 --> 0:06:55.680 a little bit, but there's still a fair amount of it. 0:06:55.800 --> 0:06:58.440 Where New York and the Second Circuit were initially very 0:06:58.480 --> 0:07:01.240 open to those claims. They said that, you know, an 0:07:01.240 --> 0:07:05.560 Internet based business with no physical location is absolutely subject 0:07:05.600 --> 0:07:08.200 to Title three of the ADA, and that opened up 0:07:08.200 --> 0:07:12.520 a flood of ADA litigation against websites, and the Ninth Circuit, 0:07:12.600 --> 0:07:15.120 the Western US was a little more skeptical of those 0:07:15.160 --> 0:07:18.600 claims and tended to require a nexus between the website 0:07:18.640 --> 0:07:21.320 and a physical place of public location and did not 0:07:21.400 --> 0:07:25.240 open EIGHTYA claims to purely internet businesses. And so I'm 0:07:25.280 --> 0:07:27.320 seeing a little bit of a parallel where the Second 0:07:27.320 --> 0:07:31.679 Circuit is opening the doors more widely to consumer cases 0:07:31.760 --> 0:07:34.320 than in other judicial districts, including the Ninth Circuit. 0:07:34.600 --> 0:07:38.680 Tell me what exactly you think this decision stands for. 0:07:39.440 --> 0:07:42.440 I think it stands for least in the Second Circuit, 0:07:43.200 --> 0:07:46.520 it's going to be fairly easy for a consumer to 0:07:46.800 --> 0:07:50.920 come under the VPPA, and the litigated issue in a 0:07:50.920 --> 0:07:54.880 lot of these cases is going to shift from whether 0:07:54.920 --> 0:07:58.360 the consumer is even subject to the law to whether 0:07:58.400 --> 0:08:02.320 the website is improperly shared aring personal identifying information. Now, 0:08:02.360 --> 0:08:04.400 as a practical matter, and what that means is it's 0:08:04.440 --> 0:08:06.440 going to be a lot harder for a business to 0:08:06.520 --> 0:08:09.760 get these cases dismissed very early on. You know, in 0:08:09.840 --> 0:08:12.440 the sala is Our case, the NBA filed a motion 0:08:12.560 --> 0:08:15.360 to dismiss, which is a very early motion to get 0:08:15.440 --> 0:08:18.600 rid of a case, and the second Circuit essentially said 0:08:18.600 --> 0:08:21.040 that motion should have been denied. And I think now 0:08:21.080 --> 0:08:22.480 it's going to be a lot harder to get rid 0:08:22.520 --> 0:08:25.679 of these cases early on because they're going to really 0:08:25.720 --> 0:08:27.800 be focused much more on the merits of the data 0:08:27.840 --> 0:08:31.080 practices of the alleged videotape service provider. 0:08:31.560 --> 0:08:34.720 What can companies do? I mean, there is possibility right 0:08:34.760 --> 0:08:35.840 of getting consent. 0:08:36.480 --> 0:08:39.640 Yeah, so compliance with the VPPA is a little bit tricky, 0:08:40.120 --> 0:08:43.320 and that's because the consent provisions in the statute require 0:08:43.360 --> 0:08:47.640 that consent be given in a standalone agreement. You can't 0:08:47.679 --> 0:08:51.720 fold your privacy disclosure and consent into your larger terms 0:08:51.720 --> 0:08:54.959 of service or privacy policy like you would in other cases. 0:08:55.000 --> 0:08:56.960 For example, when we you know, will put on a 0:08:57.080 --> 0:09:00.760 consent defense to a wire tapping case in California, oftentimes 0:09:00.760 --> 0:09:03.080 the website will have a privacy policy in terms of 0:09:03.120 --> 0:09:05.680 service and we could rely on the disclosures and the 0:09:05.720 --> 0:09:08.920 consents in those larger documents. You can't do that for 0:09:09.000 --> 0:09:12.640 the VPPA, so the consent process is a little bit 0:09:12.679 --> 0:09:16.079 more tricky under that law. The first layer of defense 0:09:16.160 --> 0:09:18.720 with these types of consumer claims to me is always 0:09:18.920 --> 0:09:22.200 your dispute resolution policy, because it's going to be harder 0:09:22.240 --> 0:09:24.760 and harder to stop people from filing these claims and 0:09:24.800 --> 0:09:27.319 getting them dismissed early on. So you want to make 0:09:27.360 --> 0:09:30.760 sure that essentially the forum that you're litigating in the 0:09:30.880 --> 0:09:33.960 architecture of the dispute is set up so that it's 0:09:34.040 --> 0:09:37.280 manageable and it's fair from the perspective of both parties, 0:09:37.280 --> 0:09:39.680 and that it's enforceable. We've seen a lot of companies 0:09:39.720 --> 0:09:42.800 fall into what's called the arbitration trap in other consumer 0:09:42.880 --> 0:09:46.320 data privacy claims, where they have an arbitration provision and 0:09:46.360 --> 0:09:49.480 they have a class action waiver, and so instead of 0:09:49.480 --> 0:09:51.960 filing a class action, you'll see ten thousand or a 0:09:51.960 --> 0:09:55.120 few thousand or a few hundred arbitration claimants all come 0:09:55.160 --> 0:09:58.800 together and then file these mass claims. And since arbitration 0:09:58.920 --> 0:10:01.000 fees are the filing fees, they're usually assessed on the 0:10:01.040 --> 0:10:04.480 business on a per claimant basis, it could massively increase 0:10:04.520 --> 0:10:07.280 the cost of defense, and that's been very problematic for 0:10:07.559 --> 0:10:10.679 some large companies defending these data privacy claims. So it's 0:10:10.720 --> 0:10:14.760 really important to get your dispute resolution policy really squared away, 0:10:14.840 --> 0:10:18.120 top notch, organized and well thought through. Beyond that, you're 0:10:18.200 --> 0:10:20.800 right if your company is at high risk of a 0:10:20.920 --> 0:10:23.640 VPPA claim because you are very much in the business 0:10:23.640 --> 0:10:26.679 of audio visual content and you're sharing data and all 0:10:26.720 --> 0:10:29.600 those kinds of things, you might want to consider whether 0:10:29.640 --> 0:10:32.719 you can incorporate into your website or your newsletter or 0:10:32.760 --> 0:10:35.800 whatever you're doing, some kind of standalone consent that would 0:10:35.800 --> 0:10:39.679 comply with the VPPA. Otherwise, if you can't get that 0:10:39.800 --> 0:10:42.680 consent in, you just need to think about what data 0:10:42.679 --> 0:10:46.720 you're sharing and whether or not you can adjust the 0:10:46.800 --> 0:10:49.440 process or the way you engage with your consumers to 0:10:49.520 --> 0:10:54.480 make sure that they are not technically subscribers into the VPPA. Unfortunately, 0:10:54.480 --> 0:10:57.600 there's not a very easy answer for the VPPA, at 0:10:57.640 --> 0:11:01.560 least under the second circuit decision still developing, So there's 0:11:01.600 --> 0:11:03.400 not a lot of bright lines where we could say, 0:11:03.400 --> 0:11:05.720 if you do this, you'll be safe. There's only things 0:11:05.720 --> 0:11:08.080 we could do to turn the dials to reduce risk 0:11:08.440 --> 0:11:09.000 where we can. 0:11:09.640 --> 0:11:12.720 And do you think that this decision will lead to 0:11:12.840 --> 0:11:15.280 more lawsuits under the VPPA? 0:11:15.880 --> 0:11:17.880 Oh, I know it will absolutely. 0:11:18.440 --> 0:11:22.240 I don't usually get such definitive answers. So what are 0:11:22.240 --> 0:11:24.520 the damages here? If the NBA. 0:11:24.320 --> 0:11:28.199 Loses, it's twenty five hundred dollars per person. It's technically 0:11:28.280 --> 0:11:31.960 actual damages, but not less than twenty five hundred. And 0:11:32.000 --> 0:11:34.760 in reality, most planetfs aren't going to have actual damages, 0:11:34.800 --> 0:11:37.520 so effectively it's twenty five hundred dollars per person. But 0:11:37.600 --> 0:11:40.040 one of the key issues is attorney sees right, the 0:11:40.120 --> 0:11:44.040 VPPA allows damages. That's twenty five hundred in all likelihood 0:11:44.520 --> 0:11:47.960 punitive damages, which I think would be pretty uncommon in 0:11:47.960 --> 0:11:51.800 the case like this. But three is attorney speed, and 0:11:51.840 --> 0:11:54.559 that could be substantial. If you have a reputable firm 0:11:54.640 --> 0:11:57.520 litigating on behalf of a class, that attorney's spies claim 0:11:57.559 --> 0:11:58.520 could be significant. 0:11:58.840 --> 0:12:01.199 And what kind of advice would you give companies who 0:12:01.360 --> 0:12:03.760 might fit under the VPPA. 0:12:04.480 --> 0:12:07.760 The Thalasar case highlights the fact that there is a 0:12:07.920 --> 0:12:11.680 large increase in data privacy litigation not just under the VPPA, 0:12:12.080 --> 0:12:15.520 but under an assortment of state and federal laws and 0:12:15.880 --> 0:12:19.079 It's really important to get your privacy disclosures right, get 0:12:19.120 --> 0:12:22.280 your terms of service correct, at your dispute resolution policies 0:12:22.679 --> 0:12:26.400 shaped up, and to begin to prepare your business for 0:12:26.480 --> 0:12:29.440 what could be one of these claims. You know, if 0:12:29.440 --> 0:12:32.080 you haven't talked to your in house counsel or your 0:12:32.120 --> 0:12:34.840 outside council about what you can do to mitigate your risk. 0:12:34.960 --> 0:12:37.280 I think that you know now is the time, because 0:12:37.800 --> 0:12:39.720 this litigation is only accelerating. 0:12:39.960 --> 0:12:41.800 It's great to have you on the show. Ira, Thanks 0:12:41.800 --> 0:12:46.760 so much. That's Ara Steinberg of Greenberg Glusker. President Joe 0:12:46.840 --> 0:12:50.439 Biden is on track to match or even surpass the 0:12:50.559 --> 0:12:54.760 number of federal judges appointed by former President Donald Trump. 0:12:55.080 --> 0:12:58.880 Biden has appointed two hundred and thirteen federal judges so 0:12:59.080 --> 0:13:02.800 far to Trump's total of two hundred and thirty one. 0:13:03.360 --> 0:13:06.440 But the next president is unlikely to be able to 0:13:06.480 --> 0:13:10.600 make an impact on the federal bench because the numbers 0:13:10.840 --> 0:13:14.640 just won't be there. Joining me is federal judiciary expert 0:13:14.720 --> 0:13:18.040 Carl Tobias, a professor at the University of Richmond School 0:13:18.120 --> 0:13:22.080 of Law. When Biden leaves office, he and Trump will 0:13:22.080 --> 0:13:26.120 have in just eight years appointed about half of all 0:13:26.160 --> 0:13:30.199 the eight hundred and ninety life tenured federal judges across 0:13:30.240 --> 0:13:34.280 the country. Is that an unusual amount for eight years? 0:13:35.000 --> 0:13:41.199 It is unusual. And the reason is both administrations and 0:13:41.440 --> 0:13:45.720 the majority they've had in the Senate in those years 0:13:46.040 --> 0:13:48.520 have been on the same party and of the same mind, 0:13:48.640 --> 0:13:53.080 and that is to fill the bench with people they 0:13:53.120 --> 0:13:58.319 believe will be most effective. And they've been very effective 0:13:58.640 --> 0:14:02.640 in nominating to affirming people in that situation because the 0:14:02.679 --> 0:14:07.800 majority rules in the Senate, and so that's what we see. 0:14:08.080 --> 0:14:10.959 So it shouldn't be too surprising that there aren't a 0:14:11.000 --> 0:14:13.920 lot of opportunities for the next president, whoever it is 0:14:14.200 --> 0:14:15.160 in terms of numbers. 0:14:15.760 --> 0:14:20.040 And also there aren't opportunities because the judges taking senior 0:14:20.120 --> 0:14:25.120 status are shrinking as well. And is that because both 0:14:25.160 --> 0:14:27.560 these presidents appointed younger judges. 0:14:27.960 --> 0:14:30.720 Yes, I think that's clear. I mean, did data show 0:14:30.800 --> 0:14:34.600 that they intentionally did that? And that goes back I 0:14:34.640 --> 0:14:37.880 think at least to the time of George W. Bush 0:14:37.920 --> 0:14:41.920 and maybe even earlier, but it has become much more 0:14:41.960 --> 0:14:45.760 of a focus an emphasis, and sometimes the senators and 0:14:45.920 --> 0:14:51.560 the party opposing the president do point out that people 0:14:51.600 --> 0:14:54.360 are quite young and don't have a lot of experience 0:14:54.800 --> 0:14:59.800 and so they criticize the nominees for that, but when 0:14:59.880 --> 0:15:05.280 we Jordy votes, they often then confirmed those types of judges. 0:15:05.480 --> 0:15:09.000 And so that's what you have I think, and I 0:15:09.080 --> 0:15:13.200 do think to some extent, we're seeing a number of judges, 0:15:13.840 --> 0:15:18.680 especially Indian palate courts, only thinking senior status or resigning 0:15:19.120 --> 0:15:21.400 when the person in the White House is of the 0:15:21.440 --> 0:15:24.320 same party, which used to be only a Supreme court 0:15:24.440 --> 0:15:28.920 or principally a Supreme court type of tradition, and even 0:15:28.960 --> 0:15:32.960 then honored sometimes in the breach. But now it happens 0:15:33.120 --> 0:15:36.680 quite a bit. And what you saw, I think, for example, 0:15:37.080 --> 0:15:41.440 as Trump was coming in, was many Republicans assuming senior status, 0:15:41.480 --> 0:15:45.840 and then when Biden was elected, you saw a number 0:15:45.880 --> 0:15:49.440 of Democratic appointees then assuming senior status. 0:15:49.600 --> 0:15:53.360 There are sixty seven vacancies currently on the federal bench 0:15:53.800 --> 0:15:56.200 or expected to open up. How many of those could 0:15:56.240 --> 0:16:00.080 Biden possibly fill before he leaves office. 0:16:00.320 --> 0:16:05.280 Well, I think on the floor right now are twenty eight, 0:16:06.480 --> 0:16:10.840 So that would only leave forty or so vacancies working 0:16:10.880 --> 0:16:14.600 from the present figures, which is very low, especially at 0:16:14.600 --> 0:16:18.400 the pellate level. I think right now there's six vacancies 0:16:18.440 --> 0:16:22.840 and four of them and maybe five or even six 0:16:23.000 --> 0:16:27.120 could be confirmed, and that would leave virtually no vacancy 0:16:27.280 --> 0:16:30.440 in the appellate system, and that's where both parties concentrate, 0:16:30.560 --> 0:16:34.000 because appellate judges make more policy. They are the supreme 0:16:34.040 --> 0:16:36.840 courts in ninety nine percent of cases in the states 0:16:36.880 --> 0:16:40.800 within the circuit where they sit, and so everyone is 0:16:40.880 --> 0:16:44.000 focused on that. And I think at one point Trump 0:16:44.160 --> 0:16:49.640 actually had filled every single appellate vacancy, and that hadn't 0:16:49.680 --> 0:16:52.600 happened since nineteen eighty four when Reagan was president. So 0:16:52.720 --> 0:16:55.720 they focused like a laser on that. But so has Biden, 0:16:55.760 --> 0:16:58.000 and so he may end up with forty eight, forty 0:16:58.080 --> 0:17:00.800 nine to fifty points at the appellate level, which is 0:17:00.920 --> 0:17:04.639 very close to the fifty four Trump was able to confirm. 0:17:05.080 --> 0:17:09.400 So according to the American Constitution Society, which looked into 0:17:09.440 --> 0:17:12.919 how many judges might be taking senior status over the 0:17:12.920 --> 0:17:16.320 next four years, it came out to be one hundred 0:17:16.320 --> 0:17:19.720 and sixteen appointed by Republican presidents and one hundred and 0:17:19.720 --> 0:17:23.679 seventeen by Democratic presidents, which seemed awfully close to me 0:17:24.359 --> 0:17:28.320 since I thought that Democratic presidents were behind Republican presidents 0:17:28.400 --> 0:17:29.560 on appointees. 0:17:30.480 --> 0:17:34.960 Well, I think it has even doubt during Biden's time. 0:17:36.080 --> 0:17:40.360 If you think back Bush had eight years, Obama had 0:17:40.400 --> 0:17:43.960 eight years, Trump had four, Biden had four. So I'm 0:17:43.960 --> 0:17:47.479 not terribly surprised that that's where we are. But I 0:17:47.520 --> 0:17:52.119 think it's fair to say Democrats have learned from Republicans 0:17:52.160 --> 0:17:56.080 how to be more ruthless about nominations in confirmation. It 0:17:56.119 --> 0:17:59.359 depends on your perspective, but to some extent that's to 0:17:59.400 --> 0:18:01.680 be expected. I mean, I think that's the norm now, 0:18:02.119 --> 0:18:04.639 and so the majority rules in the Senate, and as 0:18:04.720 --> 0:18:06.840 long as the White House is amenable and the President 0:18:07.040 --> 0:18:09.800 is effective, that's what I think you're going to see 0:18:10.040 --> 0:18:10.720 going forward. 0:18:11.400 --> 0:18:14.000 And I've been talking about judges for so long, but 0:18:14.080 --> 0:18:16.800 yet I didn't know this fact that it was President 0:18:16.880 --> 0:18:20.119 Jimmy Carter who has the record for the most judicial 0:18:20.119 --> 0:18:23.560 appointments in a single term two hundred and sixty two. 0:18:24.000 --> 0:18:26.080 And that was at a time when we didn't know 0:18:26.119 --> 0:18:28.359 it was as important as it is now. 0:18:28.600 --> 0:18:31.960 I think that's correct. And there were fewer judges then 0:18:32.160 --> 0:18:35.159 because there were a couple of judge ship bills after that. 0:18:35.240 --> 0:18:39.159 But what's most telling is they passed the nineteen seventy 0:18:39.160 --> 0:18:42.480 eight Judge Ships Act, which created I think thirty five 0:18:42.560 --> 0:18:46.200 appellate judge ships in sixty or seventy or maybe even 0:18:46.280 --> 0:18:49.840 more district ones, and so he had an enormous opportunity 0:18:49.920 --> 0:18:53.760 there and he seed it. That explains it, even though 0:18:53.800 --> 0:18:57.600 there were other criticisms of his presidency and he wasn't 0:18:57.600 --> 0:19:01.879 re elected. But he also, as you remember, was instrumental 0:19:02.200 --> 0:19:09.399 in beginning the diversification of the courts in terms of ethnicity, gender, 0:19:09.800 --> 0:19:14.600 and experience and appointed many people of color. All the 0:19:14.960 --> 0:19:19.520 Democratic presidents since then have made diversity important, and some 0:19:19.600 --> 0:19:21.399 of the Republicans have as well. 0:19:21.920 --> 0:19:25.320 We have to factor in the fact that if the 0:19:25.359 --> 0:19:30.119 president the next president has a Senate that the opposing 0:19:30.160 --> 0:19:33.800 party has a majority in, is it going to be 0:19:33.880 --> 0:19:38.399 tougher to get judges appointed. The answer is yes, I 0:19:38.480 --> 0:19:39.960 will that answer, but I thought i'd give you a 0:19:39.960 --> 0:19:40.600 softball there. 0:19:40.960 --> 0:19:47.040 Yeah. Right. And the real telling point is twenty fifteen sixteen, 0:19:47.080 --> 0:19:52.960 after Republicans in twenty fourteen captures the majority because Mitch 0:19:53.040 --> 0:19:59.280 McConnell as majority leader, only allowed two of President Obama's 0:19:59.480 --> 0:20:02.320 nominee he's at the appellate level to be confirmed in 0:20:02.359 --> 0:20:06.960 the last two years, and not very many district nominees 0:20:07.400 --> 0:20:10.199 that's what led to Trump being able to appoint fifty 0:20:10.240 --> 0:20:14.080 four because there were so many vacancies held over by McConnell. 0:20:14.119 --> 0:20:18.359 And of course, the classic example everybody remembers is what 0:20:18.480 --> 0:20:22.880 he did with Merrick Garland and Justice Scalia's vacancy, and 0:20:22.920 --> 0:20:26.040 that's what led, I think, in part to what we 0:20:26.119 --> 0:20:29.040 see in terms of the majority on the Supreme Court now. 0:20:29.840 --> 0:20:33.440 Mike Davis, a Trump ally and founder of the Conservative 0:20:34.040 --> 0:20:38.800 Judiciary focused advocacy group Article three Project, he said the 0:20:38.840 --> 0:20:43.040 next president will finish the transformation of the judiciary one 0:20:43.040 --> 0:20:46.280 way or the other. Do you think he's right about that? 0:20:47.119 --> 0:20:51.360 Well, to some extent, But remember it's the appellate judges 0:20:51.400 --> 0:20:56.040 who really make the policy, and they're just not going 0:20:56.119 --> 0:21:00.119 to be many vacancies there. So some of what he 0:21:00.200 --> 0:21:03.520 is saying is hyperbolic, but there is a lot at stake. 0:21:03.760 --> 0:21:06.560 I just don't think the opportunity is there in a 0:21:06.600 --> 0:21:11.200 way that it has been historically because of the small numbers, 0:21:11.359 --> 0:21:15.520 and as we've talked about, the unlikelihood of very many 0:21:15.600 --> 0:21:19.160 turnovers in the next four years, and then the whole 0:21:19.240 --> 0:21:21.679 question of who's going to have the majority, because it 0:21:21.720 --> 0:21:24.879 may be that that's which is this time or not, 0:21:25.400 --> 0:21:27.600 but it's going to be very close no matter what. 0:21:28.040 --> 0:21:31.080 And there's every chance that even if Democrats lose the 0:21:31.119 --> 0:21:34.879 majority in this election year, they will recapture it in 0:21:34.920 --> 0:21:38.480 twenty six and so I just don't think that there's 0:21:38.520 --> 0:21:40.800 going to be much of an opportunity to do what 0:21:40.920 --> 0:21:44.280 Davis is talking about. But I've seen what he has said, 0:21:44.440 --> 0:21:46.719 and they even are critical of some of the fifty 0:21:46.760 --> 0:21:51.560 four whom Trump appointed as being not sufficiently loyal, if 0:21:51.600 --> 0:21:53.640 you will, to the former president. 0:21:54.680 --> 0:22:01.119 There's this theory that some federal judges of tryout for 0:22:01.200 --> 0:22:06.440 the Supreme Court by writing opinions that they think will 0:22:06.440 --> 0:22:09.560 get them noticed. Have you seen that happening lately. 0:22:10.160 --> 0:22:13.200 It's just hard to say, though I think it's fair 0:22:13.240 --> 0:22:15.760 to say if you look at the fifty four pallat judges, 0:22:16.320 --> 0:22:18.320 there are a number of them who seem to be 0:22:18.480 --> 0:22:21.240 trying out and a lot of people have said that 0:22:21.840 --> 0:22:27.199 for the Supreme Court. And it's a hierarchical institution, but 0:22:27.280 --> 0:22:30.119 there are not very many seats on the US Supreme Court, 0:22:30.680 --> 0:22:34.560 so we'll see. But especially in the Fifth Circuit, for example, 0:22:34.880 --> 0:22:38.760 Trump has a number of appointees, and the Eleventh Circuit 0:22:39.240 --> 0:22:43.280 and they are people who have made their mark with 0:22:43.480 --> 0:22:46.040 you know in some ways on certain cases. And even 0:22:46.080 --> 0:22:49.399 the Supreme Court has found the Fifth Circuit to be 0:22:50.040 --> 0:22:53.560 too extreme for its taste on certain issues like the 0:22:53.600 --> 0:22:56.080 abortion pill and some other cases. 0:22:56.520 --> 0:23:02.040 Yes, the Fifth Circuit often tends to push the legal envelope, 0:23:02.320 --> 0:23:05.800 so to speak. Thanks so much, Carl. That's Professor Carl 0:23:05.840 --> 0:23:09.760 Tobias of the University of Richmond Law School. Coming up 0:23:09.760 --> 0:23:13.480 next on the Bloomberg Law Show. A landmark doctrine of 0:23:13.560 --> 0:23:17.240 the NLRB is at stake in a Ninth Circuit case. 0:23:17.600 --> 0:23:22.440 I'm June Grosso and you're listening to Bloomberg. A decision 0:23:22.480 --> 0:23:26.600