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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. There are conflicting

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Speaker 1: reports today about whether Deputy Attorney General Rod rosen Stein

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Speaker 1: is considering resigning his post. Now. White House spokeswoman Sarah

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Speaker 1: Sanders says that President Trump will meet with Rosenstein on

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Speaker 1: Thursday when he returns to d C from the U

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Speaker 1: n General Assembly meeting in New York, joining us as

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Speaker 1: William Banks, professor at Syracuse University Law School. Bill Sanders

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Speaker 1: also said that Rosenstein and Trump had had an extended

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Speaker 1: conversation to discuss the recent news stories. I'd like to

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Speaker 1: have heard that conversation. What's your reaction. Well, this is,

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Speaker 1: you know, the the newsday is quite powerful. I can't

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Speaker 1: we can't really well have a Saturday night massacre on

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Speaker 1: a Monday morning. So maybe that's why it was it

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Speaker 1: was put off. But it's a it's a series of

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Speaker 1: dramatic events. It's certainly uh, you know, the what was

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Speaker 1: revealed by the New York Times on the weekend about

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Speaker 1: what Rosenstein had done more than a year ago. It

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Speaker 1: was a real bombshell, and I think it it's certainly

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Speaker 1: helped the president, at least optically. It helped the president

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Speaker 1: distract from other things that are going on, and also

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Speaker 1: to lend some credibility to his longstanding beef that the

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Speaker 1: investigation is painted or politically biased. Whether there's more to

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Speaker 1: it or whether he actually fires Rosenstein, you know, remains

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Speaker 1: to be seen. All right, Let's let's just uh go

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Speaker 1: behind the behind the story here. Rosenstein allegedly, according to

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Speaker 1: The New York Times, discussed in the spring of either

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Speaker 1: wire tapping Trump in a conversation or removing him from

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Speaker 1: office via amendment. And then, of course he denied that,

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Speaker 1: categorically denied that, and some people there had said that

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Speaker 1: it was sarcastically meant. But let's do this as a hypothetical.

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Speaker 1: If the allegations were true, Suppose Rosenstein sees a White

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Speaker 1: House in disarray or another deputy Attorney general does, and

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Speaker 1: there's danger to the country. Is it a derogation of

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Speaker 1: his duty to talk about the amendment? I would not,

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Speaker 1: you know, I don't think if the derogation was duty,

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Speaker 1: but of course the amendments and can vote by the

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Speaker 1: deputy Attorney general. It's been vote by majority of a

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Speaker 1: cabinet and with the ascent of the Vice Press the

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Speaker 1: United States, and none of whom, of course were in

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Speaker 1: the room when one Rosenstein allegendly was talking about that possibility.

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Speaker 1: So now, um, what happens if Rosenstein resigns as opposed

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Speaker 1: to is fired, because we know that a lot of

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Speaker 1: Senators have put a line in the sand as far

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Speaker 1: as if Trump fires him, that will send us into

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Speaker 1: a constitutional crisis and something might be done. But what

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Speaker 1: happens if he resigns, Well, it does avert that situation,

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Speaker 1: and again it greatly strengthens the hand of the president.

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Speaker 1: It certainly it doesn't directly impact Mr Mueller or investigation.

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Speaker 1: I suppose that's an important thing to keep in mind.

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Speaker 1: You know, the Attorney General is supervising the Mueller investigation

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Speaker 1: because of the recusal of the Attorney General, but the

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Speaker 1: investigation goes on. Of course Mr Moller can't be directly

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Speaker 1: fired but president, so it would be up to whoever

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Speaker 1: the next deputy Attorney General is to supervise the investigation,

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Speaker 1: and that he or she would have to decide what

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Speaker 1: kind of supervisor he or she's going to be. In

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Speaker 1: the meantime, No, Francisco, the Solicitor General, is in line,

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Speaker 1: but there are some indications that he might be conflicted

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Speaker 1: because of his law firms relationship, having done Trump work

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Speaker 1: on Trump matters. That seems kind of the same thing. Yeah,

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Speaker 1: that is a conflict that could stand in the way,

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Speaker 1: although it could be disavowed. You know, there could be

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Speaker 1: you know, clarifications spelled out by the firm or uh,

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Speaker 1: Francisco acknowledging it, but suggesting that he was never involved

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Speaker 1: in any of those matters and hasn't hasn't any interest

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Speaker 1: in Who would be next in line. I believe it's

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Speaker 1: the head of the Office of Legal Council next, who

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Speaker 1: was a man in Myers. I don't know him. Uh,

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Speaker 1: there is a chain. But of course it would also

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Speaker 1: be possible for the president quickly to a point someone

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Speaker 1: and have that person go through the Senate proceeding. All

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Speaker 1: of this is you know, as you know, just a

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Speaker 1: few weeks from the term elections, and presumably at in

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Speaker 1: the eleventh hour of the Mueller investigation. So there's a

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Speaker 1: tremendous amount of momentum towards allowing things to play out

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Speaker 1: as they are. Former Acting FBI Director Andrew McCabe, and

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Speaker 1: of course it was his notes supposedly that were viewed

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Speaker 1: in the New York Times article. He says that if

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Speaker 1: Rod Rosenstein leaves his post, it puts the Special Counsel's

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Speaker 1: Russia investigation at risk. Do you agree with that? Well,

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Speaker 1: only at risk in the same sense that it has

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Speaker 1: been from the beginning. If the Trump were Mr Trump

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Speaker 1: were to try something like the Saturday Night massacred to

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Speaker 1: continued to dismiss people until he found one who was

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Speaker 1: willing to take on Mr Muller, you know, something cataclysmic

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Speaker 1: of that nature could have happened again. You know, I think,

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Speaker 1: because the investigation is probably nearly at its end, because

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Speaker 1: the elections are so also just around the band, I

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Speaker 1: think there's going to be a lot of momentum toward

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Speaker 1: allowing the process to be completed. And then, you know,

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Speaker 1: the critical question then will be what happens with the report.

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Speaker 1: One of the risks is that a new Deputy Attorney

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Speaker 1: General could decide simply to sit on the report that

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Speaker 1: not make it public in any case, and uh leave

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Speaker 1: us all wondering what Mr Mueller found. Yeah, I know

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Speaker 1: that some of the attorneys who worked on the one

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Speaker 1: of the other investigations suggested that the grand jury could

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Speaker 1: could do something in that respect and request that the

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Speaker 1: judge to the judge that it makes it public. But

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Speaker 1: it will be another down another avenue there that will

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Speaker 1: have to be questioning over and over again. Thanks so much, Bill,

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Speaker 1: It's always playful to have you on Jealous. As a

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Speaker 1: Senate Judiciary committee prepares to hear testimony from a woman

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Speaker 1: accusing Kavanaugh of sexual misconduct, Democrats are investigating another incident

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Speaker 1: involving Kavanaugh, this time during his time at Yale University.

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Speaker 1: Speaking on Fox News Sunday, Senator Lindsey Graham said he

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Speaker 1: wouldn't ruin Kavanaugh's life based on accusations. I don't know

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Speaker 1: when it happened, I don't know where it happened, and

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Speaker 1: everybody named in regard to being there said it didn't happen.

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Speaker 1: I'm just being honest unless there's something more. No, I'm

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Speaker 1: not going to ruin uh Judge Kavanaugh's life over this,

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Speaker 1: but she should come forward, she should have her say

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Speaker 1: she will be respectfully treated. Joining me is Steve Sanders,

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Speaker 1: a professor at Indiana University Marish School of Law. So, Steve,

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Speaker 1: what's your reaction to Senator Graham's statement. Let her come forward,

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Speaker 1: but unless there's something else, I'm not going to consider it. Well.

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Speaker 1: I think Senator Graham's um uh characterization points up the

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Speaker 1: real difficulty in the way this hearing is apparently going

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Speaker 1: to play out, which is essentially it's going to be

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Speaker 1: a matter off he said. She said, Um. Dr Blazie

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Speaker 1: will give her recollection and answer questions and make her allegations.

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Speaker 1: Judge Kavanaugh will respond to those. Um. Neither apparently has anything,

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Speaker 1: you know, that would normally be considered sort of hard

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Speaker 1: evidence to support them. And so in the end, it's

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Speaker 1: going to come down to who the senators and the

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Speaker 1: rest of the country watching the proceedings believe, and and

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Speaker 1: that makes it difficult. UM. I think the one thing

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Speaker 1: where one thing I would note in response to Senator

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Speaker 1: Graham is one way to avoid that would be to

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Speaker 1: subpoena additional witnesses, to subpoena other people who were allegedly

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Speaker 1: at the party, including Judge Kavanaugh's friend UM, Mr Judge

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Speaker 1: who Um has written about his high school exploits and

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Speaker 1: drinking and so forth. Um. You know, now these people

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Speaker 1: have said in statements that they have no recollection, but

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Speaker 1: that's not the same thing as either answering questions to

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Speaker 1: an FBI agent um, which the Senate has decided not

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Speaker 1: to go forward with, or answering questions under oath in

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Speaker 1: a Senate committee proceeding. If we if we had those

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Speaker 1: additional data points, that additional information questions, UH, scrutiny of

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Speaker 1: their credibility, um, it might help tip the balance as

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Speaker 1: to who's really telling the truth in this case, Steve,

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Speaker 1: the Anita Hill hearings have been criticized over the years,

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Speaker 1: and they were four days long, and they included four

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Speaker 1: corroborating witnesses plus an FBI investigation. So is there really

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Speaker 1: any point in having this kind of a he said,

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Speaker 1: She said hearing, Well, I think there isn't There is

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Speaker 1: a point if you believe in the principle that the

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Speaker 1: senators here aren't the only audience. That's a reasonable conclusion

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Speaker 1: that most of the senators have have had their minds

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Speaker 1: made up, and probably nothing that happens that the hearing

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Speaker 1: is going to change that. I think there may be

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Speaker 1: some exception to that with uh, say, especially Senator Susan

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Speaker 1: Collins of Maine. And and there are other Senators who

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Speaker 1: are going to have to vote for this who may

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Speaker 1: not have their minds entirely made up yet, such as

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Speaker 1: Lisa Murkowski of Alaska who serve in the larger Senate.

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Speaker 1: But I think this is the Supreme Court, this is

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Speaker 1: public business, and so the audience here is also for

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Speaker 1: the American people, and those who watch the hearings will

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Speaker 1: decide for themselves who is credible, who they believe, and

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Speaker 1: if they do their duty as citizens, they will act

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Speaker 1: accordingly in the way they choose to be involved in

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Speaker 1: politics and ultimately how they cast their votes in future

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Speaker 1: elections if they believe or not that the Senate is

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Speaker 1: doing its job in adequately vetting a nominee for a

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Speaker 1: lifetime appointment to the Supreme Court. Steve, you handle constitutional law.

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Speaker 1: You're an expert in that area. So let me ask

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Speaker 1: you about Clarence Thomas. Has there been a shadow over

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Speaker 1: Clarence Thomas because of the accusations of Anita Hill and

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Speaker 1: would the same be true of Kavanaugh. You know, I

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Speaker 1: don't think that it has in any meaningful or detectable way. Um,

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Speaker 1: affected the way Justice Thomas does his job, or the

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Speaker 1: way litigants present arguments that they know Justice Thomas is

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Speaker 1: going to hear. Um. You know, it's that has been

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Speaker 1: sort of overshadowed by other, let's say, quirks that Justice

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Speaker 1: Thomas has. It is virtually never speaking at oral argument,

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Speaker 1: for example, and clinging to a sort of jurisprudential style

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Speaker 1: that most of the other court doesn't believe with and

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Speaker 1: doesn't go along with. I think the potential ramifications for

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Speaker 1: Brett Kavanaugh if he is confirmed to the Supreme Court

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Speaker 1: might be greater because of the time we're in a

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Speaker 1: combination of the me too movement, some indications that the Democrats,

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Speaker 1: at least one prominent Democrats shall than white House has

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Speaker 1: indicated that um there this may not be the end

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Speaker 1: of it, that if the Democrats retake the Senate, they

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Speaker 1: may reopen the matter and do what they think is

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Speaker 1: a more thorough investigation. Um, we'll see. There's talk this

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Speaker 1: morning of the possibility, although they seem a bit thin

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Speaker 1: at this point of other women coming forward with similar

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Speaker 1: allegations against Mr Kavanaugh. So I think it's hard to predict.

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Speaker 1: In the short term. I think there are plenty. There

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Speaker 1: will be plenty of people in our politicized environment where

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Speaker 1: the Supreme Court seems to be more salient in people's minds,

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Speaker 1: who will be eager not to let people forget um

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Speaker 1: the cloud that has over Judge Kavanaugh if these allegations

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Speaker 1: are not thoroughly disposed of or thoroughly discredited. Thank you

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Speaker 1: so much, as always, Steve. That's Steve Standers. He's a

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Speaker 1: professor at Indiana University maur School of Law. Thanks for

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Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and

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Speaker 1: listen to the show on Apple podcast, SoundCloud, and on

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Speaker 1: Bloomberg dot com slash podcast. I'm June Brosso. This is

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Speaker 1: Bloomberg m