Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com Slash podcasts. With just one
Speaker 1: month to go until the mid term elections, Republicans and
Speaker 1: Democrats are looking to capitalize on Brett Kavanaugh Supreme Court confirmation.
Speaker 1: On November six, Speaking with Fox News Sunday Yesterday, send
Speaker 1: Up Majority leader Mitch McConnell defended his party's handling of
Speaker 1: the nomination. We didn't attack the nominee. We didn't go
Speaker 1: on a search and destroy mission. I agree that with
Speaker 1: Chuck show me this has been a low point in
Speaker 1: the Senate. I have a different view about who caused
Speaker 1: the low point. And joining us now is Anna Edgerton
Speaker 1: Bloomberg News Live in our Bloomberg studios in Washington, and
Speaker 1: I keep hearing the Republicans are energized, and then I
Speaker 1: keep hearing the Democrats are energized. Does anybody have the
Speaker 1: edge out of this? Well, both sides are energized. The
Speaker 1: difference is Democrats were already energized. So if you look
Speaker 1: at enthusiasm from the Republican and Democratic base, Democrats were
Speaker 1: already fired up. They've been fired up since twenty sixteen
Speaker 1: when Donald Trump was elected. So the Republican base really
Speaker 1: has more to gain in response to this really messy
Speaker 1: confirmation fight. And looking at the mid terms and the
Speaker 1: Senate seats in the mid terms, which senators are more
Speaker 1: at risk because of the Kavanaugh nomination and confirmation. Well,
Speaker 1: you have the Democratic senators in the states that Trump won,
Speaker 1: like Heidi hide Camp who voted against kavanaughs confirmation. You
Speaker 1: see Joe Mansion in West Virginia who evaded and voted
Speaker 1: in favor of kavanaughs confirmation exactly for that fear. He
Speaker 1: comes from a very conservative state that pretty much wanted
Speaker 1: Kavanaugh confirmed. Another interesting Senate race to watch is in Tennessee,
Speaker 1: where Phil Bretson, the Democrat, said that he would have
Speaker 1: voted for Kavanaugh had he been in the Senate. He's
Speaker 1: running against Republican Marsha Blackburn, who has not really managed
Speaker 1: to create the enthusiasm among GOP voters in the gap
Speaker 1: establishment in in the state of Tennessee. Joe Manchon did
Speaker 1: he have everything to lose, but really nothing to gain
Speaker 1: in West Virginia by voting the way he did well.
Speaker 1: Joe Manon is a Democrat, but he's very popular in
Speaker 1: West Virginia, and he was in a very strong position,
Speaker 1: maybe even surprisingly so for a Democrat this year in
Speaker 1: West Virginia. It was a tough situation for him. If
Speaker 1: he voted against kavanaughs confirmation, he was going to face
Speaker 1: a lot of backlash room conservatives in a state. But
Speaker 1: voting for kavanaughs confirmation, he's faced some pushback from Democrats
Speaker 1: in the state who said, listen, we want a Democrat
Speaker 1: in the Senate to vote the way the Democrats vote.
Speaker 1: So there really was no easy thing for him to do.
Speaker 1: And it was interesting that he waited until after Susan Collins,
Speaker 1: a Republican main had said that she would vote in
Speaker 1: favor of Kavanaugh's confirmation, so we knew that he was
Speaker 1: already going to be confirmed, and it was kind of
Speaker 1: a little bit of a less of a consequence vote
Speaker 1: for for Joe Manchon at least to not be the
Speaker 1: deciding vote. What about Heidi hide Camp, what's happening with
Speaker 1: her race now? I think she probably wanted to vote
Speaker 1: against Kavanaugh initially, but she was kind of making noises
Speaker 1: that she was considering voting in his favor. But these
Speaker 1: allegations from Dr Blasi Ford made it a bit easier
Speaker 1: for her to vote against Kavanaugh's confirmation. So one of
Speaker 1: the outcomes that we see from the allegations that surfaced
Speaker 1: last month is that some of the Democrats in conservative
Speaker 1: states who would have voted for Kavanaugh's confirmation felt like
Speaker 1: it was a little easier for them not to. There
Speaker 1: was a Washington Post Our School poll of sixty nine
Speaker 1: battle Ground District's release today and it showed that fifty
Speaker 1: of those surveys said they preferred Democratic candidates compared to
Speaker 1: who backed Republicans. That sounds to me like a sign
Speaker 1: of potential trouble for the GOLP. Yeah. I mean, the
Speaker 1: GP was already facing headwinds in this midterm, so the
Speaker 1: best they could hope for from the fallout from this
Speaker 1: kavanaff fight is that they would close some of the
Speaker 1: gap that they were already facing. And one thing I
Speaker 1: think you'll see from Americans is that a lot of
Speaker 1: people might want divided government, in which case they could
Speaker 1: vote for a Democrat for the House and a Republican
Speaker 1: for the Senate as kind of a way to check
Speaker 1: the President and the Trump White House and not give
Speaker 1: Republicans full control of government as they've had for the
Speaker 1: past two years. So, Heidi, what do you see President
Speaker 1: Trump doing in the various locations he's going to be? Sorry, Anna,
Speaker 1: how what do you see President Trump doing in the
Speaker 1: locations that he's going to be campaigning in in the
Speaker 1: next month. Well, Trump is, as we know, kind of
Speaker 1: a no holds barred kind of guy. So I think
Speaker 1: it's going to be very strategic where Republicans choose to
Speaker 1: send the President where he chooses to go. He's only
Speaker 1: going to go to those states or those districts where
Speaker 1: he can really let loose and say, you know, raw, team,
Speaker 1: we're getting all these conservative wins. We're just winning, winning,
Speaker 1: winning fight the Democrats. And he's going to go to
Speaker 1: states where that is well received. You'll probably see less
Speaker 1: of President Trump and less of other White House officials
Speaker 1: in the really close swing districts where a moderate Republican
Speaker 1: has a better chance of winning. Listen, a half minute
Speaker 1: left here. Hasn't this sort of welcome people up on
Speaker 1: both sides of the aisle? Yeah? I think that's true.
Speaker 1: Like I said before, Democrats were already energized. So poles
Speaker 1: show that Republicans have gained in uh the gap of
Speaker 1: the enthusiasm gap that they had compared to Democrats at
Speaker 1: the beginning of the month. So we'll see. You know,
Speaker 1: it all comes down to turn out like in every
Speaker 1: other midterm race. All right, Anna, thanks so much for
Speaker 1: being here. That's Bloomberg News congressional reporter and Edtiner. On Saturday,
Speaker 1: the long, nasty fight finally all came to an end.
Speaker 1: The Senate voted fifty to forty eight to confirm Brett
Speaker 1: Kavanaugh to become an Associate Justice on the U. S.
Speaker 1: Supreme Court. To call the process contentious would be a
Speaker 1: gross understatement. There were charges of sexual assault, drunken partying,
Speaker 1: a sense of entitlement, and more. As main Republican Susan
Speaker 1: Collins officially lifted all those clouds hanging over the nomination
Speaker 1: in an impassioned speech on the Senate floor on Friday,
Speaker 1: she limited the divisive process. Our Supreme Court confirmation process
Speaker 1: has been in steady decline for more than thirty years.
Speaker 1: One can only hope that the Kavanaugh nomination is where
Speaker 1: the process has finally had rock bottom? Well has it?
Speaker 1: We are joined now by Neil Kinkoff, Professor at Georgia
Speaker 1: State University School of Law. Thank you very much for
Speaker 1: joining us. Senator Collins may have ended the questions about
Speaker 1: his confirmation, but she she didn't end the questions about
Speaker 1: his partisanship, his lack of judicial temperaments as seen by
Speaker 1: some How do those things follow Kavanaugh into the courtroom? Well,
Speaker 1: I think it'll those will follow him into the courtroom
Speaker 1: when it comes to really contentious issues that the court decides.
Speaker 1: So primarily I'm thinking of the various questions that are
Speaker 1: inevitable to arise out of the Mueller investigation. UM, it's
Speaker 1: hard to imagine how he could look credible if he
Speaker 1: votes UM in a way that favors the president. Neil,
Speaker 1: let's talk to just a little bit about the justices.
Speaker 1: And the justices are coming behind him, and they're saying
Speaker 1: all the right things. But we know that former Justice
Speaker 1: John Paul Stevens was not of the same mind. He
Speaker 1: said that he was not fit to sir of on
Speaker 1: the Supreme Court. Do you believe that some of the
Speaker 1: justices might feel that way as well? But are just
Speaker 1: papering it over because I have to work with this
Speaker 1: man for the rest of their careers. Yeah, I think
Speaker 1: that's absolutely possible. Um, they have to work with him
Speaker 1: for the rest of their careers. They form coalitions, so
Speaker 1: they're going to want to appeal to him. Um. And
Speaker 1: also the the institution itself is at stake, and they
Speaker 1: are all very deeply invested in it. So they want
Speaker 1: to make the court look um, nonpartisan, look like a
Speaker 1: viable um institution that we should all put our faith in.
Speaker 1: So that's in every justice's interest. So what can they
Speaker 1: do at this point to make it seem as if
Speaker 1: the court is not partisan? Does it depend on the
Speaker 1: kind of cases they take? Might they take cases that
Speaker 1: are narrower and don't relate as much to social issues
Speaker 1: for a while? I think that's absolutely right. I think
Speaker 1: they're going to try to bore us the death, put
Speaker 1: us sleep, and hope that when we wake up we
Speaker 1: will have largely forgotten about all of the late unpleasantness
Speaker 1: we had. Obama era era Attorney General Eric Holder reacting
Speaker 1: to the confirmation, he actually questioned the legitimacy of the court.
Speaker 1: Could that be a serious problem down the road? Oh? Absolutely,
Speaker 1: and it's it's not a new thing that the Court's
Speaker 1: legitimacy would be called into question throughout history. That's happened
Speaker 1: with some frequency. Um in the wake of Bush versus Gore,
Speaker 1: there were some questions about it. I think certainly that
Speaker 1: was lurking beneath all of the litigation around Obamacare, and
Speaker 1: Chief Justice Roberts was especially concerned that the Court not
Speaker 1: look like it was acting in a partisan fashion to
Speaker 1: undo the signature program of a Democratic president with only
Speaker 1: Republican votes. So Chief Justice Roberts has been very attuned
Speaker 1: to this throughout his time on the Court, and I think,
Speaker 1: you know, this is a this is the biggest challenge
Speaker 1: in that respect that he's going to face. So does
Speaker 1: he or or the rest of the Court have to
Speaker 1: do anything actively to regain the nation's trust, so to speak.
Speaker 1: I think he's going to have to work hard to
Speaker 1: try to build coalitions that aren't just five to four
Speaker 1: partisan decisions. He's going to have to try to work
Speaker 1: across the judicial aisle um and try to bring on
Speaker 1: Justices Briar or Kagan or Justice ginsburg Um where they
Speaker 1: can and where they can't. I think he's going to
Speaker 1: have to be very careful to decide cases in a
Speaker 1: narrower way if he really wants to preserve the court's
Speaker 1: political capital. Justice Stevens, in his remarks, talked a little
Speaker 1: bit about or referred to recusal from certain cases that
Speaker 1: implying that there might be certain cases that Kavanaugh would
Speaker 1: have to recuse himself from. Now you know, and I
Speaker 1: know what the usal processes like on the Supreme Court.
Speaker 1: No one knows why they were accusing, and there's no
Speaker 1: there are no guidelines for them. So how likely is
Speaker 1: that that he'll recuse himself? Well, I think it's really unlikely. Um,
Speaker 1: he's not in any formal position of conflict with respect
Speaker 1: the cases coming out of the Trump administration, and in fact,
Speaker 1: no justice has ever accused themselves just because the case
Speaker 1: involves the president who nominated them. Um is a long
Speaker 1: tradition of justices ruling on those cases, and many instances
Speaker 1: ruling against the president who appointed them. Um. So I
Speaker 1: just I don't think he's going to be recusing himself.
Speaker 1: And I can't imagine himself any more than to Justice
Speaker 1: Thomas recusing himself in cases that involve claims of gender
Speaker 1: discrimination or sex harassment. Does what Nicey is as the
Speaker 1: breakdown of the process this time around. UH tell us
Speaker 1: anything perhaps about the timing of future confirmations. Should the
Speaker 1: Senate steer clear of of mid term election years for example? Well,
Speaker 1: if they do that, then that puts half of the
Speaker 1: years off the table. Um. I don't think they will. UM.
Speaker 1: I think when these when these um, when these vacancies
Speaker 1: come up the Senate is the presidents are going to
Speaker 1: nominate in the Senate will confirm. Where that might come
Speaker 1: into play is justices themselves when they decide to retire,
Speaker 1: trying to time it so that they avoid election years
Speaker 1: because we saw with but as we saw with with
Speaker 1: Merrick Garland's vacancy for example, those those can be held.
Speaker 1: So there there are no guarantees. Neil, what do you see?
Speaker 1: There has been talk about UH having an impeachment possible
Speaker 1: of Judge Kevinoll if Democrats retake the House. That's been
Speaker 1: tried in the past but has never been successful with
Speaker 1: a Senate vote. What are the what's the likelihood that
Speaker 1: it might be tried again? It might be tried, it's
Speaker 1: completely feudal. The likelihood of its succeeding is zero. Right,
Speaker 1: you needed to did remove himself from the Court after
Speaker 1: a talk of impeachment well and also after his nomination
Speaker 1: to be Chief Justice had been rejected. Right, so it
Speaker 1: was pretty clear that his continuing on the Court was
Speaker 1: not tenable. And in that case, what was involved, we're
Speaker 1: real credible allegations of financial and other sorts of improprieties. Um,
Speaker 1: Judge Kavanaugh is not accepting that he's done anything wrong,
Speaker 1: and so I I just can't imagine that the parallel
Speaker 1: applying to him. It is going to be very interesting
Speaker 1: watching this all play out. Our thanks to Neil Kinkoff,
Speaker 1: professor at Georgia State University School of Law. President Trump
Speaker 1: is celebrating the confirmation of Brett Kavanaugh to the Supreme Court.
Speaker 1: Speaking at a rally in Kansas on Saturday, Trump called
Speaker 1: Kavanaugh an outstanding man. We have a great new Supreme
Speaker 1: Court justice, and he's gonna be there for many years.
Speaker 1: We are very very proud of him and what he
Speaker 1: and his family had to endure. Looking into the future,
Speaker 1: now we have Jonathan Adler, professor at Case Western Reserve
Speaker 1: University School of Law and director of the Center for
Speaker 1: Business Law and Regulation, on the line with us. Now,
Speaker 1: obviously we won't actually know this until we see Brett
Speaker 1: Kavanaugh at work on the U. S. Supreme Court, But
Speaker 1: how influential could he be in shaping the High Court
Speaker 1: far into the future. Well, I think he will be influential,
Speaker 1: at least in those areas where he has shown a
Speaker 1: great degree of expertise. Uh. He spent twelve years on
Speaker 1: the US Court of Appeals for the d C Circuit,
Speaker 1: which deals with a lot of the most significant cases
Speaker 1: involving federal regulation. And throughout his time on that court,
Speaker 1: we've seen him of an influence on the Supreme Court
Speaker 1: in terms of what cases the Supreme Court takes and
Speaker 1: how the Supreme Court evaluates those sorts of issues. And
Speaker 1: so my view is that if he had that sort
Speaker 1: of influence on the Supreme Court before he reached reached
Speaker 1: that court, we should expect him to be even more
Speaker 1: influential now that he's not down the street but actually
Speaker 1: across the conference table. Some breaking news, Google says they're
Speaker 1: shutting down Google Plus for consumers. On this blog, Google
Speaker 1: shares are down two percent on the news that it's
Speaker 1: shutting down Google Plus for consumers. Jonathan, though he was
Speaker 1: very influential in the cases that came to the court,
Speaker 1: might the Court step back a little bit from taking
Speaker 1: cases that are going to end up likely in a
Speaker 1: five four split for a while in order to try
Speaker 1: to repair the damage that's been done to its image. Well,
Speaker 1: I think certainly the Chief Justice, as we know, like
Speaker 1: to keep the Court out of high profile political disputes
Speaker 1: when he can. I think also, whenever you have a
Speaker 1: new justice, it takes some time before the justices get
Speaker 1: a good sense of how the new justice is going
Speaker 1: to evaluate cases. And I think that it always tends
Speaker 1: to make the Court a little more reluctant to take
Speaker 1: new cases. And I think the political fight over Kavano's
Speaker 1: nomination and the wounds that it created will only magnify
Speaker 1: that normal tendency to move a little slowly when you
Speaker 1: have changes in the courts personnel. We were speaking earlier
Speaker 1: in the program about President Obama's Attorney General, Eric Holder,
Speaker 1: questioning the legitimacy of the court given all that's happened
Speaker 1: leading up to this, Does the Court need to tread
Speaker 1: lightly to regain the country's trust. Well, I think if
Speaker 1: the Court just sticks to what it normally does, that
Speaker 1: over time, I mean, people will will realize that the
Speaker 1: Court is going to continue to decide the sorts of
Speaker 1: cases that has always decided. Most of what the Court
Speaker 1: does is not the sort of thing that makes the
Speaker 1: front page of the New York Times. Most of what
Speaker 1: it does is provide clarity and consistency to various aspects
Speaker 1: of federal law, about rules that that relate to the
Speaker 1: regulation of business, the handling of various types of litigation,
Speaker 1: and so on, and uh that that sort of work
Speaker 1: is going to continue, and I think will will reassure
Speaker 1: folks at the Court is still very much the type
Speaker 1: of court that we've we've come to down. Clarence Thomas
Speaker 1: said in his memoirs that he used to wear a
Speaker 1: bulletproof vest and those days are behind him. But Brett Kavanaugh,
Speaker 1: in his his confirmation was even more contentious, and he
Speaker 1: went outside the typical role of the Supreme Court nominee
Speaker 1: in several ways with the Fox TV interview, the Wall
Speaker 1: Street Journal editorial. So might it be more difficult for
Speaker 1: him to overcome any preconceptions the public has. Well, it's
Speaker 1: certainly understandable that that some portion of the public is
Speaker 1: going to be skeptical of Justice Kavanaugh for some time,
Speaker 1: and he certainly should be aware of that. In terms
Speaker 1: of thinking about public appearances and the like, what sorts
Speaker 1: of speeches he gives. I think it would make sense
Speaker 1: for him to be aware that that, at least for
Speaker 1: a time, he's going to remain a devisive figure. I
Speaker 1: would think and certainly hope that he at some point
Speaker 1: in the near future takes an opportunity to acknowledge and
Speaker 1: reflect on the nomination process and acknowledge his own part,
Speaker 1: particularly at that one hearing in in feeding the rancor,
Speaker 1: and the partisanship of this process. Can you give this
Speaker 1: a little color on what it's likely to be like
Speaker 1: the first time that Kavanaugh takes his place in the
Speaker 1: Supreme Court. Well, he'll be he he will be on
Speaker 1: the bench tomorrow, I believe when the court uh, here's
Speaker 1: the oral argument and and um, you know, I think
Speaker 1: you know he will be at the end because the
Speaker 1: justice sit in order of seniority, with the Chief in
Speaker 1: the middle and then alternating on either side. So he
Speaker 1: will be at a at the far end of the court. Um.
Speaker 1: I don't think the justices are going to treat him
Speaker 1: any differently. Um. Four of the justices in addition to
Speaker 1: the Chief, were at his swearing in on Saturday, including
Speaker 1: Justice Kagan and Ginsburg Um. But I do think there
Speaker 1: will be quite a bit of attention the first time
Speaker 1: he asks a question. I think a lot of us
Speaker 1: are wondering whether he will be as aggressive uh at
Speaker 1: oral argument as Justice Course, which was during his first term.
Speaker 1: And Um coming up is going to be the Court
Speaker 1: considering overturning the separate sovereign's doctrine. Where might his his
Speaker 1: inclinations lie in that kind of a case. I think
Speaker 1: that that's a particularly hard case to judge for for
Speaker 1: a bunch of reasons, one of which is um. While
Speaker 1: Medici Circus he dealt a lot with questions of federal regulation,
Speaker 1: he didn't deal nearly so much with either questions of
Speaker 1: criminal law or with the issues of federalism. Because DC
Speaker 1: is not a state. The sort of federalism concerns that
Speaker 1: come up, for example, in this dual sovereignty case relating
Speaker 1: to double jeopardy didn't really emerge. So on some of
Speaker 1: those sorts of issues, I think we really have a
Speaker 1: hard time and can only speculate about how he might
Speaker 1: approach them. Would you say the cases coming up on
Speaker 1: sexual orientation and gender identity would be some of the
Speaker 1: most closely watched just ahead. UM, well, certainly when the
Speaker 1: when the Court starts to take some of those cases.
Speaker 1: I think those would be very closely watched. There are
Speaker 1: some cases relating to affirmative action relating to abortion that
Speaker 1: are working their way up in the lower courts. Um.
Speaker 1: There are some very important regulatory cases relating to climate
Speaker 1: change regulation or two uh the f SECS regulation that
Speaker 1: that also would be worth watching if they make the court.
Speaker 1: Thanks to Jonathan Adler, Professor at Case Western Reserve of
Speaker 1: University School of Law and director of the Center for
Speaker 1: Business Law and Regulation. Thanks for listening to the Bloomberg
Speaker 1: Law Podcast. You can subscribe and listen to the show
Speaker 1: on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast.
Speaker 1: I'm June Brosso. This is Bloomberg