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

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

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

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

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Speaker 1: and on Bloomberg dot com Slash podcasts. With just one

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Speaker 1: month to go until the mid term elections, Republicans and

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Speaker 1: Democrats are looking to capitalize on Brett Kavanaugh Supreme Court confirmation.

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Speaker 1: On November six, Speaking with Fox News Sunday Yesterday, send

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Speaker 1: Up Majority leader Mitch McConnell defended his party's handling of

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Speaker 1: the nomination. We didn't attack the nominee. We didn't go

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Speaker 1: on a search and destroy mission. I agree that with

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Speaker 1: Chuck show me this has been a low point in

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Speaker 1: the Senate. I have a different view about who caused

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Speaker 1: the low point. And joining us now is Anna Edgerton

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Speaker 1: Bloomberg News Live in our Bloomberg studios in Washington, and

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Speaker 1: I keep hearing the Republicans are energized, and then I

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Speaker 1: keep hearing the Democrats are energized. Does anybody have the

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Speaker 1: edge out of this? Well, both sides are energized. The

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Speaker 1: difference is Democrats were already energized. So if you look

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Speaker 1: at enthusiasm from the Republican and Democratic base, Democrats were

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Speaker 1: already fired up. They've been fired up since twenty sixteen

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Speaker 1: when Donald Trump was elected. So the Republican base really

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Speaker 1: has more to gain in response to this really messy

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Speaker 1: confirmation fight. And looking at the mid terms and the

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Speaker 1: Senate seats in the mid terms, which senators are more

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Speaker 1: at risk because of the Kavanaugh nomination and confirmation. Well,

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Speaker 1: you have the Democratic senators in the states that Trump won,

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Speaker 1: like Heidi hide Camp who voted against kavanaughs confirmation. You

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Speaker 1: see Joe Mansion in West Virginia who evaded and voted

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Speaker 1: in favor of kavanaughs confirmation exactly for that fear. He

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Speaker 1: comes from a very conservative state that pretty much wanted

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Speaker 1: Kavanaugh confirmed. Another interesting Senate race to watch is in Tennessee,

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Speaker 1: where Phil Bretson, the Democrat, said that he would have

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Speaker 1: voted for Kavanaugh had he been in the Senate. He's

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Speaker 1: running against Republican Marsha Blackburn, who has not really managed

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Speaker 1: to create the enthusiasm among GOP voters in the gap

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Speaker 1: establishment in in the state of Tennessee. Joe Manchon did

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Speaker 1: he have everything to lose, but really nothing to gain

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Speaker 1: in West Virginia by voting the way he did well.

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Speaker 1: Joe Manon is a Democrat, but he's very popular in

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Speaker 1: West Virginia, and he was in a very strong position,

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Speaker 1: maybe even surprisingly so for a Democrat this year in

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Speaker 1: West Virginia. It was a tough situation for him. If

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Speaker 1: he voted against kavanaughs confirmation, he was going to face

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Speaker 1: a lot of backlash room conservatives in a state. But

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Speaker 1: voting for kavanaughs confirmation, he's faced some pushback from Democrats

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Speaker 1: in the state who said, listen, we want a Democrat

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Speaker 1: in the Senate to vote the way the Democrats vote.

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Speaker 1: So there really was no easy thing for him to do.

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Speaker 1: And it was interesting that he waited until after Susan Collins,

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Speaker 1: a Republican main had said that she would vote in

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Speaker 1: favor of Kavanaugh's confirmation, so we knew that he was

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Speaker 1: already going to be confirmed, and it was kind of

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Speaker 1: a little bit of a less of a consequence vote

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Speaker 1: for for Joe Manchon at least to not be the

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Speaker 1: deciding vote. What about Heidi hide Camp, what's happening with

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Speaker 1: her race now? I think she probably wanted to vote

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Speaker 1: against Kavanaugh initially, but she was kind of making noises

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Speaker 1: that she was considering voting in his favor. But these

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Speaker 1: allegations from Dr Blasi Ford made it a bit easier

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Speaker 1: for her to vote against Kavanaugh's confirmation. So one of

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Speaker 1: the outcomes that we see from the allegations that surfaced

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Speaker 1: last month is that some of the Democrats in conservative

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Speaker 1: states who would have voted for Kavanaugh's confirmation felt like

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Speaker 1: it was a little easier for them not to. There

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Speaker 1: was a Washington Post Our School poll of sixty nine

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Speaker 1: battle Ground District's release today and it showed that fifty

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Speaker 1: of those surveys said they preferred Democratic candidates compared to

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Speaker 1: who backed Republicans. That sounds to me like a sign

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Speaker 1: of potential trouble for the GOLP. Yeah. I mean, the

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Speaker 1: GP was already facing headwinds in this midterm, so the

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Speaker 1: best they could hope for from the fallout from this

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Speaker 1: kavanaff fight is that they would close some of the

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Speaker 1: gap that they were already facing. And one thing I

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Speaker 1: think you'll see from Americans is that a lot of

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Speaker 1: people might want divided government, in which case they could

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Speaker 1: vote for a Democrat for the House and a Republican

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Speaker 1: for the Senate as kind of a way to check

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Speaker 1: the President and the Trump White House and not give

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Speaker 1: Republicans full control of government as they've had for the

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Speaker 1: past two years. So, Heidi, what do you see President

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Speaker 1: Trump doing in the various locations he's going to be? Sorry, Anna,

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Speaker 1: how what do you see President Trump doing in the

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Speaker 1: locations that he's going to be campaigning in in the

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Speaker 1: next month. Well, Trump is, as we know, kind of

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Speaker 1: a no holds barred kind of guy. So I think

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Speaker 1: it's going to be very strategic where Republicans choose to

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Speaker 1: send the President where he chooses to go. He's only

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Speaker 1: going to go to those states or those districts where

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Speaker 1: he can really let loose and say, you know, raw, team,

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Speaker 1: we're getting all these conservative wins. We're just winning, winning,

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Speaker 1: winning fight the Democrats. And he's going to go to

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Speaker 1: states where that is well received. You'll probably see less

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Speaker 1: of President Trump and less of other White House officials

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Speaker 1: in the really close swing districts where a moderate Republican

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Speaker 1: has a better chance of winning. Listen, a half minute

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Speaker 1: left here. Hasn't this sort of welcome people up on

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Speaker 1: both sides of the aisle? Yeah? I think that's true.

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Speaker 1: Like I said before, Democrats were already energized. So poles

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Speaker 1: show that Republicans have gained in uh the gap of

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Speaker 1: the enthusiasm gap that they had compared to Democrats at

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Speaker 1: the beginning of the month. So we'll see. You know,

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Speaker 1: it all comes down to turn out like in every

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Speaker 1: other midterm race. All right, Anna, thanks so much for

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Speaker 1: being here. That's Bloomberg News congressional reporter and Edtiner. On Saturday,

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Speaker 1: the long, nasty fight finally all came to an end.

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Speaker 1: The Senate voted fifty to forty eight to confirm Brett

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Speaker 1: Kavanaugh to become an Associate Justice on the U. S.

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Speaker 1: Supreme Court. To call the process contentious would be a

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Speaker 1: gross understatement. There were charges of sexual assault, drunken partying,

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Speaker 1: a sense of entitlement, and more. As main Republican Susan

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Speaker 1: Collins officially lifted all those clouds hanging over the nomination

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Speaker 1: in an impassioned speech on the Senate floor on Friday,

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Speaker 1: she limited the divisive process. Our Supreme Court confirmation process

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Speaker 1: has been in steady decline for more than thirty years.

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Speaker 1: One can only hope that the Kavanaugh nomination is where

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Speaker 1: the process has finally had rock bottom? Well has it?

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Speaker 1: We are joined now by Neil Kinkoff, Professor at Georgia

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Speaker 1: State University School of Law. Thank you very much for

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Speaker 1: joining us. Senator Collins may have ended the questions about

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Speaker 1: his confirmation, but she she didn't end the questions about

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Speaker 1: his partisanship, his lack of judicial temperaments as seen by

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Speaker 1: some How do those things follow Kavanaugh into the courtroom? Well,

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Speaker 1: I think it'll those will follow him into the courtroom

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Speaker 1: when it comes to really contentious issues that the court decides.

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Speaker 1: So primarily I'm thinking of the various questions that are

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Speaker 1: inevitable to arise out of the Mueller investigation. UM, it's

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Speaker 1: hard to imagine how he could look credible if he

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Speaker 1: votes UM in a way that favors the president. Neil,

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Speaker 1: let's talk to just a little bit about the justices.

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Speaker 1: And the justices are coming behind him, and they're saying

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Speaker 1: all the right things. But we know that former Justice

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Speaker 1: John Paul Stevens was not of the same mind. He

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Speaker 1: said that he was not fit to sir of on

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Speaker 1: the Supreme Court. Do you believe that some of the

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Speaker 1: justices might feel that way as well? But are just

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Speaker 1: papering it over because I have to work with this

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Speaker 1: man for the rest of their careers. Yeah, I think

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Speaker 1: that's absolutely possible. Um, they have to work with him

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Speaker 1: for the rest of their careers. They form coalitions, so

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Speaker 1: they're going to want to appeal to him. Um. And

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Speaker 1: also the the institution itself is at stake, and they

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Speaker 1: are all very deeply invested in it. So they want

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Speaker 1: to make the court look um, nonpartisan, look like a

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Speaker 1: viable um institution that we should all put our faith in.

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Speaker 1: So that's in every justice's interest. So what can they

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Speaker 1: do at this point to make it seem as if

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Speaker 1: the court is not partisan? Does it depend on the

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Speaker 1: kind of cases they take? Might they take cases that

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Speaker 1: are narrower and don't relate as much to social issues

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Speaker 1: for a while? I think that's absolutely right. I think

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Speaker 1: they're going to try to bore us the death, put

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Speaker 1: us sleep, and hope that when we wake up we

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Speaker 1: will have largely forgotten about all of the late unpleasantness

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Speaker 1: we had. Obama era era Attorney General Eric Holder reacting

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Speaker 1: to the confirmation, he actually questioned the legitimacy of the court.

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Speaker 1: Could that be a serious problem down the road? Oh? Absolutely,

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Speaker 1: and it's it's not a new thing that the Court's

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Speaker 1: legitimacy would be called into question throughout history. That's happened

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Speaker 1: with some frequency. Um in the wake of Bush versus Gore,

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Speaker 1: there were some questions about it. I think certainly that

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Speaker 1: was lurking beneath all of the litigation around Obamacare, and

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Speaker 1: Chief Justice Roberts was especially concerned that the Court not

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Speaker 1: look like it was acting in a partisan fashion to

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Speaker 1: undo the signature program of a Democratic president with only

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Speaker 1: Republican votes. So Chief Justice Roberts has been very attuned

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Speaker 1: to this throughout his time on the Court, and I think,

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Speaker 1: you know, this is a this is the biggest challenge

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Speaker 1: in that respect that he's going to face. So does

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Speaker 1: he or or the rest of the Court have to

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Speaker 1: do anything actively to regain the nation's trust, so to speak.

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Speaker 1: I think he's going to have to work hard to

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Speaker 1: try to build coalitions that aren't just five to four

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Speaker 1: partisan decisions. He's going to have to try to work

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Speaker 1: across the judicial aisle um and try to bring on

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Speaker 1: Justices Briar or Kagan or Justice ginsburg Um where they

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Speaker 1: can and where they can't. I think he's going to

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Speaker 1: have to be very careful to decide cases in a

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Speaker 1: narrower way if he really wants to preserve the court's

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Speaker 1: political capital. Justice Stevens, in his remarks, talked a little

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Speaker 1: bit about or referred to recusal from certain cases that

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Speaker 1: implying that there might be certain cases that Kavanaugh would

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Speaker 1: have to recuse himself from. Now you know, and I

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Speaker 1: know what the usal processes like on the Supreme Court.

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Speaker 1: No one knows why they were accusing, and there's no

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Speaker 1: there are no guidelines for them. So how likely is

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Speaker 1: that that he'll recuse himself? Well, I think it's really unlikely. Um,

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Speaker 1: he's not in any formal position of conflict with respect

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Speaker 1: the cases coming out of the Trump administration, and in fact,

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Speaker 1: no justice has ever accused themselves just because the case

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Speaker 1: involves the president who nominated them. Um is a long

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Speaker 1: tradition of justices ruling on those cases, and many instances

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Speaker 1: ruling against the president who appointed them. Um. So I

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Speaker 1: just I don't think he's going to be recusing himself.

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Speaker 1: And I can't imagine himself any more than to Justice

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Speaker 1: Thomas recusing himself in cases that involve claims of gender

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Speaker 1: discrimination or sex harassment. Does what Nicey is as the

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Speaker 1: breakdown of the process this time around. UH tell us

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Speaker 1: anything perhaps about the timing of future confirmations. Should the

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Speaker 1: Senate steer clear of of mid term election years for example? Well,

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Speaker 1: if they do that, then that puts half of the

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Speaker 1: years off the table. Um. I don't think they will. UM.

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Speaker 1: I think when these when these um, when these vacancies

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Speaker 1: come up the Senate is the presidents are going to

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Speaker 1: nominate in the Senate will confirm. Where that might come

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Speaker 1: into play is justices themselves when they decide to retire,

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Speaker 1: trying to time it so that they avoid election years

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Speaker 1: because we saw with but as we saw with with

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Speaker 1: Merrick Garland's vacancy for example, those those can be held.

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Speaker 1: So there there are no guarantees. Neil, what do you see?

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Speaker 1: There has been talk about UH having an impeachment possible

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Speaker 1: of Judge Kevinoll if Democrats retake the House. That's been

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Speaker 1: tried in the past but has never been successful with

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Speaker 1: a Senate vote. What are the what's the likelihood that

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Speaker 1: it might be tried again? It might be tried, it's

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Speaker 1: completely feudal. The likelihood of its succeeding is zero. Right,

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Speaker 1: you needed to did remove himself from the Court after

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Speaker 1: a talk of impeachment well and also after his nomination

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Speaker 1: to be Chief Justice had been rejected. Right, so it

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Speaker 1: was pretty clear that his continuing on the Court was

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Speaker 1: not tenable. And in that case, what was involved, we're

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Speaker 1: real credible allegations of financial and other sorts of improprieties. Um,

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Speaker 1: Judge Kavanaugh is not accepting that he's done anything wrong,

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Speaker 1: and so I I just can't imagine that the parallel

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Speaker 1: applying to him. It is going to be very interesting

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Speaker 1: watching this all play out. Our thanks to Neil Kinkoff,

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Speaker 1: professor at Georgia State University School of Law. President Trump

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Speaker 1: is celebrating the confirmation of Brett Kavanaugh to the Supreme Court.

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Speaker 1: Speaking at a rally in Kansas on Saturday, Trump called

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Speaker 1: Kavanaugh an outstanding man. We have a great new Supreme

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Speaker 1: Court justice, and he's gonna be there for many years.

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Speaker 1: We are very very proud of him and what he

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Speaker 1: and his family had to endure. Looking into the future,

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Speaker 1: now we have Jonathan Adler, professor at Case Western Reserve

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Speaker 1: University School of Law and director of the Center for

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Speaker 1: Business Law and Regulation, on the line with us. Now,

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Speaker 1: obviously we won't actually know this until we see Brett

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Speaker 1: Kavanaugh at work on the U. S. Supreme Court, But

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Speaker 1: how influential could he be in shaping the High Court

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Speaker 1: far into the future. Well, I think he will be influential,

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Speaker 1: at least in those areas where he has shown a

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Speaker 1: great degree of expertise. Uh. He spent twelve years on

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Speaker 1: the US Court of Appeals for the d C Circuit,

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Speaker 1: which deals with a lot of the most significant cases

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Speaker 1: involving federal regulation. And throughout his time on that court,

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Speaker 1: we've seen him of an influence on the Supreme Court

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Speaker 1: in terms of what cases the Supreme Court takes and

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Speaker 1: how the Supreme Court evaluates those sorts of issues. And

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Speaker 1: so my view is that if he had that sort

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Speaker 1: of influence on the Supreme Court before he reached reached

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Speaker 1: that court, we should expect him to be even more

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Speaker 1: influential now that he's not down the street but actually

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Speaker 1: across the conference table. Some breaking news, Google says they're

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Speaker 1: shutting down Google Plus for consumers. On this blog, Google

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Speaker 1: shutting down Google Plus for consumers. Jonathan, though he was

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Speaker 1: very influential in the cases that came to the court,

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Speaker 1: might the Court step back a little bit from taking

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Speaker 1: cases that are going to end up likely in a

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Speaker 1: five four split for a while in order to try

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Speaker 1: to repair the damage that's been done to its image. Well,

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Speaker 1: I think certainly the Chief Justice, as we know, like

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Speaker 1: to keep the Court out of high profile political disputes

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Speaker 1: when he can. I think also, whenever you have a

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Speaker 1: new justice, it takes some time before the justices get

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Speaker 1: a good sense of how the new justice is going

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Speaker 1: to evaluate cases. And I think that it always tends

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Speaker 1: to make the Court a little more reluctant to take

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Speaker 1: new cases. And I think the political fight over Kavano's

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Speaker 1: nomination and the wounds that it created will only magnify

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Speaker 1: that normal tendency to move a little slowly when you

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Speaker 1: have changes in the courts personnel. We were speaking earlier

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Speaker 1: in the program about President Obama's Attorney General, Eric Holder,

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Speaker 1: questioning the legitimacy of the court given all that's happened

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Speaker 1: leading up to this, Does the Court need to tread

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Speaker 1: lightly to regain the country's trust. Well, I think if

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Speaker 1: the Court just sticks to what it normally does, that

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Speaker 1: over time, I mean, people will will realize that the

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Speaker 1: Court is going to continue to decide the sorts of

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Speaker 1: cases that has always decided. Most of what the Court

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Speaker 1: does is not the sort of thing that makes the

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Speaker 1: front page of the New York Times. Most of what

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Speaker 1: it does is provide clarity and consistency to various aspects

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Speaker 1: of federal law, about rules that that relate to the

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Speaker 1: regulation of business, the handling of various types of litigation,

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Speaker 1: and so on, and uh that that sort of work

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Speaker 1: is going to continue, and I think will will reassure

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Speaker 1: folks at the Court is still very much the type

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Speaker 1: of court that we've we've come to down. Clarence Thomas

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Speaker 1: said in his memoirs that he used to wear a

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Speaker 1: bulletproof vest and those days are behind him. But Brett Kavanaugh,

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Speaker 1: in his his confirmation was even more contentious, and he

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Speaker 1: went outside the typical role of the Supreme Court nominee

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Speaker 1: in several ways with the Fox TV interview, the Wall

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Speaker 1: Street Journal editorial. So might it be more difficult for

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Speaker 1: him to overcome any preconceptions the public has. Well, it's

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Speaker 1: certainly understandable that that some portion of the public is

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Speaker 1: going to be skeptical of Justice Kavanaugh for some time,

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Speaker 1: and he certainly should be aware of that. In terms

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Speaker 1: of thinking about public appearances and the like, what sorts

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Speaker 1: of speeches he gives. I think it would make sense

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Speaker 1: for him to be aware that that, at least for

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Speaker 1: a time, he's going to remain a devisive figure. I

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Speaker 1: would think and certainly hope that he at some point

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Speaker 1: in the near future takes an opportunity to acknowledge and

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Speaker 1: reflect on the nomination process and acknowledge his own part,

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Speaker 1: particularly at that one hearing in in feeding the rancor,

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Speaker 1: and the partisanship of this process. Can you give this

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Speaker 1: a little color on what it's likely to be like

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Speaker 1: the first time that Kavanaugh takes his place in the

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Speaker 1: Supreme Court. Well, he'll be he he will be on

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Speaker 1: the bench tomorrow, I believe when the court uh, here's

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Speaker 1: the oral argument and and um, you know, I think

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Speaker 1: you know he will be at the end because the

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Speaker 1: justice sit in order of seniority, with the Chief in

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Speaker 1: the middle and then alternating on either side. So he

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Speaker 1: will be at a at the far end of the court. Um.

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Speaker 1: I don't think the justices are going to treat him

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Speaker 1: any differently. Um. Four of the justices in addition to

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Speaker 1: the Chief, were at his swearing in on Saturday, including

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Speaker 1: Justice Kagan and Ginsburg Um. But I do think there

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Speaker 1: will be quite a bit of attention the first time

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Speaker 1: he asks a question. I think a lot of us

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Speaker 1: are wondering whether he will be as aggressive uh at

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Speaker 1: oral argument as Justice Course, which was during his first term.

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Speaker 1: And Um coming up is going to be the Court

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Speaker 1: considering overturning the separate sovereign's doctrine. Where might his his

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Speaker 1: inclinations lie in that kind of a case. I think

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Speaker 1: that that's a particularly hard case to judge for for

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Speaker 1: a bunch of reasons, one of which is um. While

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Speaker 1: Medici Circus he dealt a lot with questions of federal regulation,

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Speaker 1: he didn't deal nearly so much with either questions of

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Speaker 1: criminal law or with the issues of federalism. Because DC

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Speaker 1: is not a state. The sort of federalism concerns that

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Speaker 1: come up, for example, in this dual sovereignty case relating

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Speaker 1: to double jeopardy didn't really emerge. So on some of

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Speaker 1: those sorts of issues, I think we really have a

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Speaker 1: hard time and can only speculate about how he might

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Speaker 1: approach them. Would you say the cases coming up on

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Speaker 1: sexual orientation and gender identity would be some of the

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Speaker 1: most closely watched just ahead. UM, well, certainly when the

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Speaker 1: when the Court starts to take some of those cases.

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Speaker 1: I think those would be very closely watched. There are

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Speaker 1: some cases relating to affirmative action relating to abortion that

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Speaker 1: are working their way up in the lower courts. Um.

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Speaker 1: There are some very important regulatory cases relating to climate

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Speaker 1: change regulation or two uh the f SECS regulation that

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Speaker 1: that also would be worth watching if they make the court.

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Speaker 1: Thanks to Jonathan Adler, Professor at Case Western Reserve of

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Speaker 1: University School of Law and director of the Center for

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Speaker 1: Business Law and Regulation. Thanks for listening to the Bloomberg

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

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Speaker 1: on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast.

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Speaker 1: I'm June Brosso. This is Bloomberg