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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: Senator Bob Menendez says he'll appeal his conviction on sixteen

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Speaker 1: counts of bribery, extortion, fraud, obstruction of justice, and acting

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Speaker 1: as a foreign agent of Egypt. The two month corruption

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Speaker 1: trial focused on thirteen goal bars, nearly five hundred thousand

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Speaker 1: dollars in cash, and a Mercedes Benz seized at his home.

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Speaker 1: What didn't get as much attention was the unusual and

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Speaker 1: aggressive move by federal prosecutors to charge Menendez with obstruction,

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Speaker 1: based on a presentation made by his former lawyer to

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Speaker 1: prosecutors before his indictment. Joining me is former federal prosecutor

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Speaker 1: Ariel Newman, a partner at Bird Marilla. How common is

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Speaker 1: it for defense attorneys to be meeting with prosecutors to

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Speaker 1: try to talk them out of bringing charges.

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Speaker 2: So in this case, we're talking about pre indictment, meaning

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Speaker 2: for the defendant is charged, and these meetings are very

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Speaker 2: very common, especially in the light collar context where we're

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Speaker 2: talking about fraud crimes of some sort. The meetings take

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Speaker 2: essentially two forms. One is what we call a pre

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Speaker 2: indictment pitch meeting, where we are going in and making

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Speaker 2: the case to the prosecutors about why they shouldn't pursue

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Speaker 2: a case against our client. And it may be legal arguments,

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Speaker 2: it may be factual arguments, but we are trying to

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Speaker 2: convince them that they don't have a case, or for

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Speaker 2: whatever reason, they shouldn't pursue a case that they think

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Speaker 2: they have. The other kind of pre indictment meeting is

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Speaker 2: what we call an attorney proffer. This is where essentially

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Speaker 2: you've made the decision or your client has made the

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Speaker 2: decision that they're going to cooperate with the government's investigation,

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Speaker 2: potentially provide testimony against other people, And so before you

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Speaker 2: have them sit down with the government, you want to

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Speaker 2: preview what they're going to say, and there's a discussion

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Speaker 2: if the government thinks there's any problems with it, if

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Speaker 2: they think that certain things may not be truthful. You

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Speaker 2: can have that discussion before you sit your client down

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Speaker 2: and suddenly everybody is yelling that they're lying and not

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Speaker 2: being forthcoming.

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Speaker 1: Are these meetings usually considered confidential? Can the prosecutors use

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Speaker 1: the information that's given to them at trial.

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Speaker 2: Let's focus on the pre indictment pitch meetings. The efforts

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Speaker 2: to convince the prosecutors that they shouldn't pursue the case,

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Speaker 2: because that's what the Menendez case was. Usually there is

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Speaker 2: an agreement or there's a request for an agreement by

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Speaker 2: the defense lawyer that these are protected as settlement conversations.

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Speaker 2: There's a sederal rule four row eight rule of evidence

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Speaker 2: that says settlement communications can't be admitted for almost and

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Speaker 2: that's an important almost almost any purpose at trial. And

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Speaker 2: so generally the expectation is that these are going to

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Speaker 2: be largely confidential, and then the caveat to that is

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Speaker 2: sometimes there is an agent, that's the an FBI agent

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Speaker 2: who is taking notes during the meeting. If that's happening,

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Speaker 2: you tend to know that it may not be as

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Speaker 2: confidential as you hope. Also, I mean, I've had it

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Speaker 2: where you know, it was a surprise to me, but

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Speaker 2: now I've become cognizant of the risk. They write a

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Speaker 2: report and then they produce it in discovery. If the

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Speaker 2: government goes ahead and charges your clients anyway, now it's

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Speaker 2: a multi defend in case. Right, there's other people who

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Speaker 2: are charged in the case along with your client, and

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Speaker 2: suddenly they are seeing a report about what you said

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Speaker 2: during that meeting where you were trying to convince the

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Speaker 2: government not to charge your client. In the case I'm

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Speaker 2: thinking of, it was everybody else's fault, not our guy's fault.

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Speaker 2: It certainly wasn't helpful to relationships among people as we

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Speaker 2: went forward with the case.

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Speaker 1: I mean, was that in a case where you thought

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Speaker 1: what you were saying was not to be used.

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Speaker 2: We thought it was a confidential settlement meeting. They never

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Speaker 2: tried to introduce it at trial. But there isn't really

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Speaker 2: anything prohibiting them from doing what they did unless you

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Speaker 2: have an agreement explicitly that they won't. And I have

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Speaker 2: found more and more as I've asked for those agreements,

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Speaker 2: that prosecutors, and especially prosecutors from what we call main

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Speaker 2: Justice DOJ in DC, as opposed to the local US

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Speaker 2: Attorney's office, are less and less willing to have any

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Speaker 2: sort of agreement about what they're going to do with

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Speaker 2: the information you provide. But what happened, you know, in

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Speaker 2: the Menendez case, Honestly, I've never heard of that before,

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Speaker 2: and everybody I've talked to has never heard of it before,

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Speaker 2: where the government or the prosecutors in that case charged

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Speaker 2: the defendant with obstruction because they claim the lawyers provided

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Speaker 2: false factual information during those meetings, which they say the

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Speaker 2: lawyers got from the defendant. You know, we are always

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Speaker 2: talking about facts during these meetings from making legal arguments,

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Speaker 2: but we're also making factual arguments. And I've never heard

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Speaker 2: of and like I say, nobody else I know I

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Speaker 2: has ever heard of the government charging obstruction based on

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Speaker 2: what you say during those meetings.

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Speaker 1: So in this case, Abby Lowell, a very well known,

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Speaker 1: highly respected attorney, white collar attorney, was the lawyer for

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Speaker 1: Senator Menendez, and he actually made a PowerPoint presentation entitled

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Speaker 1: the under Robert Menendez Presentation to US Attorney's Office, Southern

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Speaker 1: District of New York, September eleventh, twenty twenty three. Is

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Speaker 1: that unusual to have a PowerPoint presentation?

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Speaker 2: Not at all? Very common helps outline the discussion, helps

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Speaker 2: frame what you're going to be talking about, and the

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Speaker 2: hammer home the point that you want the government to

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Speaker 2: focus on. So very very common to have a presentation,

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Speaker 2: and I think important in any of these presentations that

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Speaker 2: that's all it is, is maybe an outline or maybe

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Speaker 2: just a couple bullet points on a screen, maybe a

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Speaker 2: couple pictures or citations to cases. None of us are

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Speaker 2: putting the entire context of what we're going to say

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Speaker 2: up on the screen. In fact, my practice is edit

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Speaker 2: it down to the fewest words possible so that the

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Speaker 2: PowerPoint isn't distracting and everybody's not reading it. And so

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Speaker 2: what you generally have and I can't say I have

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Speaker 2: any insight into what mister Lowell did, particularly beyond what's

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Speaker 2: been publicly reported, But what I would assume was that

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Speaker 2: he and his team had an outline where that had

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Speaker 2: the real content and the real details of what they

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Speaker 2: were going to say, and then they had a PowerPoint,

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Speaker 2: like I say, to help frame the discussion and maybe

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Speaker 2: hammer home key points along the way.

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Speaker 1: The judge allowed the government to introduce a trial pages

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Speaker 1: from that PowerPoint presentation. I mean, what about attorney client privilege,

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Speaker 1: what about attorney work product? Where were those concepts in this?

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Speaker 2: So attorney client privilege, once you share with the government,

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Speaker 2: let's say what your client said, then it's free game. Right,

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Speaker 2: you've sort of waived at least as to those statements.

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Speaker 2: Arguably the privilege depends how you say it, right. My

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Speaker 2: client told me X that's pretty much a waiver, But

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Speaker 2: the attorney work product is a different question. And again

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Speaker 2: I don't want to criticize people without knowing what was

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Speaker 2: going on in the back rooms and the back decisions.

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Speaker 2: But generally my view is that we shouldn't be giving

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Speaker 2: the government our work product defense laws. We shouldn't be

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Speaker 2: giving them our powerpoints because they can, as it appears

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Speaker 2: they did here, take it out of context. Right they

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Speaker 2: hear that. I think they put in four pages from

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Speaker 2: what was obviously a longer PowerPoint into evidence, and the defense,

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Speaker 2: if I understand it, was really stymied in their effort

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Speaker 2: to get in any of the context around them. And

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Speaker 2: it's that context where the caveats are given, where the

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Speaker 2: lawyers are making sure that it's understood that this may

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Speaker 2: not be exactly what the client said. Maybe this is

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Speaker 2: what our investigation has shown or something else. But without

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Speaker 2: that context, it becomes very difficult to get the full

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Speaker 2: picture of what was actually said during that meeting.

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Speaker 1: At the Menendez trial, did they try to get Abby

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Speaker 1: Lowell on the stand.

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Speaker 2: So there was discussion. I know that. I think actually

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Speaker 2: at some point the defense wanted to call to him

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Speaker 2: if the government was going to be allowed to put

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Speaker 2: in certain other documents, and as I understand, none of

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Speaker 2: that happened. But as I understand it, what happened at

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Speaker 2: the trial was the government put on a paralegal who

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Speaker 2: had been present to talk about and essentially authenticate these

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Speaker 2: power points, and the defense really struggled because of objections

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Speaker 2: to even get out the idea that more than what

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Speaker 2: was on the page was said during the meeting. Eventually

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Speaker 2: that did come out, but both sides, as each was

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Speaker 2: examining this witness to everybody was objecting like crazy. And

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Speaker 2: my sense at least is I wasn't in the courtroom,

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Speaker 2: but my sense from what I've read is that the

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Speaker 2: PowerPoint went in and probably not a lot more about

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Speaker 2: what happened during that meeting was presented to the jury.

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Speaker 1: In light of this, you have written for Bloomberg Law

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Speaker 1: some advice for defense lawyers in these situations. First, whether

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Speaker 1: to even have the meeting? I mean, how often are

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Speaker 1: defense lawyers successful in getting prosecutors not to charge their client?

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Speaker 1: Is it worth even having one of these meetings.

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Speaker 2: I've done it, and I know people who have had success.

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Speaker 2: I mean, it depends where the government is in the process,

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Speaker 2: and how could your facts and your arts are. It

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Speaker 2: is certainly in many cases worth making the presentations. First

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Speaker 2: of all, often in advance of that, you have discussions

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Speaker 2: with the government where you can learn more about their case,

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Speaker 2: and it gives you a chance to find out sometimes

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Speaker 2: where the holes are in your arguments as well. Right

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Speaker 2: if I come in and I make some argument, the

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Speaker 2: government says, oh, that's all well and good, but what

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Speaker 2: about XYZ And for whatever reason I didn't know about

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Speaker 2: X y Z. Well, now we're more informed going into

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Speaker 2: the next decisions about what we're going to do. The

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Speaker 2: big downside to making these presentations, traditionally, the big downside

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Speaker 2: is that you're showing your cards to some extent, You're

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Speaker 2: going in and you're making your pitch to the government.

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Speaker 2: You're arguing your facts, you're arguing your evidence, and you know,

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Speaker 2: the sort of conventional wisdom is that that allows the

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Speaker 2: government to shore up their case as well. Right, they

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Speaker 2: find out where their potential holes are and where the

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Speaker 2: weaknesses in their case are. And so it's certainly a

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Speaker 2: balancing decision in every situation of whether you do this meeting,

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Speaker 2: But in many cases it's worthwhile, and in many cases

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Speaker 2: the client is really pushing because right they're facing the

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Speaker 2: prospect of federal felony charges and this may be the

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Speaker 2: best shot they have to avoid them, or at least

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Speaker 2: they think that. And that's one of the things I

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Speaker 2: talk about, is how to resist that pressure, or whether

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Speaker 2: to resist that pressure. It's not always so easy when

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Speaker 2: the guy paying the bills is telling you do something

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Speaker 2: to stop this. Please.

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Speaker 1: Are there any magic words that you should say at

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Speaker 1: the beginning or you should have put in writing so

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Speaker 1: that you avoid a menenda situation?

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Speaker 2: Well, there are no magic words. I think that's probably

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Speaker 2: the starting place, and so you just have to be

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Speaker 2: careful and clear as you approach this. And one of

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Speaker 2: the main things is I do think it's worth getting

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Speaker 2: an agreement that these are settlement communications and that at

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Speaker 2: least gives some protection to how anything that comes out

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Speaker 2: of the meeting might be used in the future. And

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Speaker 2: a big one that I think we see here is

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Speaker 2: where at all possible not to source the information that's

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Speaker 2: in your presentation to your client, meaning not to say

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Speaker 2: my client told me x or my client says why

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Speaker 2: about this situation? And I'm not sure that's what happened here.

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Speaker 2: But once you say that, you are then really putting

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Speaker 2: the client on the line and their credibility on the line.

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Speaker 2: And so what you want to do is talk about

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Speaker 2: the fact you've done an extensive investigation, You've talked to

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Speaker 2: the people you can talk to, and looked at the

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Speaker 2: documents that you have access to, and based on that,

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Speaker 2: this is your understanding of the fact. That way, you're

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Speaker 2: not sourcing it back to somebody who in this case,

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Speaker 2: the government said, well Mnesentez and his wife Nadine told

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Speaker 2: their lawyers to go in and make these statements to

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Speaker 2: the prosecutors in order to obstruct justice. Well, it may

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Speaker 2: be that, if you can caveat it correctly, it's not

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Speaker 2: clear where the statements came from, or that the client

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Speaker 2: told you to come in and say it. Obviously, you're

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Speaker 2: not going to say the client reviewed and approved my

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Speaker 2: presentation before I came in. You're not going to get

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Speaker 2: into those communications as well, because for the same reason,

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Speaker 2: don't want to put the client on the line.

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Speaker 1: Do you take your client's word as backed or do

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Speaker 1: you do investigations You need.

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Speaker 2: To test what the clients tell you, because people's memories

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Speaker 2: are different. People, whether willfully or unintentionally, may not remember

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Speaker 2: things perfectly. There's other witnesses out there who may or

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Speaker 2: may not be saying things that are consistent with what

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Speaker 2: your client is telling you. There may be documents that

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Speaker 2: your client isn't aware of, or that your client forgot about,

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Speaker 2: and so it really is important to educate yourself before

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Speaker 2: you go in. You know, whether it's if there's other

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Speaker 2: people involved who may also be having conversations with the government,

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Speaker 2: talking to their lawyers under a common interest or joint

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Speaker 2: defense arrangement to find out what did they say, how

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Speaker 2: is it received, what are the governments saying response talking

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Speaker 2: to them about what their clients would say if their

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Speaker 2: client was presented with this version of events, what are

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Speaker 2: they going to say about it? Because the government's eventually

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Speaker 2: going to learn a lot of those facts.

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Speaker 1: We always hear about FBI nos and things, notes being

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Speaker 1: there that shouldn't be there and missing things. So what

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Speaker 1: do you do to ensure the veracity of the FBI notes?

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Speaker 2: So we always bring someone with us and essentially instruct

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Speaker 2: them to take down almost every word that is said.

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Speaker 2: And this is ideally a paralegal, a non lawyer, somebody

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Speaker 2: who can testify. You know, my experience when I was

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Speaker 2: a federal prosecutor. And then now on the defense side

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Speaker 2: and on the receiving end of these reports is agents

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Speaker 2: from any agency, whether it's FBI or Secret Service or

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Speaker 2: whoever else it may be. They take down what they

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Speaker 2: think is important, and your caveats are not going to

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Speaker 2: be what they think are important. You're sort of hedging

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Speaker 2: around what you say and putting context around what you

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Speaker 2: say is not going to be the kind of thing

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Speaker 2: that goes into the notes. It's the same as when

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Speaker 2: they interview someone. Often I find that the nos or

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Speaker 2: the I don't know answers don't make it into the report,

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Speaker 2: whereas only the affirmative statements do, and of course are

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Speaker 2: the no and I don't know could be very critical,

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Speaker 2: but for some reason, often that's excluded once I see

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Speaker 2: the report of an interview where I was present. So

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Speaker 2: I always have somebody with me, and, like I say,

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Speaker 2: somebody who could, if necessarily, testify as to what our

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Speaker 2: recollection and our notes show from the meeting.

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Speaker 1: So, in talking to other defense lawyers, do you think

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Speaker 1: that they're more aware now or more afraid of what

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Speaker 1: might happen in these meetings.

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Speaker 2: I think this prosecution for people who are aware of

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Speaker 2: it sent a bit of a shockwave through the Defense Bar.

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Speaker 2: Like you said, I wrote this article, and I haven't

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Speaker 2: had a reaction like I had to this article from

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Speaker 2: the Defense Bar, people pointing out to me that they

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Speaker 2: are changing their practices, people responding that they've never heard

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Speaker 2: of this, and they're going to have to think about

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Speaker 2: it going forward. You know, we're going to have to

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Speaker 2: see whether this was an outlier, very aggressive prosecution, or

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Speaker 2: whether this is something that is going to be a tool,

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Speaker 2: a new tool in the government's tool belt, and we're

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Speaker 2: all going to have to be cognizant of it. So

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Speaker 2: I do think it's going to change, or at least

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Speaker 2: make us more cautious as we go into these meetings.

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Speaker 2: And I'm certainly going to I've always been aware of

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Speaker 2: being careful of how I frame things and how I

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Speaker 2: say them as I'm going through, but certainly something I'm

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Speaker 2: going to emphasize with my teams going forward as well.

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Speaker 1: Just a few questions about the appeal and the Supreme

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Speaker 1: Court has been narrowing the definition of corruption for more

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Speaker 1: than a decade, and we've seen a lot of political

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Speaker 1: figures get their cases reversed. I mean, is that a

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Speaker 1: good argument do you think for Menandez, it's one he'll

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Speaker 1: bring up first.

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Speaker 2: I'm sure it's something he'll bring up. I've had bribery cases,

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Speaker 2: public corruption cases, and this is sort of where the

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Speaker 2: rub is right now as the Supreme Course is going

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Speaker 2: through and as you say, narrowing the definition of what

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Speaker 2: we call an official act, and so I would be

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Speaker 2: shocked if they don't focus on that. They were focused

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Speaker 2: on it in the pre trial motion practice and then

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Speaker 2: again during the trial. And as I look at it

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Speaker 2: sort of from the outside, it seems to me that

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Speaker 2: they've got some good argument. Then they've got some that

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Speaker 2: may be more of a challenge. It's really about whether

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Speaker 2: Menendez was using his official position on any decision or

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Speaker 2: action on any question matter caused preceding or controversy which

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Speaker 2: may be pending before him in his official capacity. So,

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Speaker 2: for instance, he as was alleged interfered with a state

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Speaker 2: prosecution by calling up a state prosecutor and saying, hey,

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Speaker 2: maybe take another look at this. That's not really something

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Speaker 2: that's pending before him, and maybe a harder argument that

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Speaker 2: that's an official act. He doesn't really have an official

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Speaker 2: role there. He's sort of using his influence and position,

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Speaker 2: whereas maybe as he's alleged to have interfered with the

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Speaker 2: nomination of the US Attorney from New Jersey by essentially

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Speaker 2: corruptly making a recommendation to the President of who to nominate. Well,

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Speaker 2: that may be closer to the line, because that is

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Speaker 2: the traditional function of the senator from a particular state.

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Speaker 2: They make recommendations, especially when they're in the same party.

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Speaker 2: Those recommendations are often followed, and that is potentially something

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Speaker 2: that was pending before him in his official capacity. So

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Speaker 2: it seems to me that, as I say from the outside,

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Speaker 2: they may have some luck, but I'd be surprised if

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Speaker 2: they can fully get everything reversed. And that's yeah, that's

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Speaker 2: just one part of the case. Obviously, there's other pieces

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Speaker 2: that don't rely on that official Act element. Those are

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Speaker 2: going to be harder for them to succeed on from

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Speaker 2: what I can see.

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Speaker 1: Do you think that his being an agent of Egypt

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Speaker 1: that that's one that's easier for them to attack.

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Speaker 2: I think what you have to look at is the

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Speaker 2: full picture, right, because the argument, as I understand it,

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Speaker 2: and I would frame it, is essentially that legislators, and

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Speaker 2: especially a senior senator like him, who's doing the foreign

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Speaker 2: affairs work that he's doing, are going to have contact

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Speaker 2: with foreign officials and are going to take positions that

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Speaker 2: may be to the benefit of a particular country, in

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Speaker 2: this case Egypt or Kutar. And so that's just sort

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Speaker 2: of part and parcel of what they do. And they

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Speaker 2: even rate the idea of the speech and debate clause, right,

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Speaker 2: This is part of his official functions as a member

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Speaker 2: of Congress. The challenge in a case like this is, well,

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Speaker 2: what about the rest of the picture, right? And here

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Speaker 2: it's the cash and the gold bars and the deleted

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Speaker 2: messages and so on and so forth that I think

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Speaker 2: the jury obviously felt that takes it out of the

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Speaker 2: realm of what you're doing in your official capacity and

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Speaker 2: puts it more into the realm of something that is corrupt.

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Speaker 2: And so that's what's going to be the bigger challenge

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Speaker 2: I think on appeal is how do you question the

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Speaker 2: jury's verdict in light of the full scope of the evidence.

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Speaker 2: And that's always what makes these cases difficult.

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Speaker 1: A lot to think about. Thanks so much, Ariel. That's

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Speaker 1: Ariel Newman of bird Morella. The Supreme Courts Republican super

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Speaker 1: majority acted with impunity this past term, slashing the power

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Speaker 1: of regulators, making it harder to challenge racial gerrymandering, allowing

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Speaker 1: home less people to be punished for sleeping in public places,

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Speaker 1: and perhaps the most controversial, a decision giving Donald Trump

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Speaker 1: immunity from criminal charges for some actions taken while he

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Speaker 1: was president. It was the third term to finish with

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Speaker 1: landmark rulings that included overturning precedents in the two previous terms.

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Speaker 1: The Court eliminated the constitutional right to an abortion, declared

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Speaker 1: a right to carry handguns in public, expanded religious freedoms,

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Speaker 1: and outlawed race conscious college admissions. Polling consistently shows that

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Speaker 1: Americans disapprove of the Supreme Court, with new polling from

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Speaker 1: Fox News finding that six out of ten Americans view

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Speaker 1: the Supreme Court's job performance with disapproval. For years, Democratic

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Speaker 1: lawmakers have held hearings, proposed legislation, and even introduced articles

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Speaker 1: of impeachment that would make the Supreme Court accountable to

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Speaker 1: no avail. Joining me is constitutional law expert Alitunde Johnson,

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Speaker 1: professor at Columbia Law School. Start by giving me your

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Speaker 1: take on just how far to the right the Roberts

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Speaker 1: Court has gone and where it's headed, I.

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Speaker 3: Think we would say that this is a fairly far

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Speaker 3: right court. And when you look at some of the

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Speaker 3: decisions on issues like abortions, guns, race, voting, affirmative action,

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Speaker 3: administrative power, presidential power. So the Court has been really

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Speaker 3: strengthening the power of the executive branch, so you see

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Speaker 3: this in the presidential immunity decision, for instance, but then

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Speaker 3: weakening the power of agencies, which generally try to advance

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Speaker 3: policies that are regulatory, like environmental policies. So when you

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Speaker 3: look at those kinds of trends overall, i'd say this

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Speaker 3: is a far right court. Those terms are very imprecise,

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Speaker 3: of course, but it's implementing a lot of the agenda

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Speaker 3: the conservatives have wanted the Court to implement on some

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Speaker 3: very key issues. Ature of the court that's particularly striking

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Speaker 3: is it's been its willingness to overturn long standing precedent.

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Speaker 3: So just this past term we see the Supreme Court

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Speaker 3: overturning a precedent in a case that lawyers just call

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Speaker 3: Chevron is a shorthand a lot of non lawyers don't

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Speaker 3: know about it, but it had a principle of deference

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Speaker 3: to agencies that courts should defer to agencies reasonable construction

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Speaker 3: of statutes. And this was important because Congress often writes statutes,

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Speaker 3: like take an environmental law, very broadly. He doesn't often

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Speaker 3: update it, and so this would give power to agencies

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Speaker 3: to interpret the statute. And often agencies did this in

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Speaker 3: a way that encourage more regulation of areas like environmental law.

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Speaker 3: So the Supreme Court overturned that long standing precedent, which

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Speaker 3: really weakens the power of agencies. I think everybody knows

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Speaker 3: at this point about Dobbs, which overturned Grow versus Wade.

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Speaker 3: And then in the affirmative action area, you see the

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Speaker 3: Supreme Court not squarely returning but really so far weakening

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Speaker 3: prior precedent that allowed universities to consider race as one

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Speaker 3: among many factors in composing a class of qualified students.

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Speaker 3: And so these are big changes. You see. It's a

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Speaker 3: court that some people have called imperial because it is

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Speaker 3: willing to overturn President.

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Speaker 1: We heard for years and years John Roberts say that

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Speaker 1: the Supreme Court justices are not politicians. During this term,

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Speaker 1: we saw in an appearance with Justice Sonya Sotomayor and

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Speaker 1: Amy Cony Barrett. Again, you know we're not politicians in robes.

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Speaker 1: But does this term show that justices are politicians who

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Speaker 1: generally vote along the lines of the president's party they

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Speaker 1: were appointed by.

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Speaker 3: Yeah, I mean I think that's generally true, or it's

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Speaker 3: turned out to be true with this court. I don't

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Speaker 3: think it's always true in the course of American history,

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Speaker 3: and that may be what they're referring to. I mean,

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Speaker 3: I'm a lawyer who teaches competition to law and other

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Speaker 3: topics and also argued before the court, So even I

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Speaker 3: hesitate to have the idea that judges are just and

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Speaker 3: justices are just politicians in the sense of trying to

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Speaker 3: enact particular partisan goals like help the Republican Party. That's

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Speaker 3: a really hard idea for most law trained people to

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Speaker 3: get their minds around, because it's a very cynical view

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Speaker 3: of the court if it's true. But I think there

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Speaker 3: has been a real questioning lately if the judges abandoned

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Speaker 3: some of their ideological or legal commitments in order to

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Speaker 3: have partisan outcomes, and they agree with I think the

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Speaker 3: complicating factor is that we know the judges are appointed

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Speaker 3: in a more either conservative or liberal bent, and they

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Speaker 3: have different views of these key questions even before they

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Speaker 3: go in. So, in other words, it's not just that

436
00:23:50,160 --> 00:23:52,920
Speaker 3: they're trying to achieve partisan outcomes. This is their view

437
00:23:53,000 --> 00:23:55,840
Speaker 3: that there's no abortion right under the Constitution. It's no

438
00:23:55,920 --> 00:23:59,440
Speaker 3: surprise so Trump it was a goal to appoint a

439
00:23:59,480 --> 00:24:02,720
Speaker 3: certa number of justices to overturn Roe versus Wads. So

440
00:24:02,880 --> 00:24:06,359
Speaker 3: is that partisan or political or is it just those

441
00:24:06,440 --> 00:24:09,880
Speaker 3: are their ideological commitments and they followed through on them.

442
00:24:10,280 --> 00:24:13,280
Speaker 3: I don't know if we can completely answer that debate,

443
00:24:13,520 --> 00:24:16,520
Speaker 3: but I think you can fairly say the Republican Party

444
00:24:16,560 --> 00:24:20,320
Speaker 3: and conservatism more happy with the Court than are liberals.

445
00:24:20,400 --> 00:24:24,360
Speaker 1: Right now, President Biden has reportedly been planning to unveil

446
00:24:24,400 --> 00:24:29,600
Speaker 1: proposals that could dramatically reshape the Supreme Court. And one

447
00:24:29,640 --> 00:24:32,919
Speaker 1: of those proposals is something that we've heard over and

448
00:24:32,960 --> 00:24:36,520
Speaker 1: over again through the years, term limits. The past five

449
00:24:36,760 --> 00:24:40,240
Speaker 1: justices to leave the Court each serve nearly three decades

450
00:24:40,320 --> 00:24:44,000
Speaker 1: or longer. So what's the opposition to term limits.

451
00:24:44,560 --> 00:24:47,040
Speaker 3: Well, it's really interesting this question about what is the

452
00:24:47,040 --> 00:24:53,480
Speaker 3: opposition to term limits, because historically Republicans and Democrats, liberals

453
00:24:53,520 --> 00:24:57,639
Speaker 3: and conservatives agreed broadly, at least in an abstract sense

454
00:24:57,680 --> 00:25:00,879
Speaker 3: on the notion that there should be term life for

455
00:25:01,000 --> 00:25:03,880
Speaker 3: the Supreme Court. It's an idea that if you are

456
00:25:03,880 --> 00:25:08,320
Speaker 3: operating for first principles. A lot of constitutional scholars would

457
00:25:08,359 --> 00:25:10,840
Speaker 3: agree that there should be term limits for the Supreme Court.

458
00:25:10,960 --> 00:25:14,320
Speaker 3: The United States Supreme Court is really an outlier in

459
00:25:14,640 --> 00:25:17,040
Speaker 3: not having either term limits. You know, a lot of

460
00:25:17,080 --> 00:25:21,000
Speaker 3: systems it could be seven years, twelve years, eighteen years

461
00:25:21,040 --> 00:25:24,160
Speaker 3: in neither having term limits or a retirement age. And

462
00:25:24,200 --> 00:25:27,000
Speaker 3: the effect of that is to have justices that are

463
00:25:27,000 --> 00:25:29,640
Speaker 3: on the court for a really long time. Yes, our

464
00:25:29,760 --> 00:25:35,080
Speaker 3: Constitution has a provision that is easily interpreted to require

465
00:25:35,200 --> 00:25:38,000
Speaker 3: term limits, although that is something debatable. But the key

466
00:25:38,040 --> 00:25:40,760
Speaker 3: thing is that at the time of the founding, people

467
00:25:41,000 --> 00:25:44,280
Speaker 3: live much shorter lives, and so partly is that, you know,

468
00:25:44,320 --> 00:25:46,440
Speaker 3: there is the problem of having people who are on

469
00:25:46,480 --> 00:25:49,160
Speaker 3: the court for a long time. But I think more

470
00:25:49,240 --> 00:25:53,320
Speaker 3: than that, it's the lack of predictability. There's no sort

471
00:25:53,320 --> 00:25:57,520
Speaker 3: of routine in every presidency getting an appointment. It's just

472
00:25:57,760 --> 00:26:00,960
Speaker 3: is something that can fall through chance, and then conversely,

473
00:26:00,960 --> 00:26:03,240
Speaker 3: it can also be gained. You know, people can stay

474
00:26:03,280 --> 00:26:06,800
Speaker 3: on the court and only retire when they are aligned

475
00:26:06,920 --> 00:26:11,080
Speaker 3: politically with the president. Or as we saw in the

476
00:26:11,160 --> 00:26:14,040
Speaker 3: last few months in the Obama administration, they can hold

477
00:26:14,119 --> 00:26:17,600
Speaker 3: up nominees and not allow a president to move forward

478
00:26:17,680 --> 00:26:20,960
Speaker 3: on their nominee and hold it open anticipating that a

479
00:26:21,119 --> 00:26:23,880
Speaker 3: Republican or in part to someone from another party can

480
00:26:23,880 --> 00:26:27,040
Speaker 3: get an office. And so that all allows a lot

481
00:26:27,080 --> 00:26:30,080
Speaker 3: of gaming of the system that makes the Court not

482
00:26:30,520 --> 00:26:35,120
Speaker 3: necessarily align with the politics of the nation or even

483
00:26:35,119 --> 00:26:36,880
Speaker 3: the politics of a particular president.

484
00:26:37,520 --> 00:26:40,439
Speaker 1: And what would be needed for the justices to be

485
00:26:40,560 --> 00:26:44,560
Speaker 1: subject to term limits? Would legislation be enough or is

486
00:26:44,600 --> 00:26:46,320
Speaker 1: a constitutional amendment required?

487
00:26:46,600 --> 00:26:49,840
Speaker 3: So this is another good question. Okay, so there is

488
00:26:49,880 --> 00:26:53,520
Speaker 3: a view and this is really outlined in the commission report.

489
00:26:53,680 --> 00:26:57,040
Speaker 3: President Biden put together this commission and it outline different

490
00:26:57,119 --> 00:26:59,280
Speaker 3: kinds of strategies. So one way would be to do

491
00:26:59,359 --> 00:27:03,440
Speaker 3: it by statute, and there are a number of constitutional

492
00:27:03,560 --> 00:27:06,520
Speaker 3: law scholars that say that you can enact term limits

493
00:27:06,560 --> 00:27:10,639
Speaker 3: by statutes. The current prevailing proposal that has gotten the

494
00:27:10,640 --> 00:27:13,720
Speaker 3: most amount of circulation is eighteen years and the question

495
00:27:13,800 --> 00:27:16,600
Speaker 3: of whether or not it can be done by the

496
00:27:16,720 --> 00:27:21,080
Speaker 3: majority or supermajority is less clear. So there are a

497
00:27:21,119 --> 00:27:23,320
Speaker 3: lot of people who think it could be filibustered and

498
00:27:23,400 --> 00:27:26,560
Speaker 3: so that you effectively need a supermajority at least in

499
00:27:26,600 --> 00:27:28,879
Speaker 3: the Senate to do it. There are others who believe

500
00:27:28,920 --> 00:27:31,359
Speaker 3: if you can get it done politically, you can do

501
00:27:31,440 --> 00:27:34,280
Speaker 3: it as a comptitutional matter by just a majority vote.

502
00:27:34,320 --> 00:27:36,879
Speaker 3: So there's that group and analysis that says you can

503
00:27:36,920 --> 00:27:41,240
Speaker 3: do this by statute. But there are comptutional law scholars

504
00:27:41,280 --> 00:27:44,520
Speaker 3: that believe that you have to amend the Constitution and

505
00:27:44,560 --> 00:27:48,880
Speaker 3: that it conflicts with the current provision of Article three

506
00:27:49,160 --> 00:27:53,120
Speaker 3: that says that justices can serve and only be removed

507
00:27:53,200 --> 00:27:56,680
Speaker 3: essentially for violations of good behavior. So the tricky thing

508
00:27:56,840 --> 00:27:59,520
Speaker 3: is that that very issue whether or not you can

509
00:27:59,560 --> 00:28:02,560
Speaker 3: do it by statute or by constitutional amendment, could in

510
00:28:02,640 --> 00:28:05,600
Speaker 3: theory be challenged and be before the same Supreme Court

511
00:28:06,200 --> 00:28:09,719
Speaker 3: that you are trying to restrain right now through term limits. Certainly,

512
00:28:09,760 --> 00:28:13,520
Speaker 3: the president has no authority to create term limits. It

513
00:28:13,560 --> 00:28:17,040
Speaker 3: has to be done by Congress or by constitutional amendment.

514
00:28:17,880 --> 00:28:20,119
Speaker 1: And what's your opinion on what would be needed.

515
00:28:20,720 --> 00:28:22,800
Speaker 3: I think it can be done by statute, but I

516
00:28:23,160 --> 00:28:25,359
Speaker 3: don't purport to be an expert on that. There's some

517
00:28:25,400 --> 00:28:28,520
Speaker 3: people who are more expert. I was persuaded by the

518
00:28:28,560 --> 00:28:31,440
Speaker 3: analysis and the commission report that said that you could

519
00:28:31,480 --> 00:28:32,600
Speaker 3: do this by statute.

520
00:28:32,760 --> 00:28:36,679
Speaker 1: Okay, another proposal, and this really seems like a no

521
00:28:36,840 --> 00:28:42,040
Speaker 1: brainer to me an enforceable ethics code for Supreme Court

522
00:28:42,200 --> 00:28:47,200
Speaker 1: justices in light of all the alleged ethical violations by

523
00:28:47,280 --> 00:28:49,600
Speaker 1: Clarence Thomas, some by Alito.

524
00:28:50,280 --> 00:28:54,000
Speaker 3: Yeah, so I think the last year has really demonstrated

525
00:28:54,200 --> 00:28:58,360
Speaker 3: a need for a firmer ethics code. So there is

526
00:28:58,480 --> 00:29:02,520
Speaker 3: the issue of things that create an appearance of impropriety

527
00:29:02,600 --> 00:29:07,320
Speaker 3: or actual impropriety. So giving gifts, you know, monetary gifts

528
00:29:07,360 --> 00:29:11,000
Speaker 3: to justices, I mean, this has happened with regard to Thomas,

529
00:29:11,040 --> 00:29:14,080
Speaker 3: and some of that was not disclosed. Then there are

530
00:29:14,120 --> 00:29:17,840
Speaker 3: also issues of appearance of impropriety because of behavior. This

531
00:29:17,920 --> 00:29:21,480
Speaker 3: could be speeches, This could be you or perhaps your

532
00:29:21,520 --> 00:29:24,120
Speaker 3: wife flying an upside down flag before you have to

533
00:29:24,200 --> 00:29:30,240
Speaker 3: rule on a presidential immunity decision. So these things absolutely

534
00:29:30,400 --> 00:29:33,760
Speaker 3: have created for far too large a segment of the

535
00:29:33,800 --> 00:29:38,840
Speaker 3: population the feeling that you alluded to in some of

536
00:29:38,880 --> 00:29:42,160
Speaker 3: your questions, which is that people are questioning the legitimacy

537
00:29:42,160 --> 00:29:44,680
Speaker 3: of the Supreme Court. They see us a partisan institution,

538
00:29:45,040 --> 00:29:48,480
Speaker 3: and I think even more dangerously might see it us corrupt.

539
00:29:48,640 --> 00:29:52,400
Speaker 3: You get to things like gifts, and so the arguments

540
00:29:52,400 --> 00:29:55,200
Speaker 3: are for strengthening the ethics code. I mean, the Supreme

541
00:29:55,200 --> 00:29:58,920
Speaker 3: Court had a really very weak ethics code and then

542
00:29:59,120 --> 00:30:02,880
Speaker 3: somewhat strength then did but still it didn't in key ways.

543
00:30:02,960 --> 00:30:07,280
Speaker 3: And so you know, the proposals that are currently underway

544
00:30:07,480 --> 00:30:10,800
Speaker 3: would have a congressional statute with it with strengthen the

545
00:30:10,920 --> 00:30:14,520
Speaker 3: recusal rules, and that means a justice has to step

546
00:30:14,520 --> 00:30:17,600
Speaker 3: away from a decision if there is impropriety or an

547
00:30:17,600 --> 00:30:20,800
Speaker 3: appearance of impropriety or conflict of interest and has to

548
00:30:21,320 --> 00:30:25,120
Speaker 3: explain why they're doing so or why they're not doing so.

549
00:30:25,120 --> 00:30:28,720
Speaker 3: So just stronger recusal rules. The other parts of the

550
00:30:28,760 --> 00:30:33,360
Speaker 3: proposals are for stronger financial disclosure. Right now, the financial

551
00:30:33,400 --> 00:30:36,720
Speaker 3: disclosure rules are considered by some quite weak, and the

552
00:30:36,800 --> 00:30:39,719
Speaker 3: point is to make them what the House or the

553
00:30:39,720 --> 00:30:43,080
Speaker 3: Senate has to do. They have really detailed and clear

554
00:30:43,160 --> 00:30:46,560
Speaker 3: financial disclosure rules and gifts and things like that. So

555
00:30:47,320 --> 00:30:50,440
Speaker 3: that's the pro is that that would make all of

556
00:30:50,520 --> 00:30:55,040
Speaker 3: us trust the Court more if we understood how it

557
00:30:55,200 --> 00:31:00,760
Speaker 3: was ruling on these questions of conflict and appearance of propriety.

558
00:31:01,160 --> 00:31:05,240
Speaker 3: And also that these rules would be enforceable, right because

559
00:31:05,320 --> 00:31:08,320
Speaker 3: right now it's the Supreme Court itself that decides, oh,

560
00:31:08,400 --> 00:31:11,560
Speaker 3: I just don't want to accuse myself in a particular case,

561
00:31:11,560 --> 00:31:13,720
Speaker 3: and it doesn't explain it, and so you would think

562
00:31:13,760 --> 00:31:17,080
Speaker 3: this would be low lying fruit. You know. The questions

563
00:31:17,120 --> 00:31:18,960
Speaker 3: that I think are coming up about them, I mean,

564
00:31:18,960 --> 00:31:22,880
Speaker 3: one is political. I think that in the abstract conservatives

565
00:31:22,960 --> 00:31:26,720
Speaker 3: and Republicans would agree to these rules, but because they're

566
00:31:26,800 --> 00:31:30,400
Speaker 3: right now caught up in sort of larger criticism by

567
00:31:30,600 --> 00:31:35,560
Speaker 3: progressives or Democrats about the Court, there are many Republicans

568
00:31:35,560 --> 00:31:37,680
Speaker 3: who are not willing to sign on, where maybe if

569
00:31:37,720 --> 00:31:40,800
Speaker 3: the Court were differently arranged politically, they would have been

570
00:31:40,840 --> 00:31:43,000
Speaker 3: willing to sign on. So I think that's one thing.

571
00:31:43,440 --> 00:31:46,600
Speaker 3: There are some constitutional questions that have been raised by this,

572
00:31:46,680 --> 00:31:50,320
Speaker 3: although I think they're even weaker than the term limits questions,

573
00:31:50,360 --> 00:31:53,320
Speaker 3: which is the notion that Congress cannot create any of

574
00:31:53,320 --> 00:31:56,080
Speaker 3: these rules. In fact, Justice Alito has said this that

575
00:31:56,320 --> 00:31:58,800
Speaker 3: Congress doesn't have the power to regulate the Court in

576
00:31:58,840 --> 00:32:02,200
Speaker 3: this area, and this would be a violation of separation

577
00:32:02,320 --> 00:32:05,160
Speaker 3: of powers. That argument is out there. I think it's

578
00:32:05,200 --> 00:32:08,840
Speaker 3: a pretty weak argument. Congress already does have some regulation

579
00:32:08,920 --> 00:32:12,200
Speaker 3: of the Supreme Court, and what it would envision for

580
00:32:12,240 --> 00:32:14,720
Speaker 3: our system I think is very dangerous. A court that

581
00:32:15,120 --> 00:32:18,960
Speaker 3: the most democratically accountable branch, which is Congress, could not

582
00:32:19,080 --> 00:32:22,440
Speaker 3: regulate at all, I think is a very dangerous idea

583
00:32:22,760 --> 00:32:25,360
Speaker 3: of the power of the court. So I've thought that

584
00:32:25,440 --> 00:32:28,040
Speaker 3: this politically was the one that was more likely to

585
00:32:28,160 --> 00:32:32,600
Speaker 3: move forward, regardless of Biden's endorsement. But even it has

586
00:32:32,600 --> 00:32:35,120
Speaker 3: not moved forward so far in the last two or

587
00:32:35,160 --> 00:32:36,520
Speaker 3: three years of being proposed.

588
00:32:36,760 --> 00:32:40,120
Speaker 1: Coming up next other proposals to reform the Supreme Court.

589
00:32:40,560 --> 00:32:44,680
Speaker 1: You're listening to Bloomberg. Every recent poll shows that most

590
00:32:44,720 --> 00:32:48,120
Speaker 1: Americans are not happy with the Supreme Court. But what

591
00:32:48,320 --> 00:32:51,520
Speaker 1: can be done? I've been discussing some of the proposals

592
00:32:51,560 --> 00:32:55,680
Speaker 1: with Professor Alatunde Johnson of Columbia Law School. So, I mean,

593
00:32:55,720 --> 00:33:00,400
Speaker 1: democratic lawmakers have held hearings and proposed legislation to the

594
00:33:00,440 --> 00:33:03,880
Speaker 1: Supreme Court accountable. But I can imagine that the average

595
00:33:03,960 --> 00:33:07,280
Speaker 1: person who hears about Supreme Court reform all the time

596
00:33:07,320 --> 00:33:10,680
Speaker 1: and sees nothing being done, it seems like nothing will

597
00:33:10,720 --> 00:33:14,600
Speaker 1: ever happen to make the justices more accountable and to

598
00:33:14,720 --> 00:33:16,880
Speaker 1: make the Supreme Court more transparent.

599
00:33:17,480 --> 00:33:20,680
Speaker 3: Yeah, I mean, I think a challenge in this area

600
00:33:21,160 --> 00:33:25,400
Speaker 3: is getting the average person to prioritize it as an

601
00:33:25,400 --> 00:33:29,840
Speaker 3: issue enough to put pressure on their congressional members, because

602
00:33:30,200 --> 00:33:33,720
Speaker 3: it's something that Congress has to elevate, and I don't

603
00:33:33,720 --> 00:33:35,720
Speaker 3: want to say that something's never going to happen. I'm

604
00:33:35,760 --> 00:33:39,720
Speaker 3: not an expert on the politics of this, but what

605
00:33:39,880 --> 00:33:43,080
Speaker 3: I can see when I look at the overall ecosystem

606
00:33:43,160 --> 00:33:45,600
Speaker 3: is that we're talking about the Court more now than

607
00:33:46,400 --> 00:33:49,320
Speaker 3: we have in the whole time that I've been a lawyer.

608
00:33:49,640 --> 00:33:52,479
Speaker 3: Certainly so, I'd say in the last thirty years, I'm

609
00:33:52,520 --> 00:33:54,800
Speaker 3: seeing a lot more discussion of these issues by people

610
00:33:54,800 --> 00:33:57,920
Speaker 3: who are not experts, and there's a lot more interest

611
00:33:58,160 --> 00:34:00,840
Speaker 3: in what is the Court doing in terms of its rulings.

612
00:34:01,120 --> 00:34:04,360
Speaker 3: People have been talking about things like the Court's methodology

613
00:34:04,920 --> 00:34:08,920
Speaker 3: of originalism. I think a lot of people are conversant

614
00:34:09,000 --> 00:34:13,400
Speaker 3: in questions around term limits, so that could translate into

615
00:34:13,920 --> 00:34:19,560
Speaker 3: ordinary citizens making these questions of ethical reform and court reform,

616
00:34:19,800 --> 00:34:22,760
Speaker 3: and the higher on their own political agenda. The balance

617
00:34:22,880 --> 00:34:25,400
Speaker 3: is just that there is a partisan balance to the

618
00:34:25,560 --> 00:34:29,399
Speaker 3: urgency of it. Democrats care more about court reform right

619
00:34:29,440 --> 00:34:32,400
Speaker 3: now because they're more discontent with the Court than Republicans,

620
00:34:32,480 --> 00:34:35,600
Speaker 3: and that can catch this issue in the same kind

621
00:34:35,600 --> 00:34:40,200
Speaker 3: of patterns of polarization that affect other areas of American politics.

622
00:34:40,800 --> 00:34:44,480
Speaker 1: So I haven't heard for a while, you know, suggestions

623
00:34:44,520 --> 00:34:47,520
Speaker 1: of expanding the court or so called packing the court.

624
00:34:48,120 --> 00:34:50,759
Speaker 1: Has that just gone out of favor even to try that.

625
00:34:51,200 --> 00:34:55,160
Speaker 3: My sense of that issue is that there's not enough

626
00:34:55,520 --> 00:34:59,640
Speaker 3: political support for expansion, and mainly that there's not support

627
00:34:59,719 --> 00:35:05,920
Speaker 3: am the president. So the issue of expanding the court,

628
00:35:06,320 --> 00:35:09,799
Speaker 3: this is something that Congress could do. I mean, it's

629
00:35:09,840 --> 00:35:13,600
Speaker 3: already happened in American history, does not require a constitutional

630
00:35:13,680 --> 00:35:15,959
Speaker 3: amendment at all. I don't think there is a real

631
00:35:16,080 --> 00:35:20,480
Speaker 3: view that it requires constitutional amendment. But between Congress not

632
00:35:20,800 --> 00:35:25,360
Speaker 3: having enough support because it's locked up in a partisan gridlock,

633
00:35:25,480 --> 00:35:30,239
Speaker 3: and the president, President Biden himself not supporting it, I'm

634
00:35:30,239 --> 00:35:32,640
Speaker 3: not sure if it's going to go forward.

635
00:35:33,680 --> 00:35:37,480
Speaker 1: President Biden has always been reluctant to make any changes

636
00:35:37,520 --> 00:35:40,640
Speaker 1: to the Supreme Court, and the theory is that these

637
00:35:40,680 --> 00:35:45,439
Speaker 1: proposals were made in order to help him with progressives.

638
00:35:45,680 --> 00:35:48,120
Speaker 1: Now that he's dropping out of the race, it seems

639
00:35:48,280 --> 00:35:51,640
Speaker 1: likely that these proposals will also go by the wayside.

640
00:35:51,719 --> 00:35:52,040
Speaker 2: Again.

641
00:35:52,719 --> 00:35:55,600
Speaker 3: Yes, it certainly could fall by the wayside. Again, I

642
00:35:55,960 --> 00:36:00,120
Speaker 3: don't know for athand about the politics. You're comfortably or

643
00:36:00,280 --> 00:36:02,720
Speaker 3: city and while I used to work in the Senate,

644
00:36:02,719 --> 00:36:05,520
Speaker 3: that was a long time ago. But my sense of

645
00:36:05,120 --> 00:36:08,600
Speaker 3: the politics is that, yeah, he did this in part

646
00:36:08,640 --> 00:36:12,160
Speaker 3: to shore up some support among progressives. I think the

647
00:36:12,280 --> 00:36:16,480
Speaker 3: issues of term limits and ethical reforms, though, are something

648
00:36:16,600 --> 00:36:19,160
Speaker 3: that could have broad based support. It doesn't have to

649
00:36:19,280 --> 00:36:22,280
Speaker 3: just be a progressive issue as I As I mentioned before,

650
00:36:22,480 --> 00:36:27,080
Speaker 3: but it might not if nobody feels that they need

651
00:36:27,120 --> 00:36:31,560
Speaker 3: to prioritize this issue for political gain, meaning whoever is

652
00:36:31,600 --> 00:36:35,520
Speaker 3: the next Democratic nominee, it might be a while before

653
00:36:35,520 --> 00:36:39,280
Speaker 3: anything goes forward. There's also the issue of Congress itself.

654
00:36:39,400 --> 00:36:43,040
Speaker 3: I would be skeptical if anything went forward before November.

655
00:36:43,160 --> 00:36:45,279
Speaker 3: I think this is just a time for those who

656
00:36:45,320 --> 00:36:50,120
Speaker 3: really are concerned about this issue to continue to educate

657
00:36:50,320 --> 00:36:54,520
Speaker 3: American people about it, to have discussions at every level

658
00:36:54,680 --> 00:36:59,520
Speaker 3: of the citizenry and of government actors and legislators about

659
00:36:59,560 --> 00:37:02,120
Speaker 3: the possible ability. So it's the time to continue to

660
00:37:02,120 --> 00:37:06,880
Speaker 3: have hearings but also just discussion so that people understand this.

661
00:37:07,320 --> 00:37:09,719
Speaker 3: And I like that move. I don't think that the

662
00:37:09,760 --> 00:37:12,960
Speaker 3: Supreme Court should just be an unaccountable institution that nobody

663
00:37:13,040 --> 00:37:16,680
Speaker 3: understands and thinks, just drops decisions from on high that

664
00:37:16,719 --> 00:37:20,560
Speaker 3: we all have to agree to. I think ultimately an

665
00:37:20,600 --> 00:37:24,759
Speaker 3: institution depends on all of us understanding it, believing it

666
00:37:24,840 --> 00:37:27,879
Speaker 3: operates in the way that it should in a modern democracy.

667
00:37:28,200 --> 00:37:31,560
Speaker 3: And so I'm happy that, even if these issues don't

668
00:37:31,600 --> 00:37:34,239
Speaker 3: go forward immediately, that people are talking about them and

669
00:37:34,280 --> 00:37:35,200
Speaker 3: that they're on the table.

670
00:37:35,520 --> 00:37:39,440
Speaker 1: People are also talking about Amy Cony Barrett and how

671
00:37:39,480 --> 00:37:43,120
Speaker 1: she's the Supreme Court justice to watch how she breaks

672
00:37:43,200 --> 00:37:48,319
Speaker 1: with the conservative majority on occasion, but whenever there's a

673
00:37:48,360 --> 00:37:54,040
Speaker 1: controversial issue, her vote is with the five other Conservatives.

674
00:37:54,239 --> 00:37:55,800
Speaker 1: So what does it matter if she has a different

675
00:37:55,800 --> 00:37:59,879
Speaker 1: approach to history and tradition and originalism. If her vote

676
00:37:59,920 --> 00:38:04,200
Speaker 1: is always with the Conservatives on the key issues, maybe.

677
00:38:03,920 --> 00:38:07,920
Speaker 3: Its signals for her that she is open to thinking

678
00:38:07,960 --> 00:38:10,920
Speaker 3: about these issues in different ways, and maybe that is

679
00:38:10,920 --> 00:38:13,360
Speaker 3: something that we see in the years to come. But

680
00:38:14,719 --> 00:38:18,840
Speaker 3: on the cases that people have been watching the most, yeah,

681
00:38:18,880 --> 00:38:23,560
Speaker 3: she's fairly aligned with the conservative majority. I don't see

682
00:38:23,600 --> 00:38:26,480
Speaker 3: that much space there. I think it's one thing if

683
00:38:26,480 --> 00:38:28,759
Speaker 3: people write concurrences that you see this a lot, but

684
00:38:28,880 --> 00:38:32,480
Speaker 3: don't really create any space in the actual vote. Then

685
00:38:33,080 --> 00:38:35,759
Speaker 3: that tends to be mostly of interest to law professors.

686
00:38:36,120 --> 00:38:39,560
Speaker 3: But sometimes those things they change down the line. That's

687
00:38:39,640 --> 00:38:41,279
Speaker 3: one of the things that some people see is the

688
00:38:41,320 --> 00:38:44,319
Speaker 3: benefit of having justices who stay on the court for

689
00:38:44,360 --> 00:38:46,680
Speaker 3: a little while is sometimes their views do change.

690
00:38:47,160 --> 00:38:50,959
Speaker 1: And people often talk about justices who've changed when they're

691
00:38:50,960 --> 00:38:56,000
Speaker 1: on the court, becoming more liberal in several instances. But

692
00:38:56,480 --> 00:39:01,279
Speaker 1: weren't those justices chosen before the very serious vetting that

693
00:39:01,320 --> 00:39:05,160
Speaker 1: Supreme Court justices go through now where it seems pretty

694
00:39:05,200 --> 00:39:08,360
Speaker 1: clear what their positions are, and where you have the

695
00:39:08,400 --> 00:39:13,359
Speaker 1: federalist society making these lists of candidates that they're sure of.

696
00:39:14,080 --> 00:39:17,879
Speaker 3: Yeah, I do think that that has played a role.

697
00:39:18,080 --> 00:39:20,879
Speaker 3: Is the idea that you want these judges who are

698
00:39:20,920 --> 00:39:26,560
Speaker 3: more ideologically committed, and there are sort of different people

699
00:39:26,840 --> 00:39:30,160
Speaker 3: in some ways. So I mean, I clerked for Justice

700
00:39:30,160 --> 00:39:35,880
Speaker 3: Stevens and he was appointed by Republican and he was

701
00:39:36,640 --> 00:39:38,440
Speaker 3: not vetted in that way. I mean, I think he

702
00:39:38,560 --> 00:39:41,880
Speaker 3: was broadly considered to be a Republican. But by the

703
00:39:41,960 --> 00:39:48,440
Speaker 3: time he left the judiciary and retired, I think a

704
00:39:48,440 --> 00:39:50,920
Speaker 3: lot of people associated him with the more liberal wing.

705
00:39:51,480 --> 00:39:54,560
Speaker 3: But he did change his views on a lot of issues,

706
00:39:54,719 --> 00:39:58,520
Speaker 3: and it's because of his temperament. He was open minded,

707
00:39:59,120 --> 00:40:03,040
Speaker 3: and he he was willing to listen to different arguments.

708
00:40:03,680 --> 00:40:06,759
Speaker 3: He was independent minded in a range of things, Like

709
00:40:06,760 --> 00:40:11,480
Speaker 3: his views didn't always go lockstep in a liberal or

710
00:40:11,560 --> 00:40:16,160
Speaker 3: conservative direction, even at the beginning or at the end right.

711
00:40:16,560 --> 00:40:19,280
Speaker 3: And so I think that kind of temperament, it's unclear

712
00:40:19,280 --> 00:40:23,040
Speaker 3: to me whether that's valued as much. I think it's

713
00:40:23,080 --> 00:40:26,319
Speaker 3: really important in a judge, and that's different from being

714
00:40:26,320 --> 00:40:28,920
Speaker 3: an advocate. As an advocate, you can be like this

715
00:40:29,000 --> 00:40:30,680
Speaker 3: is what I want is an outcome all the time.

716
00:40:30,760 --> 00:40:33,600
Speaker 3: As a judge, you have to make arguments that stand

717
00:40:33,680 --> 00:40:39,120
Speaker 3: up to reasonable inquiry and debate, and you don't have

718
00:40:39,200 --> 00:40:42,760
Speaker 3: to be absolutely consistent over time. You can change your views,

719
00:40:42,760 --> 00:40:45,319
Speaker 3: but you have to be to explain your decisions and

720
00:40:45,360 --> 00:40:47,759
Speaker 3: your outcomes. And I don't know if that's what we

721
00:40:47,800 --> 00:40:49,080
Speaker 3: want injustices anymore.

722
00:40:49,360 --> 00:40:51,600
Speaker 1: Maybe some of us want that. Thanks so much for

723
00:40:51,640 --> 00:40:55,400
Speaker 1: being on the show. That's Professor Allatunde Johnson of Columbia

724
00:40:55,480 --> 00:40:59,400
Speaker 1: Law School. In other news today, the first congressional hearing

725
00:40:59,440 --> 00:41:03,480
Speaker 1: into the town assassination of former President Trump. The House

726
00:41:03,520 --> 00:41:07,640
Speaker 1: Oversight Committee heard from Secret Service Director Kim Cheadle, who,

727
00:41:07,760 --> 00:41:12,800
Speaker 1: during her opening statement took full responsibility for any security lapses.

728
00:41:13,640 --> 00:41:16,560
Speaker 4: The assassination attempt of former President Donald Trump on July

729
00:41:16,640 --> 00:41:21,760
Speaker 4: thirteenth is the most significant operational failure of the Secret

730
00:41:21,800 --> 00:41:24,880
Speaker 4: Service in decades, and I am keeping him and his

731
00:41:24,960 --> 00:41:26,080
Speaker 4: family in my thoughts.

732
00:41:26,719 --> 00:41:31,239
Speaker 1: Cheatle vowed that an investigation will uncover the missteps, but

733
00:41:31,440 --> 00:41:34,600
Speaker 1: lawmakers on both sides of the aisle are calling for

734
00:41:34,680 --> 00:41:37,279
Speaker 1: her to resign. And that's it for this edition of

735
00:41:37,280 --> 00:41:40,320
Speaker 1: the Bloomberg Law Podcast. Remember you can always get the

736
00:41:40,400 --> 00:41:43,320
Speaker 1: latest legal news by subscribing and listening to the show

737
00:41:43,480 --> 00:41:48,040
Speaker 1: on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast,

738
00:41:48,080 --> 00:41:51,960
Speaker 1: Slash Law. I'm June Grosso and this is Bloomberg