Speaker 1: You will and you will become a member of the U. S.
Speaker 1: Supreme Court. That was Senator Patrick Leahy telling Supreme Court
Speaker 1: nominique Tangi Brown Jackson that no matter of the ordeal
Speaker 1: of her nomination hearings where Republican senators have barraged her
Speaker 1: with the tax centering on crime and race, she will
Speaker 1: be confirmed to be the first black woman to be
Speaker 1: a Supreme Court justice because the Democrats have the votes.
Speaker 1: Here's Judge Jackson on what she'll bring to the court.
Speaker 1: What I would hope to bring to the Supreme Court
Speaker 1: um is very similar to what a hundred and fifteen
Speaker 1: other justices have brought, which is their life experiences, their
Speaker 1: perspectives and mine include being a trial judge, being an
Speaker 1: appellate judge, being a public defender, being a member of
Speaker 1: the Sentencing commission um. In addition to my being a
Speaker 1: black woman. Uh lucky inheritor of the civil rights dream.
Speaker 1: Joining me is Adam Winkler, a professor at u c
Speaker 1: l A law school. Start by in general, give me
Speaker 1: your opinion of Judge Jackson and how she will how
Speaker 1: she would fare as the next Supreme Court justice. Well,
Speaker 1: there seems to be no doubt that Judge Brown Jackson
Speaker 1: is a very well qualified nominee to the Supreme Court,
Speaker 1: as she has a lot of judicial experience. She brings
Speaker 1: a diversity not just in terms of her racial identity,
Speaker 1: but also in terms of her perspective, having been on
Speaker 1: the Sentencing Commission, having been a public defender, never had
Speaker 1: a public defender on the Supreme Court. In other ways,
Speaker 1: she's very much a standard candidate for the Supreme Court
Speaker 1: in the sense that she comes from a background of
Speaker 1: being a judge, primarily in recent years from the District
Speaker 1: Court and then onto the d C Circuit, and comes
Speaker 1: from Harvard Law School, like ow many justices these days
Speaker 1: come from the very very top law schools. So she
Speaker 1: meets the traditional requirements but also has some elements of
Speaker 1: her path to give her a slightly different perspective. In
Speaker 1: her opening statement, she referred to her nomination as historic
Speaker 1: and said that she would be a fair and neutral arbiter.
Speaker 1: What did you see in her opening statement and what
Speaker 1: she addressed about her role as a judge. Well, I
Speaker 1: think what we see in her opening statement is what
Speaker 1: we see so many Supreme Court nominees lately, which is
Speaker 1: kind of very uncontroversial statements that they will be neutral arbiters,
Speaker 1: as Chief Justice John Roberts said in his confirmation hearing
Speaker 1: is just an umpire calling falls and strikes. The truth is,
Speaker 1: we all know that judges really do approach cases with
Speaker 1: their values philosophy, influenced and informed by their own experiences,
Speaker 1: and the sort of anodyne perspective on what judging is
Speaker 1: just a neutral arbiter, almost like a machine that you
Speaker 1: can just put in and fromation and get the right
Speaker 1: answer out of. It. Seems to be what senators want
Speaker 1: these days, but certainly doesn't accurately describe what any justice
Speaker 1: will do, either Justice Jackson or any other. Yeah, the
Speaker 1: Republicans seem to be looking to get her judicial philosophy. Now,
Speaker 1: I don't know if they're referring to is she a
Speaker 1: textualist or something else? Would a Supreme Court nominee explain
Speaker 1: their judicial philosophy that way? Have the textualists done that
Speaker 1: in the past. Well, we have had justices in the
Speaker 1: past to describe their judicial philosophy as originalists or textualists.
Speaker 1: But the truth of the matter is that justices and
Speaker 1: their nominees do not want to get into their philosophies
Speaker 1: of how they are going to decide cases with any
Speaker 1: kind of specificity less they lose political support. It is
Speaker 1: one of these things where in the confirmation hearings, if
Speaker 1: you have something controversial to say, your best bet is
Speaker 1: just not to say it at all and hope that
Speaker 1: you have the votes to get through a Nonetheless, given
Speaker 1: a Judge Jackson's incredible background and clear qualifications, barring any
Speaker 1: kind of obvious misstep, saying something very controversial and unnecessary
Speaker 1: in these hearings, she seems certain to be confirmed. So
Speaker 1: there's really no gain for justices to get in at
Speaker 1: least in depth in their philosophy if it might cost
Speaker 1: them a vote. Republicans are using this soft on crime
Speaker 1: attack sort of as a way also of attacking President
Speaker 1: Biden's commitment to law and order. Will that work for
Speaker 1: them in her case? Well, I guess it depends what
Speaker 1: you mean, June by work for them. I think in
Speaker 1: the sense that they're not really going to derail this nomination.
Speaker 1: I don't think they think they're going to derail this nomination.
Speaker 1: I think what works for them is using these confirmation
Speaker 1: hearings as an opportunity to make political speeches. To get
Speaker 1: your ten minutes of quotes in the various advertisements and
Speaker 1: Fox news is and promoted by the local political party
Speaker 1: on Twitter or whatnot, and really not about examining the experiences, perspectives,
Speaker 1: and philosophies of the nominees. And so we see that
Speaker 1: over and over again, and it's frankly, it's not just
Speaker 1: a Republican thing, it's a democratic thing too. We saw
Speaker 1: that in with regards to the Trump nominees to the
Speaker 1: Supreme Court, that Democrats were trying to tie the nominee
Speaker 1: to the policies of the Trump administration. This is basically
Speaker 1: what the confirmation hearings have become, basically forums for senators
Speaker 1: to make political speeches that relate or not relate depending
Speaker 1: on the particular question to the nominee at hand. So
Speaker 1: the Republicans, one after the others said they weren't going
Speaker 1: to make this a controversial hearing. They weren't going to
Speaker 1: attack her as some of their nominees have been attacked.
Speaker 1: And yet Senator Josh Holly started a Twitter storm last
Speaker 1: week that criticized her sentencing of defendants convey did of
Speaker 1: the possession of child pornography. Does that seem to be
Speaker 1: a personal attack. Well, we are seeing attacks on her
Speaker 1: character and on her background, often sometimes scurless attacks. I
Speaker 1: think Marcia Blackburn, the Senator UH on Monday, accused Judge
Speaker 1: Jackson of a whole bunch of things that we're based on,
Speaker 1: a sort of scurless accusations, quotes taken out of contact,
Speaker 1: putting at her feet responsibility for things like transgender rights,
Speaker 1: even though she's never ruled on a transgender rights case
Speaker 1: in any way. And so we do see these kinds
Speaker 1: of attacks because this sort of plays to the political base.
Speaker 1: Even the Republicans said they're not going to attack her personally,
Speaker 1: of course, they're going to attack her and are attacking her.
Speaker 1: It's true they're not commenting on her history of sexual
Speaker 1: assault like a previous nominee, but that's because there are
Speaker 1: no credible allegations of such things. The Republicans keep on
Speaker 1: bringing up the Kavanaugh hearings. They seem to be forgetting
Speaker 1: the Amy Coney Barrett hearings, which, as I recall, we're
Speaker 1: a pretty restrained affair. That's right, and we often see
Speaker 1: Republicans harkening back to the Judge Bork hearings without talking
Speaker 1: about any of the other Republican justices around that same
Speaker 1: time who did get through without the kind of questioning
Speaker 1: that Robert Bork cat It is true that it seems
Speaker 1: that more and more Senators want to use their opportunity
Speaker 1: to question a nominee to sort of relitigate past confirmation battles,
Speaker 1: and even in ways that aren't aren't accurate. Amy Coming
Speaker 1: Barrett was never asked about her faith in her Supreme
Speaker 1: Court nomination process. She had been asked about it in
Speaker 1: a previous confirmation process for a different position, but not
Speaker 1: in her Supreme Court justice confirmation process. But Lindsay Graham
Speaker 1: asked of the faith of the judge Jackson, showing a
Speaker 1: kind of a willingness to make accusations but yet do
Speaker 1: the exact same thing you accused the others of doing.
Speaker 1: He also asked how faithful are you on a scale
Speaker 1: of one to ten, And of course you didn't answer that.
Speaker 1: But I thought that was a strange question at a
Speaker 1: judiciary hearing. It does seem like a strange question. And
Speaker 1: what does it really mean? Are you full of faith
Speaker 1: to God? Are you faithful to your spouse? Like? What
Speaker 1: what exactly is Lindsay Graham getting out? It's not really clear.
Speaker 1: But again, one thing that is clear that the confirmation
Speaker 1: process is broken, and the truth is it's been broken
Speaker 1: for a long time, and maybe we shouldn't expect more
Speaker 1: given its history. You know, the first confirmation hearings for
Speaker 1: a Supreme Court justice came after the nomination of Lewis
Speaker 1: brandeis the first Jewish person who was nominated for the
Speaker 1: Supreme Court, and it was clearly a reflection of a
Speaker 1: fear of this sort of Jewish radicalism. Then confirmation hearings
Speaker 1: didn't really ratchet up and involve the participation of the
Speaker 1: nominee himself really until after Brown versus Board of Education
Speaker 1: nineteen fifty five, when John M. Harland was nominated at
Speaker 1: the Supreme Court. All of the sudden, now senators like
Speaker 1: Strong Thurman wanted to have questioning of the nominee and
Speaker 1: to make sure they had the proper judicial philosophy. So
Speaker 1: we've often seen the confirmation hearings be an effort by
Speaker 1: political coalition to try to retain and keep control of
Speaker 1: the Supreme Court, except for the Kavanaugh hearings, where the
Speaker 1: accusations of sexual misconduct were raised during the hearings. Have
Speaker 1: any of these hearings elucidated something new about the candidate,
Speaker 1: or is it usually just everything we know being talked
Speaker 1: about over and over. Well, I do think that candidates
Speaker 1: have been trained not to say anything. That the system
Speaker 1: has been designed by presidents and their political parties and
Speaker 1: their advisors to just get through and if you've got
Speaker 1: the votes going in, then don't say anything controversial and
Speaker 1: don't say anything that could get you in trouble. That's
Speaker 1: sort of one of the lessons that has seemed to
Speaker 1: have come out of the confirmation process in recent years.
Speaker 1: And as the confirmation of a justice becomes just another
Speaker 1: partisan issue in American political life, one that divides deeply
Speaker 1: different coalitions and makes it very hard for people to
Speaker 1: cross party line, really we shouldn't really expect anything more.
Speaker 1: How important is it that she gets some Republican votes,
Speaker 1: or at least one Republican vote. I don't think it
Speaker 1: really matters very much. I don't think that if she
Speaker 1: gets one or two Republican votes, it all of a
Speaker 1: sudden means that her nomination was one that satisfied the
Speaker 1: conservative movement or the Republican Party, And it certainly won't
Speaker 1: show that the Republican Party is willing to bend on
Speaker 1: judicial nominees of the Democrats simply because one or two
Speaker 1: people might vote in her favor. Um. She is clearly
Speaker 1: an eminently qualified candidate, and just as Republicans have been
Speaker 1: able to get their candidates through pretty consistently um in
Speaker 1: the Supreme Court confirmation process, I imagine that she'll get
Speaker 1: through with maybe exclusively Democratic votes, maybe one or two Republicans.
Speaker 1: The only thing I hope that comes out of it
Speaker 1: is that we don't see a nominee who finds that
Speaker 1: because of the process they are changed, that they become
Speaker 1: a different person than they might otherwise be. It sometimes
Speaker 1: said that Clarence Thomas became very bitter after his confirmation
Speaker 1: hearing and hardened his views on some issues. I don't
Speaker 1: know if that's true or not, but it's been said,
Speaker 1: and certainly there was concerned after Brett Kavanaugh railed against
Speaker 1: Democrats for their attack on him and the confirmation hearing,
Speaker 1: promising payback, which raised questions about whether as a justice,
Speaker 1: he would be motivated by a desire for revenge in
Speaker 1: these kinds of confirmation hearing. If so, it shows one
Speaker 1: of the dangers of having this very highly politicized process.
Speaker 1: Thanks for being on the show Adam. That's Professor Adam
Speaker 1: Winkler of u c. L A Law School. This week,
Speaker 1: the Supreme Court considered whether a group of five hundred
Speaker 1: Taco Bell employees had to arbitrate overtime claims against a
Speaker 1: Taco Bell franchise rather than press them in federal court.
Speaker 1: The case centers on the waiver of rides by failing
Speaker 1: to promptly invoke arbitration early in litigation. The Taco Bell
Speaker 1: employees say they've been cheated out of overtime paid by Sundance,
Speaker 1: the company that owns about one fifty Taco Bell franchises.
Speaker 1: The case proceeded in federal court for nearly eight months
Speaker 1: before the company invoked an arbitration provision in its standard
Speaker 1: form employment contract. Confusion seemed to reign during the oral arguments,
Speaker 1: although Justice Stephen Bryer seemed to best explain the controversy.
Speaker 1: I mean, you had an arbitration agreement, so what you
Speaker 1: decided to do with brial lawsuit? And nobody said anything
Speaker 1: further for quite a while, and then finally the other
Speaker 1: side said, let's quote arbitration and were they too late?
Speaker 1: Now that kind of situation, I bet arises fairly frequently. Okay,
Speaker 1: Now we're starting to create a matrix of rules through
Speaker 1: your logic. It is so complicated that that that it's
Speaker 1: at least hard for a lay person like me in
Speaker 1: this area to understand. And what's worrying me is that
Speaker 1: my instinctive answer, which you will tell me is wrong.
Speaker 1: If it's wrong, is it depends? My guest is Mark Rifkin,
Speaker 1: a partner Wolf Haul and Stein. First of all, tell
Speaker 1: us why Taco Bell is being sued. Yeah, So this
Speaker 1: is a labor case where the plaintiff, the lleges violation
Speaker 1: of wage and our law. And it's a case that
Speaker 1: was related to a second case by a different employee
Speaker 1: in a different state, also against the same company, Sundance
Speaker 1: for violating the wagean arrow laws in Michigan. So the
Speaker 1: Iowa case that's in front of the Supreme Court now
Speaker 1: was related to the Michigan case brought by a different employee,
Speaker 1: both of whom alleged wage our law violations. And what's
Speaker 1: the basic issue in the case. So the question in
Speaker 1: the case, as I understand it, although I have to
Speaker 1: confess after listening to the to the argument, I'm not
Speaker 1: sure that anyone understands it. But the question in the
Speaker 1: case is whether a court can require either party to
Speaker 1: an arbitration agreement to demonstrate prejudice to the other party.
Speaker 1: If the party seeking to compel arbitration in this case
Speaker 1: it was Taco Bell, it was Sundance. If if the
Speaker 1: party seeking to compel arbitration has waived its right to
Speaker 1: do so by participating in litigation in court before asking
Speaker 1: that the matter be referred to arbitration, and so in
Speaker 1: this case just briefly because the proceedings get confusing, but
Speaker 1: briefly describe what happened to make the plaintiff say that
Speaker 1: tak Abel had engaged in litigation beforehand. Sure, so Morgan
Speaker 1: files a complaint and says that the Sundance has engaged
Speaker 1: in this wage an hour violation. Sundance answers the complaint
Speaker 1: does not assert the arbitration agreement that is in Morgan's
Speaker 1: employment contract, and the case proceeds. It gets coordinated with
Speaker 1: the case in Michigan by Wood, also a wage an
Speaker 1: hour case where Sundance was the defendant, and like they
Speaker 1: did with Morgan, they didn't assert any arbitration agreement in
Speaker 1: their answer. In the Wood case either, both cases were
Speaker 1: sent off to the mediation where would settled. The case
Speaker 1: that was pending in Michigan, the Morgan case, the case
Speaker 1: that's now in front of the Supreme Court, went back
Speaker 1: to Iowa where the defendant sun Dance, then, after an
Speaker 1: unsuccessful attempt to mediate a settlement, then try to compel
Speaker 1: arbitration under Morgan's employment agreement. And Morgan says, well, wait
Speaker 1: a minute. You waive that right by not asserting it
Speaker 1: sooner and by invoking the litigation mechanism. It's too late
Speaker 1: for you to insist on arbitration now, and that has
Speaker 1: led to the dispute that the Supreme Court now has
Speaker 1: in front of it. The District Court agreed with Morgan
Speaker 1: that Sundance waived the arbitration provision, but the Sixth Circuit
Speaker 1: disagreed and said no, Morgan failed to demonstrate any prejudice
Speaker 1: and therefore no waiver had taken place. And Morgan's answer is,
Speaker 1: will wait a minute. Nobody else has to show prejudice
Speaker 1: in the case of waiver. Why are we treating arbitration
Speaker 1: agreements different than any other kind of contractual agreement where
Speaker 1: prejudice isn't required to demonstrate waiver? And that's the issue
Speaker 1: that presumably the Supreme Court was going to decide. So,
Speaker 1: mark are the circuits split on whether or not prejudice
Speaker 1: is required here? There is disagreement about whether prejudice can
Speaker 1: be required or not. And so the principle that the
Speaker 1: Court should have, in my view, should have considered is
Speaker 1: whether requiring prejudice to show waiver in the context of
Speaker 1: an arbitration agreement treats arbitration agreements differently than all other agreements.
Speaker 1: That would be a violation of Section two of the
Speaker 1: Federal Arbitration Act, which essentially requires that arbitration agreements beat
Speaker 1: on equal footing with all other contracts. This places arbitration
Speaker 1: agreements in a preferred status because it imposes an additional
Speaker 1: requirement on a partner trying to show that the agreement
Speaker 1: was waived. The Supreme Court arguments the justices that we're
Speaker 1: talking about state law versus federal law about whether the
Speaker 1: arbitration agreement is valid and forcible. I mean, did you
Speaker 1: get any feel after the arguments of what they are
Speaker 1: concerned about. I honestly had a feeling throughout the entire
Speaker 1: argument of being Alice in Wonderland, because the entire premise
Speaker 1: of the argument was that arbitration agreements have to be
Speaker 1: on equal footing with all other agreements, except when they don't.
Speaker 1: And then we went into this whole discussion about weather
Speaker 1: Section three of the f a A, which says that
Speaker 1: any party may compel arbitration if that party is not
Speaker 1: in the fall of something. It doesn't say what, and
Speaker 1: the court then tried to figure out what that meant.
Speaker 1: And you know, I was thinking to myself, why why
Speaker 1: are they isolating Section two in section three, as though
Speaker 1: those provisions should be read separately and independently. And I
Speaker 1: kept thinking, So, if I'm driving down the highway and
Speaker 1: I get pulled over for speeding, you know, the law
Speaker 1: requires that I observed the speed limits, and it also
Speaker 1: requires that I use the turn signal when I change
Speaker 1: from one lane to another line. I have to do both.
Speaker 1: And so if I get pulled over for speeding, I
Speaker 1: can't say to the judge, who here's my case, but
Speaker 1: I use my turn signal, I use my turn signal.
Speaker 1: I have to satisfy both requirements. And it seems to
Speaker 1: me that the court and the parties tried to split
Speaker 1: this up piecemeal, and we lost sight of the whole issue,
Speaker 1: which I think is, you know, it's just a simple question.
Speaker 1: It's sun danced knowingly and intentionally manifest an intention to
Speaker 1: abandon its right to insist on arbitration. If it did that,
Speaker 1: that ends the question. If it didn't do that, then
Speaker 1: the party should be sent to arbitration. The argument got
Speaker 1: so complicated and so convoluted. I don't know that any
Speaker 1: one can understand it. Now, where does prejudice fit into
Speaker 1: what you can say? The issue is so some states,
Speaker 1: and New York is one of them, Some states say
Speaker 1: that in order to demonstrate waiver of any contractual right,
Speaker 1: there must be a clear manifestation of an intent by
Speaker 1: the party who is waiving the right to relinquish a
Speaker 1: known right. But in the arbitration context, New York says,
Speaker 1: like many other states do, that the Federal Arbitration Act
Speaker 1: also requires prejudice to the party opposing arbitration before an
Speaker 1: arbitration clause may be waived. So there's this special layer
Speaker 1: of proof that's put on a party to show that
Speaker 1: an arbitration clause has been waived that doesn't exist in
Speaker 1: any other contract where one party is claiming that the
Speaker 1: other party has waived a contractual right, and that's that's
Speaker 1: really the gist of the dispute. Which way do you
Speaker 1: think it should come out? I think that if Section
Speaker 1: two of the f a A means that arbitration agreements
Speaker 1: have to be interpreted on equal footing with all other contracts,
Speaker 1: that the prejudice requirement should apply if state law applies
Speaker 1: that to all contract rights. So if if a state
Speaker 1: law says that to demonstrate waiver of a contractual right,
Speaker 1: a party has to show two things, first, a clear
Speaker 1: intention on the part of the party that's waiving the right,
Speaker 1: two intentionally and deliberately waive a known right, and also
Speaker 1: must show that the party asserting waiver has been prejudiced,
Speaker 1: then fine, then Section two is satisfied. But if the
Speaker 1: state law says you have to show a clear intention
Speaker 1: to relinquious and known right and you also must demonstrate
Speaker 1: prejudice only in the context of an arbitration clause, then
Speaker 1: I think the requirement of equal status under section two
Speaker 1: of the f A has been violated. What's happening here
Speaker 1: is that the Supreme Court is putting arbitration agreements in
Speaker 1: a preferred class. They are giving special status to arbitration
Speaker 1: agreements and if we look at this case and we
Speaker 1: listen to that argument in any other way, we're not
Speaker 1: seeing what's going on. It used to be the law
Speaker 1: that the f a A Was intended to protect arbitration
Speaker 1: agreements between sophisticated commercial parties, and to do that, the
Speaker 1: law put those agreements on the same footing as all
Speaker 1: other contracts. We've moved now so far beyond that that
Speaker 1: in any context, in a commercial context, in a consumer context,
Speaker 1: in any context. The Supreme Court now seems to think
Speaker 1: that arbitration agreements have some special protected status above all
Speaker 1: other contractual provisions. And that's the only way you can
Speaker 1: understand what's happening in this case and what happened in
Speaker 1: the argument. There's no other way to understand what was
Speaker 1: going on. I mean, even the liberal judges on the
Speaker 1: Court got lost in this debate about the Section three
Speaker 1: applied to substantive law. Is it a procedural question, is
Speaker 1: is a state law question? Is a federal question? None
Speaker 1: of that matters unless in the back of your mind
Speaker 1: you're saying to yourself arbitration agreements are special. Because if
Speaker 1: you don't say that, you don't get past Section two.
Speaker 1: And it's It's like me and my speeding ticket. Okay, sure,
Speaker 1: I used a turn signal and I changed lanes, but
Speaker 1: I was going a hundred four miles. It makes no
Speaker 1: sense that we're breaking these things down into these isolated components,
Speaker 1: except if you recognize that arbitration agreements are, you know,
Speaker 1: above the law. Thanks for being on the show. Mark.
Speaker 1: That's Mark riskin a partner Wolf Holdenstein, And that's it
Speaker 1: for this edition of The Bloomberg Law Show. Remember you
Speaker 1: can always get the latest legal news on our Bloomberg
Speaker 1: Law Podcast. You can find them on Apple Podcasts, Spotify,
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Speaker 1: week night at ten BM Wall Street Time. I'm June
Speaker 1: Grosso and you're listening to Bloomberg