1
00:00:02,759 --> 00:00:07,000
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

2
00:00:08,720 --> 00:00:13,319
Speaker 2: The lawsuits have been called unprecedented. The Trump administration has

3
00:00:13,360 --> 00:00:18,200
Speaker 2: filed lawsuits against four Blue states over their lawsuits against

4
00:00:18,200 --> 00:00:22,080
Speaker 2: fossil fuel companies. The states are trying to collect billions

5
00:00:22,160 --> 00:00:26,639
Speaker 2: of dollars from oil companies like Exxon, Mobil, BP, and

6
00:00:26,840 --> 00:00:31,440
Speaker 2: Chevron to hold them accountable for damages caused by climate change.

7
00:00:31,960 --> 00:00:36,280
Speaker 2: But last week, the Justice Department suit Hawaii, Michigan, New York,

8
00:00:36,320 --> 00:00:40,199
Speaker 2: and Vermont trying to shut down their lawsuits against the

9
00:00:40,240 --> 00:00:44,760
Speaker 2: fossil fuel companies. My guest is environmental law expert Pat Parento,

10
00:00:45,159 --> 00:00:48,400
Speaker 2: a professor at the Vermont Law and Graduate School. Pat,

11
00:00:48,520 --> 00:00:53,000
Speaker 2: is it unprecedented or just unusual for an administration to

12
00:00:53,120 --> 00:00:57,720
Speaker 2: be suing states over their lawsuits against companies?

13
00:00:58,840 --> 00:01:02,440
Speaker 1: It's unheard of. There's never been a case where the

14
00:01:02,480 --> 00:01:07,640
Speaker 1: federal government has filed a lawsuit in federal courts to

15
00:01:07,959 --> 00:01:12,679
Speaker 1: prevent states from bringing their own actions in their own

16
00:01:12,760 --> 00:01:17,920
Speaker 1: state courts. It's almost like saying, don't you even think

17
00:01:17,959 --> 00:01:22,480
Speaker 1: about it? So I predict that these cases will be dismissed.

18
00:01:22,640 --> 00:01:27,920
Speaker 1: There's no legal basis to do this kind of preemptive

19
00:01:28,000 --> 00:01:32,520
Speaker 1: strike before you've even seen the complaint. Now Hawaii has sued,

20
00:01:32,560 --> 00:01:35,479
Speaker 1: so we now know what their complaint looks like. Michigan,

21
00:01:35,800 --> 00:01:39,360
Speaker 1: the Attorney general there, Dana Nessel, is determined to file

22
00:01:39,440 --> 00:01:42,800
Speaker 1: suit but hasn't yet. But you know, this move is

23
00:01:43,080 --> 00:01:46,600
Speaker 1: kind of a show of force, shot across the bow

24
00:01:47,160 --> 00:01:49,280
Speaker 1: sort of move. But it's not going to result in

25
00:01:49,360 --> 00:01:52,680
Speaker 1: preventing the States from bringing their cases. There's still going

26
00:01:52,760 --> 00:01:55,920
Speaker 1: to be arguments about whether the cases can move forward

27
00:01:56,000 --> 00:01:58,160
Speaker 1: or whether they're going to be dismissed, but that's a

28
00:01:58,240 --> 00:01:59,000
Speaker 1: separate question.

29
00:01:59,480 --> 00:02:03,360
Speaker 2: Here's what Atorney General Pambondi said. These burdensome and illogically

30
00:02:03,440 --> 00:02:08,639
Speaker 2: motivated laws and lawsuits threaten American energy independence and our

31
00:02:08,720 --> 00:02:14,120
Speaker 2: country's economic and national security. So they say they violate

32
00:02:14,360 --> 00:02:18,120
Speaker 2: the federal government's foreign affairs power. They're preempted by the

33
00:02:18,160 --> 00:02:20,919
Speaker 2: Clean Air Act. Tell us about what their claims are.

34
00:02:22,400 --> 00:02:26,679
Speaker 1: Their claims are groundless, they're fact free. The United States

35
00:02:26,840 --> 00:02:29,720
Speaker 1: is the energy dominant force in the world, where the

36
00:02:30,040 --> 00:02:33,560
Speaker 1: net exporter of oil and gas. We've got more than

37
00:02:33,720 --> 00:02:37,600
Speaker 1: adequate reserves to provide for our energy needs as well

38
00:02:37,600 --> 00:02:41,200
Speaker 1: as to export energy. The problem with that, of course,

39
00:02:41,760 --> 00:02:45,880
Speaker 1: is that's driving us further into the climate crisis, closer

40
00:02:46,280 --> 00:02:49,959
Speaker 1: to the climate cliff that climate scientists are warning us about.

41
00:02:50,000 --> 00:02:54,520
Speaker 1: But the energy is there, it's booming, so there is

42
00:02:54,560 --> 00:02:58,440
Speaker 1: no crisis. There is no emergency on that front. And

43
00:02:58,560 --> 00:03:02,520
Speaker 1: in terms of baseless well, you know, that's why we

44
00:03:02,600 --> 00:03:06,800
Speaker 1: have courts. We'll see the cases that are proceeding against

45
00:03:06,800 --> 00:03:10,120
Speaker 1: the oil companies which the Trump administration now wants to

46
00:03:10,480 --> 00:03:14,480
Speaker 1: go to bat for. Six of them filed by different states,

47
00:03:14,919 --> 00:03:18,079
Speaker 1: are moving towards trial. The one in Hawaii that was

48
00:03:18,120 --> 00:03:21,160
Speaker 1: filed by the Honolulu it's different from the case that

49
00:03:21,240 --> 00:03:24,400
Speaker 1: the state has just filed that's in discovery, that's moving

50
00:03:24,440 --> 00:03:27,360
Speaker 1: to trial and so forth. So you know, there's a

51
00:03:27,360 --> 00:03:30,359
Speaker 1: way to determine whether these cases have merit, and it's

52
00:03:30,400 --> 00:03:33,000
Speaker 1: not in the press, and it's not with a statement

53
00:03:33,000 --> 00:03:36,400
Speaker 1: from Pambondi. It's a decision that will be reached in

54
00:03:36,520 --> 00:03:40,760
Speaker 1: due course based on the evidence by juries in state courts,

55
00:03:41,320 --> 00:03:43,320
Speaker 1: and we'll see how that all plays out. It's a

56
00:03:43,360 --> 00:03:46,360
Speaker 1: long game. We're a long way from knowing exactly what

57
00:03:46,480 --> 00:03:48,960
Speaker 1: the final result is going to be. But one thing

58
00:03:49,000 --> 00:03:51,800
Speaker 1: we do know, all of these states that are bringing

59
00:03:51,840 --> 00:03:57,160
Speaker 1: these actions are suffering enormous costs and damages from the

60
00:03:57,200 --> 00:04:01,240
Speaker 1: effects of the climate disruption that we're currently seeing, never

61
00:04:01,320 --> 00:04:05,440
Speaker 1: mind what's coming in the future. Right So in you know,

62
00:04:05,600 --> 00:04:09,280
Speaker 1: Vermont flooding has caused over a billion dollars worth of

63
00:04:09,360 --> 00:04:13,560
Speaker 1: damage in back to back flooding events twenty twenty three,

64
00:04:13,720 --> 00:04:17,360
Speaker 1: twenty twenty four and more to come. So you know,

65
00:04:17,440 --> 00:04:21,640
Speaker 1: there's real damages, real costs, And these cases are designed

66
00:04:21,640 --> 00:04:26,920
Speaker 1: to say, very simply, your product oil companies caused the damage.

67
00:04:27,240 --> 00:04:30,400
Speaker 1: You didn't intend it, perhaps you knew about it, you

68
00:04:30,440 --> 00:04:32,960
Speaker 1: didn't tell the truth about it. That's what these cases

69
00:04:33,000 --> 00:04:35,320
Speaker 1: are alleging, of course, and then have to prove. But

70
00:04:35,600 --> 00:04:39,080
Speaker 1: the truth is that the damage has occurred, the costs

71
00:04:39,080 --> 00:04:42,880
Speaker 1: of being incurred, and the companies that have made very

72
00:04:42,920 --> 00:04:47,360
Speaker 1: significant profits off of marketing their products and selling their

73
00:04:47,400 --> 00:04:50,640
Speaker 1: products to people who wanted them. For sure, you know,

74
00:04:51,240 --> 00:04:56,000
Speaker 1: in our legal tradition that means the result of your activity,

75
00:04:56,400 --> 00:04:59,920
Speaker 1: which has caused the states to incur costs, exposes you

76
00:05:00,200 --> 00:05:04,760
Speaker 1: to liability for recovery of those costs. That's the nature

77
00:05:05,200 --> 00:05:06,760
Speaker 1: of the cases that are underway.

78
00:05:07,400 --> 00:05:12,640
Speaker 2: The federal government's lawsuits also allege that the state suits

79
00:05:12,800 --> 00:05:16,159
Speaker 2: are a risk to national security. According to a statement

80
00:05:16,200 --> 00:05:19,719
Speaker 2: from the Attorney General Pam Bondi, it makes the US

81
00:05:20,040 --> 00:05:24,320
Speaker 2: less able to defend itself from hostile foreign actors. The

82
00:05:24,360 --> 00:05:29,159
Speaker 2: Trump administration is using national security concerns in all kinds

83
00:05:29,160 --> 00:05:33,839
Speaker 2: of actions, from invoking the Alien Enemies Act up to

84
00:05:34,120 --> 00:05:36,799
Speaker 2: tariffs on movies made overseas.

85
00:05:36,760 --> 00:05:41,000
Speaker 1: And of course prior administrations, even as far back as

86
00:05:41,040 --> 00:05:45,560
Speaker 1: George W. Bush, a Republican administration. Of course, the Defense

87
00:05:45,600 --> 00:05:48,680
Speaker 1: Department has been saying climate change is one of the

88
00:05:49,440 --> 00:05:56,040
Speaker 1: major threats to national security. It's a force multiplier effect.

89
00:05:56,400 --> 00:05:59,840
Speaker 1: It causes disruption around the world, it makes us more

90
00:06:00,040 --> 00:06:04,320
Speaker 1: vulnerable to terrorism, et cetera. That's the Defense Department speaking,

91
00:06:04,400 --> 00:06:08,040
Speaker 1: that's not environmental groups. That's not the states that are

92
00:06:08,040 --> 00:06:12,559
Speaker 1: bringing these actions creating these threats. These threats are real

93
00:06:12,760 --> 00:06:16,200
Speaker 1: and they're the result of these impacts that are causing

94
00:06:16,240 --> 00:06:19,599
Speaker 1: the climate system to basically go out of control. So,

95
00:06:20,440 --> 00:06:25,280
Speaker 1: you know, the whole idea that the states seeking recovery

96
00:06:25,320 --> 00:06:30,599
Speaker 1: of these costs are threatening national security is pure buncom

97
00:06:31,000 --> 00:06:34,960
Speaker 1: It's not true, it's not real, it can't be proven,

98
00:06:35,600 --> 00:06:41,080
Speaker 1: and the companies have raised various kinds of arguments many

99
00:06:41,120 --> 00:06:44,800
Speaker 1: times the courts that have considered those arguments have rejected them.

100
00:06:44,800 --> 00:06:47,960
Speaker 1: There's still cases pending. We'll see how they go. But

101
00:06:48,520 --> 00:06:50,839
Speaker 1: there's a way to make those arguments if you want

102
00:06:50,880 --> 00:06:54,280
Speaker 1: to make them, but so far they have not won

103
00:06:54,360 --> 00:06:54,720
Speaker 1: the day.

104
00:06:55,279 --> 00:07:00,320
Speaker 2: Hawaii's Attorney General An Lopez, besides calling the Lass suit

105
00:07:00,480 --> 00:07:03,400
Speaker 2: deeply disturbing, said it was a direct attack on Hawaii's

106
00:07:03,480 --> 00:07:07,760
Speaker 2: rights as a sovereign state. So states have constitutionally protected rights.

107
00:07:07,920 --> 00:07:11,320
Speaker 2: But where's the line between the state's rights and the

108
00:07:11,360 --> 00:07:12,640
Speaker 2: federal government's rights.

109
00:07:13,160 --> 00:07:17,040
Speaker 1: Well, you know, it is certainly true that states have

110
00:07:17,240 --> 00:07:20,880
Speaker 1: limits on what kinds of actions they can bring that

111
00:07:20,920 --> 00:07:25,960
Speaker 1: affect interstate commerce, for example, And you know that's a

112
00:07:26,120 --> 00:07:28,680
Speaker 1: very complicated area of the law. We had a recent

113
00:07:28,760 --> 00:07:33,080
Speaker 1: decision from the US Supreme Court that was badly splintered.

114
00:07:33,560 --> 00:07:39,760
Speaker 1: It involved California's regulation of pork production. In course, California

115
00:07:39,800 --> 00:07:42,880
Speaker 1: being the fifth largest economy in the world, it imports

116
00:07:42,960 --> 00:07:47,200
Speaker 1: a lot of pork products, particularly from places like North Carolina,

117
00:07:47,480 --> 00:07:51,760
Speaker 1: which has these massive factory farms. Right, and so the

118
00:07:51,880 --> 00:07:56,680
Speaker 1: latest announcement from the Supreme Court is very fractured, but

119
00:07:57,200 --> 00:08:03,120
Speaker 1: the essence of it was to uphold California's law regulating

120
00:08:03,240 --> 00:08:09,000
Speaker 1: the way hogs are raised in North Carolina. Okay, So

121
00:08:09,880 --> 00:08:13,000
Speaker 1: one of the central features of the limits on state

122
00:08:13,080 --> 00:08:19,440
Speaker 1: authority is you can't unduly burden interstate commerce with the

123
00:08:19,520 --> 00:08:23,040
Speaker 1: legislation that a state might enact. Even in that case,

124
00:08:23,600 --> 00:08:29,600
Speaker 1: the Supreme Court upheld basically California's law. The point is, again,

125
00:08:30,120 --> 00:08:34,319
Speaker 1: there are arguments you can make that states have exceeded

126
00:08:34,440 --> 00:08:40,120
Speaker 1: their authority by externalizing their law to other states or

127
00:08:40,120 --> 00:08:44,240
Speaker 1: to the nation. That's something that Trump administration is arguing

128
00:08:44,559 --> 00:08:48,840
Speaker 1: that once state can't set rules that govern all states

129
00:08:48,880 --> 00:08:53,360
Speaker 1: for example. Okay, I understand that argument. You can make

130
00:08:53,400 --> 00:08:57,439
Speaker 1: that argument and see how it goes. But you can't

131
00:08:57,480 --> 00:09:00,880
Speaker 1: say you can't even bring a lawsuit based on the

132
00:09:01,000 --> 00:09:06,719
Speaker 1: state law because we the federal government, have determined it's unconstitutional.

133
00:09:06,800 --> 00:09:10,640
Speaker 1: That's not the way it works. So if the Trump

134
00:09:10,720 --> 00:09:14,959
Speaker 1: administration wants to intervene in some of these ongoing cases

135
00:09:15,000 --> 00:09:18,320
Speaker 1: in Vermont and New York, for example, which they now

136
00:09:18,360 --> 00:09:21,720
Speaker 1: have said they're going to do, if they haven't already, fine,

137
00:09:22,240 --> 00:09:24,760
Speaker 1: come on in, join the party, make your argument and

138
00:09:24,800 --> 00:09:29,320
Speaker 1: see what happens. But they don't enjoy any particularly special

139
00:09:29,720 --> 00:09:32,600
Speaker 1: authority when they do that, they can't walk into court

140
00:09:32,640 --> 00:09:36,320
Speaker 1: and say we're right. Just issue an injunction or issue

141
00:09:36,360 --> 00:09:39,000
Speaker 1: an order according to what we would like to have

142
00:09:39,080 --> 00:09:41,800
Speaker 1: you do. Again, that's not the way it works. Make

143
00:09:41,880 --> 00:09:44,680
Speaker 1: your argument, see if you can win it. I don't

144
00:09:44,679 --> 00:09:47,240
Speaker 1: think they will, but they're entitled to try.

145
00:09:47,679 --> 00:09:51,480
Speaker 2: They file lawsuits against Vermont and New York. And are

146
00:09:51,480 --> 00:09:53,480
Speaker 2: these based on the Superfund Acts?

147
00:09:54,520 --> 00:09:58,720
Speaker 1: Yes, they are, and they are following in the footsteps

148
00:09:58,760 --> 00:10:02,679
Speaker 1: of the state attorneys general in the Republican states, the

149
00:10:02,720 --> 00:10:06,760
Speaker 1: Red States, twenty four of them have file lawsuits against

150
00:10:06,840 --> 00:10:09,880
Speaker 1: Vermont and New York. So the Trump administration is a

151
00:10:09,920 --> 00:10:12,400
Speaker 1: little late to that party as well, but they're joining

152
00:10:12,920 --> 00:10:16,360
Speaker 1: with their colleagues in the Red States to argue that

153
00:10:16,640 --> 00:10:21,800
Speaker 1: Vermont and New York's climate superfund laws are unconstitutional. Same

154
00:10:22,080 --> 00:10:25,960
Speaker 1: array of issues. You mentioned earlier that the Clean Air

155
00:10:26,040 --> 00:10:29,520
Speaker 1: Act preemps these cases. Well, wait a minute, these cases

156
00:10:29,559 --> 00:10:33,559
Speaker 1: are not about emissions. They're not regulating sources of emissions.

157
00:10:33,720 --> 00:10:38,440
Speaker 1: They're not regulating power plants. They're regulating the producers of

158
00:10:38,480 --> 00:10:41,400
Speaker 1: the products the oil and gas that are of course

159
00:10:41,640 --> 00:10:46,000
Speaker 1: fueling these power plants and cars and other things. But

160
00:10:46,520 --> 00:10:50,720
Speaker 1: their arguments are based on superfund type remedies, which are

161
00:10:50,920 --> 00:10:54,680
Speaker 1: when you have an indivisible harm, which climate change is

162
00:10:54,800 --> 00:10:58,440
Speaker 1: all of these greenhouse gases mixed in the atmosphere and

163
00:10:58,520 --> 00:11:02,400
Speaker 1: you can't tell. It doesn't matter where the emissions are

164
00:11:02,400 --> 00:11:08,280
Speaker 1: coming from, they're all causing you know, indivisible damage, real damage,

165
00:11:08,360 --> 00:11:11,960
Speaker 1: real cost. And under the polluter pays principle, which is

166
00:11:12,000 --> 00:11:16,560
Speaker 1: what superfund is, there's strict liability, not based on fault.

167
00:11:17,480 --> 00:11:21,600
Speaker 1: It's a no fault kind of system. But the idea is, again,

168
00:11:22,080 --> 00:11:25,640
Speaker 1: the public shouldn't bear the costs caused by your product.

169
00:11:26,000 --> 00:11:29,160
Speaker 1: You the manufacturer of the products, the ones that are

170
00:11:29,160 --> 00:11:34,640
Speaker 1: in position to either prevent the damage or certainly tell

171
00:11:34,679 --> 00:11:36,640
Speaker 1: the truth about what the damage is going to be

172
00:11:37,120 --> 00:11:40,840
Speaker 1: and support measures to mitigate the harm or prepare for

173
00:11:40,880 --> 00:11:44,720
Speaker 1: the harm, etc. Where your product has caused states to

174
00:11:44,800 --> 00:11:48,720
Speaker 1: incur costs, you're liable as a matter of law. That's

175
00:11:48,880 --> 00:11:52,080
Speaker 1: very well established law at the federal level. The new

176
00:11:52,440 --> 00:11:55,840
Speaker 1: wrinkle here is the states are borrowing from the federal

177
00:11:55,920 --> 00:11:59,760
Speaker 1: superfund law and using it and enacting it as state

178
00:11:59,800 --> 00:12:03,360
Speaker 1: law law and applying it to climate change. Again, I'll

179
00:12:03,400 --> 00:12:08,480
Speaker 1: admit this is an expansion of the super fun theory

180
00:12:08,520 --> 00:12:13,120
Speaker 1: of liability into a very complex area of both law

181
00:12:13,160 --> 00:12:16,839
Speaker 1: and fact and science right with climate change. And again,

182
00:12:17,240 --> 00:12:20,760
Speaker 1: until we have seen how these cases work out and

183
00:12:20,880 --> 00:12:23,679
Speaker 1: are litigated and get to the jury and see what

184
00:12:23,760 --> 00:12:27,280
Speaker 1: juries do with the evidence, we don't know whether the

185
00:12:27,280 --> 00:12:30,520
Speaker 1: states are actually going to succeed in these cases. There's

186
00:12:30,520 --> 00:12:32,880
Speaker 1: a long way to go on that, and lots of

187
00:12:33,320 --> 00:12:36,480
Speaker 1: obstacles and arguments to overcome for the states to recover.

188
00:12:36,840 --> 00:12:40,960
Speaker 1: But the basic theory that the states are pursuing here

189
00:12:41,360 --> 00:12:45,440
Speaker 1: is well understood. It's been well established at federal law,

190
00:12:45,720 --> 00:12:48,360
Speaker 1: and now we'll see if it can apply to climate

191
00:12:48,440 --> 00:12:49,400
Speaker 1: change damage.

192
00:12:49,520 --> 00:12:52,920
Speaker 2: Coming up next, we'll tell you about similar cases that

193
00:12:52,960 --> 00:12:56,559
Speaker 2: the Supreme Court has turned away. You're listening to Bloomberg.

194
00:12:57,440 --> 00:13:01,679
Speaker 2: I've been talking to Professor Pat Parento Law and Graduate School.

195
00:13:02,040 --> 00:13:06,640
Speaker 2: In January, didn't the Supreme Court turn down an attempt

196
00:13:06,679 --> 00:13:09,880
Speaker 2: by a group of nineteen Republican led states to block

197
00:13:10,000 --> 00:13:14,800
Speaker 2: lawsuits by five Democratic states against oil and gas companies

198
00:13:15,120 --> 00:13:17,960
Speaker 2: trying to hold them responsible for climate change?

199
00:13:18,320 --> 00:13:21,640
Speaker 1: Yes, they did in two different cases, one from Alabama,

200
00:13:21,679 --> 00:13:26,600
Speaker 1: one from Ohio. And these were original actions that the

201
00:13:26,720 --> 00:13:29,200
Speaker 1: Red States were trying to get the Supreme Court to

202
00:13:30,040 --> 00:13:33,400
Speaker 1: take these cases and block all of these different lawsuits

203
00:13:33,440 --> 00:13:36,640
Speaker 1: by the States, And you're right, the Supreme Court denied

204
00:13:37,200 --> 00:13:40,720
Speaker 1: the review of those cases. Are denied invoking their original

205
00:13:41,040 --> 00:13:44,760
Speaker 1: jurisdiction without an opinion. By the way, the Supreme Court

206
00:13:44,800 --> 00:13:49,360
Speaker 1: also rejected a request for review in the Honolulu case,

207
00:13:49,920 --> 00:13:53,760
Speaker 1: which probably was a better vehicle. Frankly, if the Supreme

208
00:13:53,800 --> 00:13:56,800
Speaker 1: Court was going to take a case that would look

209
00:13:56,840 --> 00:14:01,960
Speaker 1: at these constitutional issues of preemption, commerce clause, etc. It

210
00:14:02,040 --> 00:14:05,400
Speaker 1: would have been the Honolulu case. It took the Supreme

211
00:14:05,440 --> 00:14:10,839
Speaker 1: Court three or four different conferences, including requesting the views

212
00:14:10,840 --> 00:14:14,679
Speaker 1: of the Solicitor General, before the Supreme Court finally decided

213
00:14:15,040 --> 00:14:18,000
Speaker 1: not to take that case, which is clearly a green

214
00:14:18,080 --> 00:14:21,640
Speaker 1: light for the cases to proceed and for the Supreme

215
00:14:21,680 --> 00:14:24,720
Speaker 1: Court for the moment at least, to stay its hand

216
00:14:25,160 --> 00:14:28,359
Speaker 1: and wait to see how these cases sort of percolate

217
00:14:28,840 --> 00:14:30,800
Speaker 1: up and back to the Supreme Court.

218
00:14:31,640 --> 00:14:34,080
Speaker 2: So, I mean, we've talked before, how about how the

219
00:14:34,120 --> 00:14:40,640
Speaker 2: Trump administration is targeting climate policy and the EBA administrator

220
00:14:40,840 --> 00:14:44,880
Speaker 2: Lee Zelden has said his agency is going to overturn

221
00:14:45,160 --> 00:14:48,200
Speaker 2: a finding under the Clean Air Act that greenhouse gas

222
00:14:48,240 --> 00:14:50,720
Speaker 2: is in danger public health and welfare.

223
00:14:51,360 --> 00:14:55,800
Speaker 1: Oh yeah, so you talk about irony or maybe even

224
00:14:55,840 --> 00:14:59,080
Speaker 1: the other word hypocrisy. Here's the way this works. The

225
00:14:59,120 --> 00:15:04,160
Speaker 1: Department of just in these cases challenging the state lawsuits,

226
00:15:04,840 --> 00:15:10,000
Speaker 1: is saying that those state cases are preempted by the

227
00:15:10,080 --> 00:15:14,280
Speaker 1: Clean Air Act because it regulates all of these greenhouse

228
00:15:14,320 --> 00:15:20,840
Speaker 1: gas emissions. And yet their client, Administrator Zelden, has said,

229
00:15:21,440 --> 00:15:27,760
Speaker 1: I am embarked on a process to repeal the endangerment finding,

230
00:15:28,560 --> 00:15:32,640
Speaker 1: which is the foundation for all of the regulation under

231
00:15:32,680 --> 00:15:35,680
Speaker 1: the Clean Air Act. That doesn't add up, does it?

232
00:15:36,560 --> 00:15:40,800
Speaker 1: If the Clean Air Act did preempt these cases, and

233
00:15:40,840 --> 00:15:43,120
Speaker 1: by the way, I don't think it does. But if

234
00:15:43,160 --> 00:15:47,840
Speaker 1: it did, according to the Justice Department's argument, then what

235
00:15:47,920 --> 00:15:53,760
Speaker 1: the heck is Administrator Zelden doing taking away EPA's authority

236
00:15:54,200 --> 00:15:57,480
Speaker 1: to actually regulate the emissions makes no sense.

237
00:15:57,920 --> 00:16:01,840
Speaker 2: And what has the Interior Secretary Doug Burkham been up to.

238
00:16:02,560 --> 00:16:05,800
Speaker 1: Well, he's the head of this tax force and I

239
00:16:05,840 --> 00:16:09,600
Speaker 1: forget the exact name of it, with the Energy Basically,

240
00:16:09,720 --> 00:16:13,360
Speaker 1: task Force is the idea of an entity that's going

241
00:16:13,440 --> 00:16:19,960
Speaker 1: to restore America's energy dominance. So his role is to

242
00:16:20,040 --> 00:16:25,400
Speaker 1: facilitate the development of fossil fuels, fast tracking permits and

243
00:16:25,480 --> 00:16:30,200
Speaker 1: licenses and leases and all of that. So he's coordinating

244
00:16:30,240 --> 00:16:37,280
Speaker 1: across the federal government to make sure that Trump's policy

245
00:16:37,440 --> 00:16:42,040
Speaker 1: of accelerating the development of just fossil fuel, he's also

246
00:16:42,120 --> 00:16:48,600
Speaker 1: opposing renewable energy. They've canceled permits for offshore wind development

247
00:16:48,760 --> 00:16:53,040
Speaker 1: on the on the East Coast, They've withdrawn areas that

248
00:16:53,080 --> 00:16:57,120
Speaker 1: were designated for wind development in the Gulf, et cetera.

249
00:16:57,280 --> 00:17:01,880
Speaker 1: So they're doing two things at once, promoting fast tracked

250
00:17:02,400 --> 00:17:06,920
Speaker 1: fossil fuel development while inhibiting and prohibiting and taking money

251
00:17:06,960 --> 00:17:13,440
Speaker 1: away from renewable energy. So that's Bergham's role in all

252
00:17:13,480 --> 00:17:18,959
Speaker 1: of this facilitate fossil, block renewable.

253
00:17:19,080 --> 00:17:22,240
Speaker 2: Is this like a broader attack than just by the

254
00:17:22,280 --> 00:17:26,440
Speaker 2: Trump administration because House Republicans passed a measure that would

255
00:17:26,440 --> 00:17:30,480
Speaker 2: thwart California rules that ban the sale of new gas

256
00:17:30,520 --> 00:17:34,240
Speaker 2: cars by twenty thirty five, joined by thirty five Democrats.

257
00:17:34,560 --> 00:17:35,919
Speaker 2: I mean, what's that about.

258
00:17:36,880 --> 00:17:40,840
Speaker 1: Yeah, that's what's called the California Waiver. Under the Clean

259
00:17:40,880 --> 00:17:47,600
Speaker 1: Air Act, California has independent authority to set more stringent

260
00:17:48,520 --> 00:17:55,040
Speaker 1: vehicle emission standards and even relatedly, fuel economy standards. California

261
00:17:55,160 --> 00:17:58,639
Speaker 1: has done that ever since nineteen seventy when the Clean

262
00:17:58,640 --> 00:18:01,760
Speaker 1: Air Act was passed, and of course California at that

263
00:18:01,920 --> 00:18:04,760
Speaker 1: time had some of the worst air quality in the country.

264
00:18:04,800 --> 00:18:07,960
Speaker 1: Now other places like Houston and Denver compete with that,

265
00:18:08,160 --> 00:18:11,080
Speaker 1: but still there's a lot of serious air quality problems.

266
00:18:11,119 --> 00:18:15,760
Speaker 1: So California has this unique authority which they've used and

267
00:18:15,840 --> 00:18:19,400
Speaker 1: has been upheld by various administrations over time for over

268
00:18:19,480 --> 00:18:23,000
Speaker 1: forty years. It's given us some of the most innovative

269
00:18:23,600 --> 00:18:30,119
Speaker 1: clean car technologies, think catalytic converters, which eliminated lead poisoning

270
00:18:30,200 --> 00:18:34,400
Speaker 1: in the air, which was killing people and causing serious

271
00:18:34,520 --> 00:18:38,280
Speaker 1: brain injuries to children, and so on. It gave us

272
00:18:38,320 --> 00:18:43,000
Speaker 1: the hybrid vehicle technology because it was California who told

273
00:18:43,080 --> 00:18:47,399
Speaker 1: Japan and other countries producing automobiles that they wanted to

274
00:18:47,480 --> 00:18:49,919
Speaker 1: sell in California that they were going to have to

275
00:18:50,000 --> 00:18:54,600
Speaker 1: make their low emission vehicle regulations more stringent than what

276
00:18:54,760 --> 00:19:00,800
Speaker 1: EPA was requiring. And that's what led Toyota to begin

277
00:19:00,880 --> 00:19:05,359
Speaker 1: to develop the now hybrid technologies that we see being

278
00:19:05,400 --> 00:19:08,520
Speaker 1: developed all over the world and so forth. So the

279
00:19:08,640 --> 00:19:13,359
Speaker 1: California Waiver has ensured that the United States has been

280
00:19:13,400 --> 00:19:19,760
Speaker 1: a leader in clean car technologies right now. Of course,

281
00:19:20,000 --> 00:19:25,080
Speaker 1: the House Republicans have used what's called the Congressional Review

282
00:19:25,200 --> 00:19:29,639
Speaker 1: Act process, which requires just a simple majority in both

283
00:19:29,680 --> 00:19:33,160
Speaker 1: houses of Congress to pass a resolution, which, of course

284
00:19:33,200 --> 00:19:36,560
Speaker 1: then the president would sign and Trump certainly will sign

285
00:19:36,600 --> 00:19:39,840
Speaker 1: this one. And so that's what's just happened in the

286
00:19:39,880 --> 00:19:45,119
Speaker 1: House is they use this CRA process to revoke the

287
00:19:45,200 --> 00:19:48,679
Speaker 1: California waiver. Here's the tricky thing about it. When it

288
00:19:48,720 --> 00:19:53,760
Speaker 1: gets to the Senate, there's a rule which requires the

289
00:19:53,800 --> 00:20:00,159
Speaker 1: Senate parliamentarian to certify that a provision in a a

290
00:20:00,440 --> 00:20:04,200
Speaker 1: fiscal bill, a money bill, which is what the House

291
00:20:04,280 --> 00:20:08,920
Speaker 1: is working on, the reconciliation bill, a budget bill. Right

292
00:20:09,560 --> 00:20:13,800
Speaker 1: So in the Senate, the parliamentarian has ruled you can't

293
00:20:14,160 --> 00:20:22,080
Speaker 1: include revocation of the California waiver in the Senate because

294
00:20:22,119 --> 00:20:26,520
Speaker 1: it's not germane to the budget bill. This is called

295
00:20:26,520 --> 00:20:30,399
Speaker 1: the Bird rule, by the way, after Senator Bird. But

296
00:20:30,800 --> 00:20:34,280
Speaker 1: the Republicans in the Senate are now trying to mount

297
00:20:35,080 --> 00:20:41,719
Speaker 1: a supermajority to overturn the parliamentarian's rule on that. So

298
00:20:42,320 --> 00:20:47,280
Speaker 1: it's a long winded, unfortunately conversation. But we don't know

299
00:20:47,520 --> 00:20:52,520
Speaker 1: whether the revocation of the California waiver will pass the Senate.

300
00:20:52,640 --> 00:20:55,760
Speaker 1: It looks like it might, and that would be a

301
00:20:55,840 --> 00:21:02,080
Speaker 1: very unfortunate thing for not only for climate change regulation,

302
00:21:02,640 --> 00:21:06,440
Speaker 1: but just for public health in general, because the more

303
00:21:06,520 --> 00:21:11,720
Speaker 1: that you eliminate emissions from vehicles, volatile organic compounds, and

304
00:21:11,840 --> 00:21:16,840
Speaker 1: other toxic air pollutants, the better people's health are that

305
00:21:16,880 --> 00:21:20,560
Speaker 1: are breathing all of that automotive pollution in the big

306
00:21:20,600 --> 00:21:24,679
Speaker 1: cities of America. Right, So it isn't just climate that

307
00:21:24,680 --> 00:21:30,520
Speaker 1: they're impacting with revoking the California waiver. They're really damaging

308
00:21:30,800 --> 00:21:32,640
Speaker 1: public health across the country.

309
00:21:33,119 --> 00:21:37,080
Speaker 2: So we'll see whether these Justice Department lawsuits get very

310
00:21:37,080 --> 00:21:42,640
Speaker 2: far or whether they're dismissed at an early stage. President

311
00:21:42,680 --> 00:21:47,359
Speaker 2: Donald Trump's first appellate court nominee will be Tennessee state

312
00:21:47,480 --> 00:21:51,399
Speaker 2: litigator Whitney Hernandorfer to the US Court of Appeals for

313
00:21:51,480 --> 00:21:56,119
Speaker 2: the Sixth Circuit. Hernandorfer directs the Strategic Litigation Unit for

314
00:21:56,160 --> 00:22:01,200
Speaker 2: the Tennessee Attorney General's Office. She defended fancies near total

315
00:22:01,240 --> 00:22:06,840
Speaker 2: ban on abortions in instances when life threatening pregnancy complications arise,

316
00:22:07,359 --> 00:22:12,040
Speaker 2: and challenged a Biden era rule prohibiting discrimination against transgender

317
00:22:12,119 --> 00:22:16,000
Speaker 2: students under Title nine. Joining me is an expert in

318
00:22:16,080 --> 00:22:19,600
Speaker 2: the judiciary. Carl Tobias, a professor at the University of

319
00:22:19,680 --> 00:22:24,000
Speaker 2: Richmond School of Law. Carl tell us about Hernandorfer and

320
00:22:24,040 --> 00:22:25,240
Speaker 2: whose seat she's taking.

321
00:22:26,200 --> 00:22:33,960
Speaker 3: She will take a vacancy created by a Democratic appointee

322
00:22:34,760 --> 00:22:39,200
Speaker 3: named Jane stranch and it was the seat that Carla

323
00:22:39,320 --> 00:22:42,439
Speaker 3: Campbell was nominated for by Biden, but was one of

324
00:22:42,440 --> 00:22:46,679
Speaker 3: the four people at the appellate level who did not

325
00:22:47,040 --> 00:22:50,520
Speaker 3: receive a final confirmation vote because of the deal that

326
00:22:50,680 --> 00:22:54,960
Speaker 3: was struck in November by Democrats and Republicans, and so

327
00:22:55,520 --> 00:23:01,520
Speaker 3: that's the seat that Hermandorfer will be nominated who the

328
00:23:01,560 --> 00:23:07,080
Speaker 3: President announced the nomination after eleven PM on Thursday on

329
00:23:07,240 --> 00:23:11,240
Speaker 3: Truth Social and there's nothing on the White House website yet,

330
00:23:11,680 --> 00:23:15,320
Speaker 3: so her name has not gone to the Senate. Her

331
00:23:15,359 --> 00:23:23,480
Speaker 3: background is very strong. She was a clerk for Justice

332
00:23:23,520 --> 00:23:27,960
Speaker 3: Brett Cavanaugh when he was on the DC Circuit, Justice

333
00:23:28,000 --> 00:23:32,800
Speaker 3: Samuel Alito on the Supreme Court, and then Justice Amy

334
00:23:33,200 --> 00:23:37,960
Speaker 3: Coney Barrett on the Supreme Court. She also worked at

335
00:23:38,119 --> 00:23:42,639
Speaker 3: Williams and Connolly, which is a highly respected Washington law firm,

336
00:23:42,840 --> 00:23:47,280
Speaker 3: and recently she has been the director of strategic litigation

337
00:23:47,640 --> 00:23:52,480
Speaker 3: in the office of Tennessee Attorney General Jonathan Scurmetti and

338
00:23:52,880 --> 00:24:00,240
Speaker 3: litigated some cases involving abortion and transgender people. And she

339
00:24:00,320 --> 00:24:03,880
Speaker 3: also is quite young, I think thirty seven or thirty eight.

340
00:24:04,520 --> 00:24:07,080
Speaker 2: Yeah. I was going to say if she just recently

341
00:24:07,240 --> 00:24:10,800
Speaker 2: clerked for Supreme Court justices, she doesn't have that much

342
00:24:11,200 --> 00:24:13,760
Speaker 2: real world experience.

343
00:24:13,680 --> 00:24:17,760
Speaker 3: That's right. But she has the experience, of course at

344
00:24:18,000 --> 00:24:23,760
Speaker 3: Williams and Conley, and the experience with the Tennessee Attorney

345
00:24:23,800 --> 00:24:28,760
Speaker 3: General's Office, and so has done I think some significant

346
00:24:28,880 --> 00:24:32,320
Speaker 3: appellate type work, which is what she'll be doing on

347
00:24:32,359 --> 00:24:33,080
Speaker 3: the sixth Circuit.

348
00:24:33,400 --> 00:24:36,199
Speaker 2: Is she one of the youngest people to be nominated

349
00:24:36,240 --> 00:24:37,520
Speaker 2: for an appellate court?

350
00:24:37,640 --> 00:24:43,720
Speaker 3: Yes. The only one I can remember is Allison Rushing

351
00:24:44,119 --> 00:24:48,840
Speaker 3: on the fourth Circuit, and I believe she was thirty

352
00:24:48,920 --> 00:24:52,000
Speaker 3: six and was working for DC Ferm at the time,

353
00:24:52,680 --> 00:24:57,400
Speaker 3: and so she was I think the youngest appellate nominee

354
00:24:57,440 --> 00:24:58,440
Speaker 3: from the first term.

355
00:24:58,680 --> 00:25:06,639
Speaker 2: Trump continues his first administration's practice of nominating young judges

356
00:25:06,760 --> 00:25:11,840
Speaker 2: who also have you know, have shown allegiance to conservative causes.

357
00:25:12,680 --> 00:25:14,520
Speaker 3: Well, I think that's right. I mean, that's what she's

358
00:25:14,600 --> 00:25:18,399
Speaker 3: doing in the Tennessee Attorney General's Office to be sure.

359
00:25:18,800 --> 00:25:24,400
Speaker 3: At Williams Connelly, that's the firms it's representing Perkins Coe

360
00:25:24,440 --> 00:25:28,959
Speaker 3: in battling the executive order. So they deserve a lot

361
00:25:28,960 --> 00:25:32,119
Speaker 3: of credit for that representation because it's not popular in

362
00:25:32,160 --> 00:25:36,159
Speaker 3: the White House. In any event, I think that it

363
00:25:36,240 --> 00:25:39,480
Speaker 3: is true in the Tennessee Attorney General's Office. Being the

364
00:25:39,520 --> 00:25:42,680
Speaker 3: director of Strategic Litigation, she would be and has been

365
00:25:42,720 --> 00:25:47,360
Speaker 3: involved in, I think abortion litigation as well as litigation

366
00:25:47,480 --> 00:25:51,520
Speaker 3: involving transgender people. That's all valuable experience, and I think

367
00:25:51,600 --> 00:25:55,719
Speaker 3: that she eventually would be chief judge of the Sixth Circuit,

368
00:25:56,160 --> 00:25:58,800
Speaker 3: you know, if she stays there. But I think the

369
00:25:58,840 --> 00:26:02,600
Speaker 3: notion is to have people who are quite strong in

370
00:26:02,640 --> 00:26:05,760
Speaker 3: the conservative legal movement. She looks more like a federalist

371
00:26:05,840 --> 00:26:09,520
Speaker 3: society type pick from Trump one point zero, but it's

372
00:26:09,520 --> 00:26:10,200
Speaker 3: just not clear.

373
00:26:10,600 --> 00:26:14,560
Speaker 2: During his first term he picked a lot of ideological

374
00:26:14,720 --> 00:26:19,600
Speaker 2: true believers, you know, in conservative causes. Does it appear

375
00:26:19,640 --> 00:26:23,320
Speaker 2: that she's one of those or that's where he's going again.

376
00:26:24,440 --> 00:26:28,000
Speaker 3: Well, he may, but he has many fewer this time

377
00:26:28,680 --> 00:26:32,000
Speaker 3: in terms of appellate vacancies, are only six three current

378
00:26:32,119 --> 00:26:36,119
Speaker 3: and three future. But she certainly has been involved in

379
00:26:36,240 --> 00:26:40,280
Speaker 3: those cases I described, but it's hard to type person

380
00:26:40,480 --> 00:26:44,040
Speaker 3: in an ideologue. I don't think we have enough on

381
00:26:44,080 --> 00:26:47,600
Speaker 3: her record. I'm sure the Ener Judiciary Committee will scrutinize

382
00:26:47,640 --> 00:26:50,600
Speaker 3: her closely, and she's likely to be one of the

383
00:26:50,600 --> 00:26:53,320
Speaker 3: first people, you know, to have a hearing, I would think.

384
00:26:53,680 --> 00:26:53,840
Speaker 1: So.

385
00:26:53,920 --> 00:26:57,280
Speaker 2: Since this is for a democratic seat what was formerly

386
00:26:57,280 --> 00:27:00,399
Speaker 2: a Democratic seat? What does this mean for the alls

387
00:27:00,480 --> 00:27:01,560
Speaker 2: on the sixth Circuit?

388
00:27:02,040 --> 00:27:04,800
Speaker 3: There are already more appointees of Republican presidents than there

389
00:27:04,840 --> 00:27:10,280
Speaker 3: are Democratic presidents. So to that extent, people are looking

390
00:27:10,320 --> 00:27:16,920
Speaker 3: at which party appointed the particular person. It adds another Republican,

391
00:27:16,960 --> 00:27:20,560
Speaker 3: but I don't think it's that close on that court,

392
00:27:21,000 --> 00:27:24,239
Speaker 3: it won't make a strong difference. But it is an

393
00:27:24,240 --> 00:27:27,200
Speaker 3: important vacancy, you know, when you only have six around

394
00:27:27,240 --> 00:27:29,600
Speaker 3: the country, that's critical to fill.

395
00:27:30,320 --> 00:27:33,560
Speaker 2: So the other repellent openings are they to fill seats

396
00:27:33,640 --> 00:27:37,960
Speaker 2: vacated by Republican appointees or Democratic appointees.

397
00:27:38,280 --> 00:27:41,000
Speaker 3: Well, that's a good question. Remember, as I said, there

398
00:27:41,000 --> 00:27:47,600
Speaker 3: were four vacancies that had appellet nominees from Biden who

399
00:27:47,640 --> 00:27:50,800
Speaker 3: were not confirmed as part of that deal, and so

400
00:27:51,000 --> 00:27:56,000
Speaker 3: one was in Maine, one was in New Jersey and

401
00:27:56,280 --> 00:28:00,159
Speaker 3: one was in Delaware. Those are the current vacancy and

402
00:28:00,320 --> 00:28:03,879
Speaker 3: that will fall to Trump to fill. And then there

403
00:28:03,880 --> 00:28:08,160
Speaker 3: are three future vacancies, and the Tennessee one is considered

404
00:28:08,160 --> 00:28:12,520
Speaker 3: a future one. Hermanndorffer will fill that. And then in

405
00:28:12,600 --> 00:28:17,440
Speaker 3: Wisconsin the chief judges stepping down on the seventh Circuit,

406
00:28:18,200 --> 00:28:21,439
Speaker 3: and in California one of the judges out there on

407
00:28:21,480 --> 00:28:24,320
Speaker 3: the ninth Circuit is stepping down. So that's what we have.

408
00:28:24,840 --> 00:28:27,680
Speaker 3: The future ones will be this year later this year.

409
00:28:27,840 --> 00:28:29,720
Speaker 2: And the future ones are Republican.

410
00:28:30,760 --> 00:28:35,040
Speaker 3: Yes, yes, we're Republican appointees, as I remember both, I

411
00:28:35,160 --> 00:28:38,760
Speaker 3: think George W. Bush appointees.

412
00:28:39,000 --> 00:28:41,880
Speaker 2: Does it appear like the Democratic judges are going to

413
00:28:41,880 --> 00:28:46,040
Speaker 2: try to hold on and not retire during his term?

414
00:28:46,400 --> 00:28:49,200
Speaker 3: You know, that's for them to decide. It's hard to say,

415
00:28:49,280 --> 00:28:54,480
Speaker 3: but they have not been doing so and didn't even

416
00:28:54,520 --> 00:28:57,640
Speaker 3: do so so much during the Biden years. But I

417
00:28:57,680 --> 00:29:02,640
Speaker 3: think they're probably more Republican appointees who are eligible under

418
00:29:02,680 --> 00:29:05,960
Speaker 3: the rule of eighty sixty five years old and fifteen

419
00:29:06,040 --> 00:29:09,880
Speaker 3: years of service, but very few of them so far

420
00:29:10,240 --> 00:29:13,920
Speaker 3: have indicated they're going to take senior status. So we'll see,

421
00:29:14,880 --> 00:29:18,080
Speaker 3: but there is time depending on what happens with the midterms.

422
00:29:18,400 --> 00:29:22,480
Speaker 3: If Democrats were to come back into office, that opportunity

423
00:29:22,520 --> 00:29:26,920
Speaker 3: would to easily confirm them might go away. And so

424
00:29:27,080 --> 00:29:30,760
Speaker 3: my guess is that'll be a high priority for the

425
00:29:30,800 --> 00:29:36,320
Speaker 3: Trump administration to fill all those appellate vacancies before the

426
00:29:36,440 --> 00:29:37,480
Speaker 3: end of twenty twenty two.

427
00:29:37,880 --> 00:29:41,560
Speaker 2: And what about the lower federal courts, the district courts.

428
00:29:41,760 --> 00:29:46,800
Speaker 3: You've got sixty vacancies if you count current in future.

429
00:29:47,280 --> 00:29:50,680
Speaker 3: I think the most important thing is that the vast

430
00:29:50,720 --> 00:29:53,800
Speaker 3: majority of them are in red states. And so I

431
00:29:53,840 --> 00:29:56,280
Speaker 3: think that Trump will do exactly what it did in

432
00:29:56,400 --> 00:30:01,160
Speaker 3: one point oh, and that is try to every one

433
00:30:01,200 --> 00:30:06,760
Speaker 3: of the ones in red states and then turned to

434
00:30:06,840 --> 00:30:11,680
Speaker 3: the blue states and emphasize the six appelate first, and

435
00:30:11,800 --> 00:30:16,560
Speaker 3: then go to the forty five or more district ones

436
00:30:17,040 --> 00:30:20,400
Speaker 3: and try to fill those. And only when he has

437
00:30:20,480 --> 00:30:24,160
Speaker 3: to and has exhausted the red state ones, I think

438
00:30:24,200 --> 00:30:27,120
Speaker 3: will he named ones that are blue state ones with

439
00:30:27,160 --> 00:30:30,560
Speaker 3: two Democratic senators. So I think that's the way it'll go.

440
00:30:30,680 --> 00:30:33,880
Speaker 3: And Biden did something very similar during his time. He

441
00:30:33,920 --> 00:30:37,320
Speaker 3: filled the blue state ones. And the other interesting statistic

442
00:30:37,600 --> 00:30:42,080
Speaker 3: is in terms of emergencies. Out of twenty two emergencies,

443
00:30:42,160 --> 00:30:46,000
Speaker 3: twenty one are at the district level are in red states,

444
00:30:46,400 --> 00:30:48,080
Speaker 3: and so those really need to be filled.

445
00:30:48,880 --> 00:30:52,920
Speaker 2: In the first administration, it was sort of orchestrated by

446
00:30:52,960 --> 00:30:57,000
Speaker 2: the Federalist Society and it went off, you know, almost

447
00:30:57,000 --> 00:30:59,760
Speaker 2: without a hitch. Are the same people in charge this

448
00:31:00,200 --> 00:31:01,120
Speaker 2: time around.

449
00:31:01,720 --> 00:31:04,760
Speaker 3: That's less clear. I think Leonard Leo, who is the

450
00:31:05,040 --> 00:31:11,520
Speaker 3: executive vice president of that group, was the outside advisor

451
00:31:11,680 --> 00:31:15,720
Speaker 3: for the president, and I think did tender a whole

452
00:31:15,800 --> 00:31:19,360
Speaker 3: number of names of people who then were nominated and confirmed.

453
00:31:20,240 --> 00:31:23,880
Speaker 3: I don't believe that's the case. Now. There's a new

454
00:31:23,960 --> 00:31:28,520
Speaker 3: White House Council, of course, and I think that from

455
00:31:28,520 --> 00:31:31,880
Speaker 3: what I can tell, Mike Davis at the Article three

456
00:31:31,920 --> 00:31:36,600
Speaker 3: project is the outside person who is having some influence.

457
00:31:36,640 --> 00:31:40,240
Speaker 3: And he wrote an op ed in Fox News about

458
00:31:40,240 --> 00:31:43,880
Speaker 3: Hermanndorffer just the other day when she was nominated, which

459
00:31:43,920 --> 00:31:47,840
Speaker 3: was very complimentary of her. And so we'll see. Though

460
00:31:47,920 --> 00:31:52,600
Speaker 3: she looks more like a Federalist Society type of person.

461
00:31:52,720 --> 00:31:56,960
Speaker 3: She's worked with them and been on i think panels

462
00:31:57,760 --> 00:32:01,720
Speaker 3: at their convention and that type. So it's not clear yet,

463
00:32:02,040 --> 00:32:06,200
Speaker 3: but I think Davis and his group have a lot

464
00:32:06,240 --> 00:32:09,880
Speaker 3: of influence, and there are others as well, And I

465
00:32:09,920 --> 00:32:13,400
Speaker 3: don't think one nominee tells you a whole lot, because

466
00:32:13,520 --> 00:32:17,640
Speaker 3: I think her conservative credentials are quite clear, and she's

467
00:32:18,040 --> 00:32:21,840
Speaker 3: taken on some very difficult and controversial cases in the

468
00:32:21,880 --> 00:32:26,640
Speaker 3: Tennessee Attorney General's Office, so I think that she will

469
00:32:27,480 --> 00:32:30,680
Speaker 3: make a strong nominee. And again, that looks more like

470
00:32:30,720 --> 00:32:34,560
Speaker 3: a federal society person than than a MAGA judge, if

471
00:32:34,600 --> 00:32:35,000
Speaker 3: you will.

472
00:32:35,600 --> 00:32:38,800
Speaker 2: Let's turn to concerns over the growing number of federal

473
00:32:38,920 --> 00:32:43,960
Speaker 2: judges who are facing threats of violence, and they include

474
00:32:44,240 --> 00:32:48,560
Speaker 2: federal Judge James Boseburg and federal Judge John McConnell, who

475
00:32:49,160 --> 00:32:53,720
Speaker 2: ruled against the Trump administration. Do you see this as

476
00:32:53,880 --> 00:32:57,640
Speaker 2: an intimidation campaign against federal judges.

477
00:32:58,840 --> 00:33:03,040
Speaker 3: Well, there are concerns about that in terms of safety

478
00:33:04,240 --> 00:33:09,720
Speaker 3: for the judges who rule in certain ways or for

479
00:33:09,760 --> 00:33:13,320
Speaker 3: their families, and apparently there have been some threats. They've

480
00:33:13,320 --> 00:33:17,680
Speaker 3: tried to step up the security for judges who have

481
00:33:17,800 --> 00:33:21,240
Speaker 3: been threatened. But it is a real concern, and members

482
00:33:21,240 --> 00:33:23,800
Speaker 3: of Congress are concerned, and of course members of the

483
00:33:23,840 --> 00:33:26,840
Speaker 3: judiciary are concerned, and I think it is getting a

484
00:33:26,840 --> 00:33:30,440
Speaker 3: lot of attention both in the judiciary and in Congress.

485
00:33:31,280 --> 00:33:36,680
Speaker 3: So hopefully that will lessen those kinds of threats. But

486
00:33:36,760 --> 00:33:41,520
Speaker 3: that's very unfortunate, and hopefully the kind of rhetoric that

487
00:33:41,680 --> 00:33:44,880
Speaker 3: has been leveled a district judges would be tamped down.

488
00:33:45,320 --> 00:33:45,480
Speaker 1: Well.

489
00:33:45,520 --> 00:33:50,600
Speaker 2: Even Justice Katanji Brown Jackson denounced what she called relentless

490
00:33:50,640 --> 00:33:54,400
Speaker 2: attacks on the judiciary in a speech last week.

491
00:33:55,160 --> 00:33:58,320
Speaker 3: Yes, and she was very strong and clear about that,

492
00:33:58,600 --> 00:34:00,760
Speaker 3: as have been a number of other judge just for example,

493
00:34:00,840 --> 00:34:05,320
Speaker 3: Judge Bates on the District of Columbia District Court just

494
00:34:05,360 --> 00:34:09,319
Speaker 3: the other day made the same arguments, and others have

495
00:34:09,640 --> 00:34:12,760
Speaker 3: around the country. So there's a lot of concern about

496
00:34:12,840 --> 00:34:16,520
Speaker 3: that being voiced by judges and members of Congress, and

497
00:34:16,640 --> 00:34:21,920
Speaker 3: hopefully the rhetoric will seaks by way of attacking judges

498
00:34:22,080 --> 00:34:22,920
Speaker 3: for their ruling.

499
00:34:23,239 --> 00:34:26,360
Speaker 2: Thanks Carl. That's Professor Carl Tobias of the University of

500
00:34:26,440 --> 00:34:29,680
Speaker 2: Richmond Law School, And that's it for this edition of

501
00:34:29,680 --> 00:34:32,360
Speaker 2: The Bloomberg Law Show. Remember you can always get the

502
00:34:32,400 --> 00:34:35,640
Speaker 2: latest legal news on our Bloomberg Law Podcast. You can

503
00:34:35,640 --> 00:34:39,879
Speaker 2: find them on Apple Podcasts, Spotify, and at www dot

504
00:34:39,920 --> 00:34:44,080
Speaker 2: Bloomberg dot com, Slash podcast, Slash Law, and remember to

505
00:34:44,120 --> 00:34:47,200
Speaker 2: tune into the Bloomberg Law Show every weeknight at ten

506
00:34:47,239 --> 00:34:51,000
Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening

507
00:34:51,120 --> 00:34:51,759
Speaker 2: to Bloomberg