WEBVTT - The Next Fight in College Admissions 0:00:03.240 --> 0:00:08.320 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:11.560 --> 0:00:14.800 When Harvard was arguing its case for affirmative action at 0:00:14.840 --> 0:00:18.439 the Supreme Court last October, Justice Neil Gorsitch brought up 0:00:18.480 --> 0:00:21.520 the preferences given to the children of alumni and wealthy 0:00:21.560 --> 0:00:23.400 donors in the admissions process. 0:00:24.040 --> 0:00:28.800 If it just gave up preferences for donors, children, legacies, 0:00:29.720 --> 0:00:34.920 and squash athletes, okay, or maybe those who rote crew, 0:00:35.720 --> 0:00:40.279 all of which tend to favor predominantly white children, and 0:00:40.320 --> 0:00:47.000 it could achieve whatever it deemed racial diversity, would it 0:00:47.040 --> 0:00:49.200 then be permitted to engage in raci consciousness. 0:00:49.600 --> 0:00:53.800 It's sometimes called affirmative action for white people, and it's 0:00:53.880 --> 0:00:57.400 the target of the next fight over college admissions. A 0:00:57.440 --> 0:01:00.640 few days after the Supreme Court struck down a firm action, 0:01:01.200 --> 0:01:05.399 three minority groups filed a federal civil rights complaint against Harvard, 0:01:05.840 --> 0:01:10.000 saying that legacy and donor admissions give an unfair advantage 0:01:10.040 --> 0:01:14.200 to the mostly white students and discriminate against students of color. 0:01:14.400 --> 0:01:17.880 Joining me to discuss this latest case is Audrey Anderson, 0:01:18.040 --> 0:01:22.240 who heads the higher education practice at Bessbarian Simms. Audrey 0:01:22.280 --> 0:01:25.920 the complaint cited records from Harvard showing that donor and 0:01:26.000 --> 0:01:29.440 legacy applicants are six to seven times more likely to 0:01:29.440 --> 0:01:33.160 be admitted and nearly seventy percent are white. Tell us 0:01:33.160 --> 0:01:34.440 about the allegations. 0:01:35.040 --> 0:01:40.200 So the complaint here is that the legacy preference that 0:01:40.520 --> 0:01:44.560 Harvard College gives and the donor preference, so that is 0:01:44.600 --> 0:01:48.440 that applicants who have a family member who graduated from 0:01:48.480 --> 0:01:51.920 Harvard or a family member who donated a very large 0:01:51.960 --> 0:01:55.520 amount of money to Harvard gets in the admissions process 0:01:55.560 --> 0:02:00.240 what Harvard calls a tip or special consideration that makes 0:02:00.280 --> 0:02:03.280 it much more likely that that applicant will be admitted 0:02:03.400 --> 0:02:10.160 to Harvard. So the complainants allege that that violates Title six, 0:02:10.240 --> 0:02:13.680 which is a federal law that makes it illegal to 0:02:13.720 --> 0:02:18.760 discriminate on the basis of race if you receive federal funding. 0:02:19.120 --> 0:02:23.840 More particularly, they say that it violates a regulation that 0:02:23.880 --> 0:02:27.160 the Department of Education has issued that says that you 0:02:27.639 --> 0:02:31.480 can't have a practice or a policy that has a 0:02:31.680 --> 0:02:36.600 disparate impact based on race. And they say that because 0:02:37.000 --> 0:02:40.760 most of the people who get the tip for donor 0:02:41.000 --> 0:02:45.800 or legacy interests are white, the donor legacy tips have 0:02:45.919 --> 0:02:52.160 a disproportionate impact negative impact on minorities, and so it 0:02:52.240 --> 0:02:54.960 violates this regulation under Title six. 0:02:55.480 --> 0:02:58.480 Does it sound as if they have a strong case here. 0:02:58.760 --> 0:03:02.440 Well, it's a little ricky June, because there has not 0:03:02.680 --> 0:03:06.800 been a lot of action by the federal government to 0:03:07.080 --> 0:03:13.440 enforce their disparate impact regulations. Every agency in the federal 0:03:13.480 --> 0:03:18.200 government has regulations, like the Department of Education does to 0:03:18.919 --> 0:03:24.840 outlaw disparate impact discrimination. But the Supreme Court issued a 0:03:24.880 --> 0:03:29.520 decision in two thousand and one Alexander versus Sandoval, in 0:03:29.639 --> 0:03:34.400 which the Court held that a private party could not 0:03:34.560 --> 0:03:39.080 bring a lawsuit to enforce these kind of regulations under 0:03:39.080 --> 0:03:42.080 Title six. That's all the lawsuit was about. But in 0:03:42.200 --> 0:03:47.040 the opinion for the majority, Justice Scalia wrote that if 0:03:47.080 --> 0:03:50.520 the question were before him, he would find that these 0:03:50.600 --> 0:03:56.800 regulations outlined disparate impact were not authorized by the Statute 0:03:56.840 --> 0:04:00.000 itself by Title six, so he would find them uninformed 0:04:00.800 --> 0:04:03.920 by anyone in any event. But that question was not 0:04:04.000 --> 0:04:08.200 before him. So there's a real live question of are 0:04:08.240 --> 0:04:12.840 these disparate impact regulations legal? Are they authorized under the 0:04:12.880 --> 0:04:17.760 statutory language of Title six. The only thing Titles six 0:04:18.200 --> 0:04:24.760 outlaws is intentional discrimination intentionally using race. So in the 0:04:25.040 --> 0:04:30.080 affirmative action cases Harvard was intentionally using race as a factor. Here, 0:04:30.480 --> 0:04:35.720 they're not intentionally using race. They're using legacy and donor status, 0:04:36.200 --> 0:04:39.200 which has an impact based on race, but they're not 0:04:39.800 --> 0:04:41.400 looking at race when they're doing it. 0:04:42.080 --> 0:04:46.080 Are these groups looking for or asking for color blind 0:04:46.120 --> 0:04:50.919 admissions or preferences for minority applicants. 0:04:51.560 --> 0:04:54.640 Well, all they're looking for in this complaint is stop 0:04:54.839 --> 0:04:59.440 using legacy and donor preferences. I mean, what's really interesting 0:04:59.720 --> 0:05:03.880 is that that in the lawsuit everybody talked about legacy 0:05:03.920 --> 0:05:07.799 and donor preferences along with two other preferences that Harvard 0:05:07.920 --> 0:05:13.599 uses athlete preferences and preferences for applicants who have family 0:05:13.600 --> 0:05:17.120 members who work at Harvard. This complaint does not attack 0:05:17.200 --> 0:05:21.320 the athlete's preference or the preference for employees of Harvard, 0:05:21.760 --> 0:05:24.240 only a tax these other two. Now, maybe that's because 0:05:24.480 --> 0:05:28.400 there's no disparate impact based on race for the athlete preference, 0:05:28.680 --> 0:05:30.760 though at Harvard I believe there is. I believe that 0:05:30.760 --> 0:05:36.040 that probably primarily helps white students as well at Harvard 0:05:36.240 --> 0:05:39.560 because they have so many sports that are not football. 0:05:39.960 --> 0:05:44.160 So what I think this complaint is really about is 0:05:44.240 --> 0:05:47.719 just a way to put more political pressure on Harvard 0:05:47.920 --> 0:05:52.040 and other highly selective institutions to get rid of their 0:05:52.320 --> 0:05:58.599 donor and legacy preferences, something that some institutions have already done, 0:05:59.000 --> 0:06:02.080 and that I think there's a lot of political pressure 0:06:02.320 --> 0:06:06.320 on places like Harvard and all other selective institutions that 0:06:06.520 --> 0:06:10.040 say they want to racially diverse student body. This is 0:06:10.240 --> 0:06:13.679 one preference they can get rid of that should help 0:06:13.839 --> 0:06:16.920 a little bit get them more racially diverse student bodies. 0:06:17.360 --> 0:06:20.719 And it's a little bit hard for the average person 0:06:20.760 --> 0:06:24.960 to understand why anybody would get a preference because they 0:06:25.200 --> 0:06:27.960 are a legacy. They understand why you get a preference 0:06:28.000 --> 0:06:30.039 if your family member gave a lot of money, but 0:06:30.120 --> 0:06:32.400 it doesn't make anybody feel very good. 0:06:33.080 --> 0:06:37.720 Some schools like the University of California, Amherst College, Johns 0:06:37.720 --> 0:06:42.800 Hopkins University, and MIT have already gotten rid of legacy admissions. 0:06:43.160 --> 0:06:45.480 Has that improved the diversity at those schools. 0:06:46.440 --> 0:06:49.760 I think that the research and the evidence that was 0:06:49.800 --> 0:06:54.479 in the Harvard case showed that it might marginally help 0:06:55.080 --> 0:06:58.560 just a little bit to get a more racially diversed 0:06:58.560 --> 0:07:01.520 class if you got rid of of these preferences. So 0:07:01.600 --> 0:07:04.400 we're talking, you know, it might help you by one 0:07:04.440 --> 0:07:08.560 percent or less, so it's not an overwhelmingly helpful thing. 0:07:08.720 --> 0:07:11.120 But I think that in light of the affirmative action 0:07:11.240 --> 0:07:13.679 cases from last week, schools are going to be looking 0:07:13.720 --> 0:07:17.720 for everything they can do that's not race conscious, that 0:07:17.760 --> 0:07:20.760 they can do to up their racial diversity. 0:07:21.200 --> 0:07:25.240 The complaint cited the Supreme Court ruling on Affirmative Action 0:07:25.800 --> 0:07:29.200 and quoted college admissions are zero sum, and a benefit 0:07:29.240 --> 0:07:33.560 provided to some applicants but not to others necessarily advantages 0:07:33.640 --> 0:07:37.200 the former at the expense of the latter. And in 0:07:37.240 --> 0:07:43.840 the oral arguments, Justice Neil Gorsich suggested eliminating legacy preferences. 0:07:44.240 --> 0:07:46.280 But does any of that mean that if this case 0:07:46.320 --> 0:07:49.360 came to the Supreme Court that the Court would rule 0:07:49.400 --> 0:07:50.600 against preferences. 0:07:51.160 --> 0:07:55.720 No, and it's because these preferences are not based on race. 0:07:55.880 --> 0:07:59.720 They have a disparate impact based on race. But if 0:07:59.720 --> 0:08:02.800 this came to the Supreme Court, I believe that six 0:08:02.920 --> 0:08:07.960 members of the Supreme Court would instead say this regulation 0:08:08.360 --> 0:08:12.320 that the Department of Education and every other agency in 0:08:12.360 --> 0:08:16.000 the federal government has that prohibits rules that have a 0:08:16.120 --> 0:08:20.440 disparate impact based on race. That regulation is not allowed 0:08:20.520 --> 0:08:23.239 by the text of Title six. The text of Title 0:08:23.320 --> 0:08:28.600 six only prohibits intentional discrimination, So you know, Gorsich would 0:08:28.600 --> 0:08:32.800 probably say these legacy preferences are just crazy for any 0:08:32.800 --> 0:08:35.640 school that says it also wants to be racially diverse. 0:08:35.920 --> 0:08:38.920 But the Supreme Court doesn't have the ability to strike 0:08:39.000 --> 0:08:41.559 down things that private parties do just because they think 0:08:41.559 --> 0:08:42.280 they're crazy. 0:08:42.600 --> 0:08:45.600 This is about federal funds. Do you know how much 0:08:45.640 --> 0:08:48.839 Harvard gets and whether if it loses the federal funds 0:08:48.880 --> 0:08:51.679 it could make that up in donor contributions. 0:08:52.120 --> 0:08:54.280 They would not take that risk. I don't know how 0:08:54.360 --> 0:08:57.200 much they get in federal funds. You know, it's at 0:08:57.280 --> 0:09:00.840 least hundreds of millions of dollars in research funding that 0:09:00.920 --> 0:09:04.600 Harvard gets, So it's a huge amount of money. And 0:09:05.120 --> 0:09:10.160 what people don't understand about donor funds is that when 0:09:10.200 --> 0:09:15.280 donors give money to a college, they virtually always do 0:09:15.400 --> 0:09:20.080 that with restrictions. I'm giving Harvard this money because I 0:09:20.120 --> 0:09:25.520 want Harvard to use it for scholarships for these kinds 0:09:25.520 --> 0:09:30.439 of students. I want Harvard to use it for cancer research. 0:09:31.080 --> 0:09:34.600 I want Harvard to use it to build this kind 0:09:34.640 --> 0:09:38.120 of a building. And when those restrictions are put on 0:09:38.200 --> 0:09:43.160 the money, Harvard cannot then use the money for another purpose. 0:09:43.800 --> 0:09:47.840 Harvard usually cannot use the funds that are earned on 0:09:47.960 --> 0:09:52.600 that money for another purpose. So Harvard has a huge 0:09:52.920 --> 0:09:57.719 endowment that spins off huge amounts of money, but they 0:09:57.800 --> 0:10:00.800 can't just use it for anything they want to use 0:10:00.840 --> 0:10:03.480 it for. They have to use it for the purposes 0:10:03.600 --> 0:10:07.360 that the donors put on those funds. And if you 0:10:07.400 --> 0:10:09.400 think about it, and you're one of the people who 0:10:09.480 --> 0:10:12.400 gave that money, that makes a whole lot of sense. 0:10:12.520 --> 0:10:15.360 If you gave your money for a particular purpose, you 0:10:15.440 --> 0:10:18.360 don't want the college to then just be able to 0:10:18.480 --> 0:10:22.479 use it for something else that they decide is more important. 0:10:22.840 --> 0:10:26.000 This complaint was file with the Department of Education's Office 0:10:26.040 --> 0:10:28.360 for Civil Rights. What happens next. 0:10:28.720 --> 0:10:31.760 What happened next is the Office for Civil Rights will 0:10:31.760 --> 0:10:34.479 decide whether or not it wants to open an investigation 0:10:34.640 --> 0:10:39.160 of this complaint. These things are usually not public. Usually 0:10:39.400 --> 0:10:43.480 what happens is just that ocr will reach out to 0:10:43.559 --> 0:10:47.760 Harvard and say that they've received a complaint and they'd 0:10:47.840 --> 0:10:51.560 like to get some information from Harvard to determine whether 0:10:51.640 --> 0:10:54.280 or not the complaint has any validity. One of the 0:10:54.280 --> 0:10:57.120 most interesting things about this is that these groups said 0:10:57.120 --> 0:10:59.840 they were filing a complaint. Many people think that it's 0:11:00.120 --> 0:11:03.520 lawsuit when it's not, and so now there's an expectation 0:11:03.760 --> 0:11:06.760 that this is all going to be public. Usually these 0:11:06.760 --> 0:11:11.000 things are completely private until maybe the end when the 0:11:11.160 --> 0:11:14.160 Office for Civil Rights announces that they've entered into some 0:11:14.240 --> 0:11:16.160 kind of a settlement agreement. And this is what the 0:11:16.160 --> 0:11:20.400 Institution has decided to do rather than be found to 0:11:20.840 --> 0:11:24.320 be in violation of Title six and be fined by 0:11:24.360 --> 0:11:26.960 the government. It's a little weird with this because there's 0:11:26.960 --> 0:11:30.199 so much information already in the public record from the lawsuit, 0:11:30.520 --> 0:11:34.480 and ocr may decide that that's just enough information for 0:11:34.520 --> 0:11:36.560 them and they don't want anything additional. 0:11:36.760 --> 0:11:37.880 But we'll have to see. 0:11:38.280 --> 0:11:43.000 Are colleges and universities struggling to figure out how they 0:11:43.080 --> 0:11:46.840 can get a diverse student body in light of the 0:11:46.920 --> 0:11:50.600 Supreme Court decision? Or is the only opening, you know, 0:11:50.640 --> 0:11:54.080 the sort of loophole where it says students can use 0:11:54.160 --> 0:11:58.679 college essays to describe their experiences as a minority. 0:11:59.000 --> 0:12:01.600 I think that schools will be doing a lot of 0:12:01.640 --> 0:12:04.200 work and this is going to be something that plays 0:12:04.240 --> 0:12:07.520 out over the coming years. I believe June and there 0:12:07.559 --> 0:12:10.559 will be a lot of litigation over the coming years 0:12:10.600 --> 0:12:15.360 for things that colleges and universities do that will be 0:12:15.600 --> 0:12:20.040 challenged by folks who say, well, that's just a proxy 0:12:20.080 --> 0:12:22.920 for race, because schools won't be able to do things 0:12:23.000 --> 0:12:27.600 that are just a proxy for using race. So they can't, 0:12:28.000 --> 0:12:31.640 as the Chief Justice said in his opinion, you can't 0:12:32.080 --> 0:12:35.000 use what somebody says in their essay just to say, oh, 0:12:35.080 --> 0:12:37.440 now we know this person is of this racial group, 0:12:37.480 --> 0:12:40.520 who are going to give them a plus? It really 0:12:40.600 --> 0:12:43.120 has to be that, oh, this person in their essay 0:12:43.760 --> 0:12:49.680 really wrote very movingly and convincingly about how their racial 0:12:49.800 --> 0:12:54.840 background affected their life, and that kind of experience someone 0:12:54.960 --> 0:12:59.480 has is going to add to our class. If somebody 0:12:59.559 --> 0:13:03.280 just wrote it and their essay and their first sentence, hi, 0:13:04.040 --> 0:13:09.240 I'm an Hispanic woman, and then all the rest of 0:13:09.280 --> 0:13:13.720 their essay was about their English class but had nothing 0:13:13.760 --> 0:13:16.360 to do with their background of being an Hispanic woman, 0:13:16.480 --> 0:13:19.560 and that person, it was shown, got a tip for 0:13:19.760 --> 0:13:23.400 their race. That would be a proxy for race, and 0:13:23.480 --> 0:13:25.960 you can't do that. What schools are going to end 0:13:26.040 --> 0:13:28.760 up doing now, I think some of them are going 0:13:28.800 --> 0:13:32.240 to go back and say, Okay, let's look very deeply 0:13:32.320 --> 0:13:36.240 at our mission. What is it that we are really 0:13:36.400 --> 0:13:41.280 trying to do in our education at our institution? What 0:13:41.480 --> 0:13:45.320 are our goals? What is our mission? And in looking 0:13:45.360 --> 0:13:47.640 at that and looking at the kind of students that 0:13:47.840 --> 0:13:52.320 we think are best for our institution, what are the measures, 0:13:52.400 --> 0:13:55.280 what are the things? What are the traits that are 0:13:55.360 --> 0:13:59.400 really going to be best for the students that are 0:13:59.440 --> 0:14:03.680 going to to succeed at our college or university. When 0:14:03.720 --> 0:14:06.920 most schools do that, it's going to be hard to say, well, 0:14:07.000 --> 0:14:09.800 somebody whose parents gave a lot of money to the 0:14:09.840 --> 0:14:12.800 school has a kind of traits that we really wanted 0:14:12.840 --> 0:14:15.880 our university. But I'm talking here about the schools that 0:14:15.960 --> 0:14:19.160 really have the ability to do that, who are very selective, 0:14:19.160 --> 0:14:22.520 who already have a large endowment. Most schools in the 0:14:22.760 --> 0:14:26.040 United States are facing a whole different problem, which is 0:14:26.080 --> 0:14:30.040 that they are looking at a demographic enrollment cliff where 0:14:30.080 --> 0:14:33.200 the numbers of people who are of college age is 0:14:33.320 --> 0:14:36.080 dropping off significantly and they're just going to have to 0:14:36.080 --> 0:14:38.560 fill seats. So the other thing we have to keep 0:14:38.560 --> 0:14:41.360 in mind in all of this, even with all the 0:14:41.440 --> 0:14:45.359 concern that is being expressed for schools that are selective 0:14:45.400 --> 0:14:48.280 and do want to have racially diverse student bodies. Is 0:14:48.320 --> 0:14:52.760 that most people in America are getting a great college 0:14:52.840 --> 0:14:58.080 education at places that aren't thinking about or worrying about 0:14:58.080 --> 0:15:00.880 this at all, and that are just admits students and 0:15:00.920 --> 0:15:04.600 giving them a great education. So the elite institutions are 0:15:04.680 --> 0:15:08.080 certainly important, but in terms of kind of driving our 0:15:08.120 --> 0:15:14.240 economy forward and our country forward for most college students, 0:15:14.280 --> 0:15:15.200 this as a sideshow. 0:15:15.600 --> 0:15:18.400 Thanks for being on the show, Audrey. That's Audrey Anderson 0:15:18.480 --> 0:15:23.480 of Bess, Berry and Sims. Republicans may have blocked President 0:15:23.480 --> 0:15:26.840 Biden from enacting much of his policy agenda, but there's 0:15:26.920 --> 0:15:29.720 one area where they haven't been able to hold him back, 0:15:30.120 --> 0:15:33.400 his drive to reshape the courts. With one hundred and 0:15:33.440 --> 0:15:38.480 thirty six federal judges confirmed, Biden has now surpassed Presidents Trump, Obama, 0:15:38.560 --> 0:15:41.840 and George W. Bush up to this point in their presidencies, 0:15:42.360 --> 0:15:45.360 and two thirds of those nominees are women and two 0:15:45.400 --> 0:15:48.720 thirds are people of color. I'm joined by an expert 0:15:48.720 --> 0:15:51.760 in the federal judiciary, Carl Tobias, a professor at the 0:15:51.840 --> 0:15:56.320 University of Richmond Law School. You know, tell us about 0:15:56.920 --> 0:16:01.280 Biden's record on judicial nominations and where it stands in 0:16:01.320 --> 0:16:04.040 relation to other presidents. 0:16:04.640 --> 0:16:08.560 Well, he still is very much ahead at this point 0:16:08.640 --> 0:16:12.040 in his presidency in terms of the total number of 0:16:12.400 --> 0:16:17.359 appellate and district judges whom he has nominated and confirmed. 0:16:18.160 --> 0:16:20.720 For the district courts, there are one hundred who have 0:16:20.800 --> 0:16:24.760 been confirmed, which is a milestone, and then there are 0:16:24.880 --> 0:16:30.600 thirty five confirmed for the appellate courts. Trump at this 0:16:30.720 --> 0:16:33.640 point in his presidency had done a little better on 0:16:33.720 --> 0:16:36.240 the appellate ones, but of course he focused on those 0:16:36.360 --> 0:16:40.280 like a laser, and he had confirmed forty two at 0:16:40.360 --> 0:16:43.880 this point in his presidency, but only eighty four for 0:16:43.960 --> 0:16:47.960 the district So still Biden is ahead, and that includes 0:16:48.040 --> 0:16:53.720 Bush and President Obama. And so it's good in that sense. 0:16:53.760 --> 0:16:58.160 But what's so striking is diversity in terms of ethnicity, 0:16:58.680 --> 0:17:04.320 a gender, sexual orience, Haitian and especially experienced and ideology. 0:17:04.840 --> 0:17:10.840 And two thirds of the judges confirmed are women and 0:17:10.960 --> 0:17:15.440 two thirds are people of color, and that's just unprecedented 0:17:15.640 --> 0:17:19.520 in terms of records but also experience. So you have 0:17:20.040 --> 0:17:23.440 quite recently in New York and other places around the 0:17:23.480 --> 0:17:27.840 country California experiential diversity in the sense of being federal 0:17:27.840 --> 0:17:34.280 public defenders, state public defenders, or civil rights lawyers worked 0:17:34.320 --> 0:17:39.240 for the ACLU, and all kinds of other people who 0:17:39.400 --> 0:17:44.800 have less traditional types of practice recently, and you know, 0:17:44.880 --> 0:17:48.639 in modern times it's mostly been people who are former 0:17:48.760 --> 0:17:53.080 US attorneys or assistant US attorneys, prosecutors in the state system, 0:17:53.720 --> 0:17:58.679 and people from big law firms. But has changed that 0:17:59.080 --> 0:18:05.280 experiential qualification quite a bit with his nominees, especially on 0:18:05.320 --> 0:18:06.399 the Appeals Court. 0:18:06.600 --> 0:18:10.560 So what's ahead. I mean, he has a limited time 0:18:10.640 --> 0:18:14.119 left in its first term, perhaps his last term. I 0:18:14.119 --> 0:18:16.639 don't know what is the goal now. 0:18:17.440 --> 0:18:19.520 Well, I think it's to confirm as many people as 0:18:19.560 --> 0:18:25.120 possible before they stop the whole process, and that will 0:18:25.160 --> 0:18:27.959 happen at some point in twenty twenty four. But of 0:18:27.960 --> 0:18:32.040 course you can remember in twenty twenty I believe Trump 0:18:32.119 --> 0:18:35.200 went right up to the bitter end and actually confirmed 0:18:35.680 --> 0:18:39.240 thirteen people after the election. 0:18:39.480 --> 0:18:40.840 And a Supreme Court justice. 0:18:40.920 --> 0:18:44.200 I think, yes, it was a week before, but it 0:18:44.280 --> 0:18:47.440 was very late in his tenure, to be sure. So 0:18:47.920 --> 0:18:53.040 Biden has right now fourteen district nominees on the floor 0:18:53.080 --> 0:18:56.880 who are waiting votes for who are waiting Senate Judiciary 0:18:56.920 --> 0:19:01.359 Committee votes on seven twenty Later this month, two nominees 0:19:01.440 --> 0:19:05.840 awaiting hearings and four nominees have not been sent to 0:19:05.880 --> 0:19:08.520 the Senate yet and they would have hearings. So that's 0:19:08.560 --> 0:19:10.800 what I think we'll see in twenty twenty three, as 0:19:10.840 --> 0:19:14.280 well as three Pellet nominees who are on the floor 0:19:14.400 --> 0:19:18.880 waiting votes, and those may come before they break for August. 0:19:19.240 --> 0:19:21.840 So when they come back and after Labor Day, then 0:19:22.119 --> 0:19:24.399 I think they'll try to finish out and keep going 0:19:24.480 --> 0:19:26.560 and the White House will have more nominees. That's what 0:19:26.600 --> 0:19:30.040 they need now, and shar Durbin has promised every two 0:19:30.080 --> 0:19:32.119 weeks they're in session that they'll be a hearing. 0:19:32.880 --> 0:19:36.160 Have a lot of the votes been close votes, closely 0:19:36.200 --> 0:19:40.440 divided votes where all the Republicans voted against a nominee yes. 0:19:40.480 --> 0:19:42.800 There have been a number and there's a lot of 0:19:42.800 --> 0:19:46.160 locks extep voting on both sides. The Democrats have pretty 0:19:46.200 --> 0:19:50.639 much held together. Senator Mansion has voted no on a 0:19:50.680 --> 0:19:54.480 couple of nominees, but Senator Cinema has been voting with 0:19:54.560 --> 0:19:57.600 Democrats and all the rest of the Democrats have voted. 0:19:58.359 --> 0:20:01.640 Senator Feinstein has been there for most of the votes recently. 0:20:02.640 --> 0:20:06.400 That looks like it will continue that way, especially if 0:20:06.440 --> 0:20:11.080 it's a nominee who the Republicans find to be controversial, 0:20:11.200 --> 0:20:13.920 and there's some of those, and they've been quite close, 0:20:14.000 --> 0:20:17.359 some fifty forty nine votes and sometimes ties where the 0:20:17.440 --> 0:20:22.720 Vice president has broken the tie. There's been some bipartisanship, 0:20:23.240 --> 0:20:26.120 especially Senator Graham, who I think is the most frequent 0:20:26.600 --> 0:20:30.680 Republican to vote for Democrats because he believes in deference 0:20:30.680 --> 0:20:35.360 to the president when nominations come, and then Senators Murkowski 0:20:35.400 --> 0:20:39.000 and Collins quite often are voting with Graham. 0:20:39.280 --> 0:20:43.399 What's happening with the blue slips in red states and 0:20:43.520 --> 0:20:46.119 district court nominations, Well. 0:20:46.000 --> 0:20:51.520 That's a very good question, because there are a number 0:20:51.880 --> 0:20:57.000 of vacancies now, especially in states represented by two Republicans 0:20:57.320 --> 0:21:00.680 where there hasn't been a lot of movement, and some 0:21:00.720 --> 0:21:03.399 of these have been around for a couple of years, 0:21:03.560 --> 0:21:05.320 and I think the White House is trying to work 0:21:05.359 --> 0:21:09.600 with those senators and senators have engaged to some extent 0:21:09.720 --> 0:21:13.680 and there have been some quite valuable efforts on the part, 0:21:13.800 --> 0:21:17.560 for example of the Indiana Senators, the Louisiana senators in 0:21:17.640 --> 0:21:20.720 red states, the Idaho senators had a very successful nominee 0:21:20.760 --> 0:21:24.280 who easily went through on a strong bipartisan vote. But 0:21:24.400 --> 0:21:28.560 there are other places. For example, Texas has a number 0:21:28.600 --> 0:21:31.720 of district vacancies that need to be filled, I think 0:21:31.800 --> 0:21:35.400 six or eight and they're all emergencies. Florida has four 0:21:35.480 --> 0:21:38.639 emergency vacancies I think in the Southern district alone, and 0:21:38.760 --> 0:21:42.200 there hasn't been much cooperation there. I think the Texas Senators, 0:21:42.240 --> 0:21:44.720 though Cornyan has said, are working with the White House, 0:21:45.000 --> 0:21:48.000 so hopefully that will work in there's a nominee for 0:21:48.119 --> 0:21:52.119 the fifth Circuit named Ramirez, and she will have strong 0:21:52.240 --> 0:21:54.800 bipartisan support, had a great hearing. But there are a 0:21:54.840 --> 0:21:57.840 number of other states too, Missouri and quite a few 0:21:57.840 --> 0:22:00.640 red states where it just doesn't seem to be much 0:22:00.680 --> 0:22:04.560 back and forth between the White House and the home 0:22:04.600 --> 0:22:07.280 state senators. And I think the White House will be flexible. 0:22:07.440 --> 0:22:10.119 I mean, I think they will try to work with 0:22:10.200 --> 0:22:14.959 the red state senators to reach some consensus about nominees, 0:22:15.000 --> 0:22:19.360 and that's happened in certain situations. For example, magistrate judges 0:22:19.440 --> 0:22:24.879 are often considered to be very competent and not terribly political, 0:22:24.960 --> 0:22:28.040 and that has some appeal. They also have nominated a 0:22:28.119 --> 0:22:31.760 number of prosecutors in the federal system and state systems. 0:22:31.960 --> 0:22:35.639 GOP members are more favorably inclined to those nominees. So 0:22:36.040 --> 0:22:38.439 there have been some breakthroughs, but I think we're going 0:22:38.480 --> 0:22:41.520 to see that at some point they're going to run 0:22:41.600 --> 0:22:45.239 out of a blue state nominees. But even there are 0:22:45.280 --> 0:22:47.960 some and you have two home state Democrats and they 0:22:48.000 --> 0:22:51.200 can't agree on who the White House should nominate. That 0:22:51.440 --> 0:22:53.320 you know shouldn't happen, So. 0:22:53.280 --> 0:22:57.440 Carl, there have been a lot of ethical questions surrounding 0:22:57.480 --> 0:23:01.639 the Supreme Court in light of the revelation about Justice 0:23:01.640 --> 0:23:06.919 Clarence Thomas and his relationship with a Republican mega donor, 0:23:07.000 --> 0:23:11.040 and then Justice Alito and his relationship. But the justices 0:23:11.080 --> 0:23:15.000 went off on vacation without doing anything about it. Can 0:23:15.080 --> 0:23:19.320 anything be done if the justices themselves won't adopt a 0:23:19.359 --> 0:23:20.280 code of ethics? 0:23:20.840 --> 0:23:24.600 Well, I believe the Democrats are moving on that front. 0:23:24.640 --> 0:23:30.159 There was a hearing in June before Senator Whitehouse's sub committee, 0:23:30.200 --> 0:23:34.560 and there is a bill in to try to move 0:23:34.600 --> 0:23:40.640 the court towards refusal requirements and other ethical standards. And 0:23:41.080 --> 0:23:43.679 one argument that's made which seems to have a lot 0:23:43.720 --> 0:23:47.400 of validity is twenty at USC for fifty five governs, 0:23:47.480 --> 0:23:51.679 conflicts of interest for all lower federal court judges, including 0:23:52.160 --> 0:23:57.200 magistrate judges and district judges and appellate judges and bankruptcy judges, 0:23:57.480 --> 0:24:00.840 and those judges all have to recuse. There's a conflict. 0:24:01.000 --> 0:24:05.879 But the justices have insisted so far on not having 0:24:05.920 --> 0:24:09.680 that code of conduct or adopting it, and there's real 0:24:09.760 --> 0:24:13.040 concern about that, and so this legislation, I think, would 0:24:13.160 --> 0:24:17.120 impose some requirements, and for example, you could follow complaints 0:24:17.119 --> 0:24:21.760 and then there would be a random five circuit judges 0:24:21.800 --> 0:24:25.280 who would rule on that. I think Republicans have raised 0:24:25.280 --> 0:24:28.960 some questions about separation of powers in that context, because 0:24:29.240 --> 0:24:31.919 they consider the court to be a separate branch. But 0:24:32.680 --> 0:24:36.640 of course there are all kinds of ways in which 0:24:36.720 --> 0:24:42.960 Congress does at least fund the various parts of the 0:24:43.040 --> 0:24:47.200 court system, and so I think there's a feeling that 0:24:47.280 --> 0:24:51.440 the Congress can legislate. And of course, what would be best, 0:24:51.480 --> 0:24:53.639 I think, is if the justices came around to the 0:24:53.720 --> 0:24:57.920 view that they should have similar ethics requirements to those 0:24:58.520 --> 0:25:01.320 imposed on the lower court judges. And I think that 0:25:01.359 --> 0:25:04.600 would be the best solution. But we'll see. I don't 0:25:04.680 --> 0:25:07.120 know that it's going to pass in the House, even 0:25:07.119 --> 0:25:09.719 if it gets through the Senate, but at least it 0:25:09.760 --> 0:25:13.159 is some discussion going on Senate and some legislation, and 0:25:13.200 --> 0:25:16.800 they had I think fairly constructive hearing, but we'll see. 0:25:17.000 --> 0:25:20.359 Thanks Carl. That's Professor Carl Tobias of the University of 0:25:20.440 --> 0:25:23.240 Richmond School of Law. And that's it for this edition 0:25:23.280 --> 0:25:25.920 of The Bloomberg Law Show. Remember you can always get 0:25:25.920 --> 0:25:29.080 the latest legal news on our Bloomberg Law Podcast. You 0:25:29.119 --> 0:25:33.200 can find them on Apple Podcasts, Spotify, and at www 0:25:33.320 --> 0:25:37.560 dot bloomberg dot com slash podcast Slash Law, and remember 0:25:37.640 --> 0:25:40.600 to tune into The Bloomberg Law Show every weeknight at 0:25:40.640 --> 0:25:44.080 ten pm Wall Street Time. I'm June Grosso and you're 0:25:44.200 --> 0:25:45.399 listening to Bloomberg