WEBVTT - 39: What Al Franken Really Thinks About Deadlock in Washington 0:00:00.200 --> 0:00:02.560 There's like we have our own themes dong, so it's 0:00:02.560 --> 0:00:09.440 like now you can listen to it, I can just 0:00:09.440 --> 0:00:20.680 sing it. That was beautiful. Thanks hi, and welcome back 0:00:20.720 --> 0:00:23.959 to Bloomberg Benchmark, a show about the global economy. It 0:00:24.120 --> 0:00:28.520 is Thursday May. I'm Tory stillwell and economics reporter with 0:00:28.560 --> 0:00:31.880 Bloomberg News and I am holding it down solo today, 0:00:31.920 --> 0:00:33.879 but there are two special guests with me in the 0:00:33.960 --> 0:00:36.520 studio here in DC to help me talk about our 0:00:36.560 --> 0:00:40.000 topic for the day, which is all about the Supreme Court. 0:00:40.560 --> 0:00:44.280 With Donald Trump now the Republican Party's presumptive nominee for 0:00:44.280 --> 0:00:47.960 the presidency, the debate about the vacancy on the Supreme 0:00:48.000 --> 0:00:51.160 Court is ramping back up. As you may know, there's 0:00:51.200 --> 0:00:53.479 been an opening for the ninth seat on the highest 0:00:53.479 --> 0:00:56.960 court in the land ever since Associate Justice Antonin Scalia 0:00:57.280 --> 0:01:00.840 died in February, and in a nutshell, Democrats would like 0:01:00.880 --> 0:01:04.000 to fill out with Merrick Garland, picked by President Barack Obama, 0:01:04.080 --> 0:01:07.880 while Republicans believe whoever wins this year's election should get 0:01:07.920 --> 0:01:11.160 to fill the vacancy. One of the less looked at 0:01:11.200 --> 0:01:15.080 aspects of debate, though, is how this vacancy could affect 0:01:15.080 --> 0:01:18.520 the US economy's business sector. It's sort of a weird 0:01:18.560 --> 0:01:20.800 time for the economy right now, if you hadn't noticed. 0:01:21.120 --> 0:01:24.360 Where in the middle of an election season. So business 0:01:24.440 --> 0:01:27.959 leaders are are already wondering what sorts of new regulations 0:01:28.040 --> 0:01:31.560 might come down the pike. The Federal Reserve is deciding 0:01:31.680 --> 0:01:34.720 whether to raise interest rates again in June for the 0:01:34.800 --> 0:01:37.679 second time. And to top it all off, having a 0:01:37.760 --> 0:01:40.760 vacancy on the Supreme Court generates its own amount of 0:01:40.840 --> 0:01:44.119 uncertainty when businesses aren't quite sure how the Court will 0:01:44.200 --> 0:01:48.000 lean on different issues. So before we get too far 0:01:48.040 --> 0:01:51.240 into this, I'm going to introduce our guests. First off, 0:01:51.440 --> 0:01:55.480 we've got Senator Al Franken, the junior Democratic Senator from Minnesota. 0:01:56.040 --> 0:01:58.920 He is a member of the Senate Judiciary Committee and 0:01:59.040 --> 0:02:02.640 presided over the confirmation votes of Supreme Court Justices Sonya 0:02:02.720 --> 0:02:06.280 Soto Mayor and Elena Kagan, and you may also remember 0:02:06.360 --> 0:02:08.720 him from his days on Saturday Night Live in the 0:02:08.760 --> 0:02:13.400 seventies and eighties. Welcome, Senator, Thank you. But when I 0:02:13.440 --> 0:02:16.360 presided over those I was in the chair presiding. It 0:02:16.440 --> 0:02:20.280 was actually a coincidence that I ended up being in 0:02:20.320 --> 0:02:23.800 the chair when both Justice son of my heir and 0:02:24.080 --> 0:02:27.800 Justice Kagan were confirmed. It was it was neat. It 0:02:27.880 --> 0:02:29.520 was neat, you know. And I had just kind of 0:02:29.560 --> 0:02:33.240 gotten there with the son of mayor. And we've also 0:02:33.280 --> 0:02:36.160 got Greg's store here with us. Who is Bloomberg's rock 0:02:36.200 --> 0:02:38.880 star Supreme Court reporter. He has been with us since 0:02:40.320 --> 0:02:43.919 shortly after he graduated from Harvard Law. Welcome, Greg, I 0:02:44.000 --> 0:02:46.079 thank story good to be here. And I just want 0:02:46.080 --> 0:02:48.400 to say that I I asked to have the Supreme 0:02:48.440 --> 0:02:50.280 Court beat. It wasn't just given to me because it 0:02:50.320 --> 0:02:52.800 was the only thing Harvard Law school. So you were 0:02:52.960 --> 0:02:54.720 kind of like a lawyer kind of guy. I was 0:02:54.800 --> 0:02:58.200 kind of a lawyer. That's and you're a rock star, evidently, 0:02:58.800 --> 0:03:01.920 I think I think a metaphorical I actually have no 0:03:02.080 --> 0:03:07.280 musical talent. Well, let's jump in to sort of what's 0:03:07.280 --> 0:03:09.840 going on with the Supreme Court these days and how 0:03:09.880 --> 0:03:12.720 we got here. I feel like Greg gear pretty well 0:03:12.720 --> 0:03:18.160 equipped to walk us through the path here. Well. Justice 0:03:18.160 --> 0:03:21.440 Scalia was was really a kind of a conservative icon. 0:03:21.560 --> 0:03:24.239 He was really the kind of the anchor of the courts. 0:03:24.280 --> 0:03:28.720 Conservative wing believed in interpreting the Constitution and accordance with 0:03:28.720 --> 0:03:32.639 with the original meaning of its words, interpreted statutes very strictly, 0:03:33.160 --> 0:03:37.720 and when we're talking about business cases, very often ended 0:03:37.800 --> 0:03:42.920 up on the conservative side, corporate. But he he was. 0:03:43.280 --> 0:03:46.800 He was very often on business side. But so many 0:03:46.840 --> 0:03:50.320 Supreme Court cases don't divide along those lines. They are 0:03:50.360 --> 0:03:54.240 not the ideological cases that that we get in with, 0:03:54.440 --> 0:03:56.920 you know, abortion, affirmative action. You know, a lot of 0:03:56.920 --> 0:03:59.560 times they'll be seven to two decisions or nine nine 0:03:59.600 --> 0:04:02.240 to nothing decisions. But it's it's fair to say he 0:04:02.360 --> 0:04:04.760 more often than not was on the business side when 0:04:04.800 --> 0:04:08.880 it was say a business versus consumer dispute. Sure. What's 0:04:08.880 --> 0:04:11.760 interesting is I hear sometimes and I've heard this in 0:04:11.800 --> 0:04:16.840 the Judiciary Committee when we've been discussing their unwillingness to 0:04:16.920 --> 0:04:22.680 have hearings for for Garland. But I've heard um Scalia 0:04:23.360 --> 0:04:28.280 being by Republicans described as not an activist judge, and 0:04:28.320 --> 0:04:31.840 I found him very activist. Where did you find him? Activists? What? What? 0:04:32.040 --> 0:04:35.440 What areas are you thinking about? Well, for example, overturning 0:04:35.480 --> 0:04:39.240 the Voting Rights Act, This was something that I mean, 0:04:40.480 --> 0:04:46.280 my understanding of activists is a justice who will overturn 0:04:47.400 --> 0:04:52.520 uh for example, a law that passed the Senate unanimously 0:04:53.400 --> 0:04:56.640 as the Voting Rights Acted. Yes, that's the point. In 0:04:56.720 --> 0:05:01.320 other words, I you hear very often from republic alkins. Well, um, 0:05:01.360 --> 0:05:03.800 I you know, I don't want an actor. I don't 0:05:03.800 --> 0:05:06.560 want I want to, let you know, legislative bodies to 0:05:06.560 --> 0:05:09.159 make the laws, not the court. And so I want 0:05:09.200 --> 0:05:11.280 I don't wanna, you know, I want. I don't want 0:05:11.279 --> 0:05:14.320 an activist judge. I want to judge like Justice Scalia, 0:05:15.080 --> 0:05:18.640 who had such contempt for the Senate. He said that 0:05:18.720 --> 0:05:21.200 the Congress had passed the Voting Rights Act because of 0:05:21.240 --> 0:05:24.000 its name. You remember him saying that, because I'm sorry, 0:05:24.000 --> 0:05:26.640 because of it because of its name. Yes, because yes, 0:05:26.720 --> 0:05:28.560 in the arguments, he well to me that that was 0:05:28.600 --> 0:05:34.520 an incredibly telling remark, that he has such little regard 0:05:35.480 --> 0:05:41.560 for Congress. That Congress had virtually unanimously and it was 0:05:41.720 --> 0:05:44.200 unanimously in the Senate, or at least with no sent 0:05:45.160 --> 0:05:47.800 had voted for the Voting Rights Act, that that he 0:05:47.880 --> 0:05:51.960 voted overturned. But he said that, well, you know, with 0:05:52.000 --> 0:05:54.120 a name like the Voting Rights Act, they had to 0:05:54.160 --> 0:05:56.719 vote for it. They felt, you know, because they're stupid. 0:05:57.040 --> 0:05:59.480 I mean, it was it was so much contempt for 0:05:59.520 --> 0:06:05.560 Congress that to me, I don't understand when some of 0:06:05.640 --> 0:06:10.080 my Republican colleagues say that he was the opposite of 0:06:10.120 --> 0:06:12.799 an activist judge. To me, he was a very activist judge, 0:06:12.800 --> 0:06:14.600 and this has been an activist court as far as 0:06:14.600 --> 0:06:16.719 I'm concerned. I want to read it in for just 0:06:16.839 --> 0:06:19.360 a second so we can get to Merrick Garland, who 0:06:19.400 --> 0:06:22.280 I think is very interesting and we'd love to hear 0:06:22.320 --> 0:06:25.440 your thoughts on him as well. So Obama has nominated 0:06:25.480 --> 0:06:30.359 him to fill Scleeze vacancy, and it's unclear what's going 0:06:30.440 --> 0:06:32.960 to happen there. We're hearing a lot of different scenarios 0:06:32.960 --> 0:06:36.560 play out. And you've met with him, right, Yes, what 0:06:36.680 --> 0:06:40.479 were your impressions? He pretty much was what I had 0:06:40.560 --> 0:06:45.960 been totally was. He seemed like very smart, very um 0:06:46.120 --> 0:06:49.600 a good guy, just like you know when the administration 0:06:49.680 --> 0:06:54.160 called me before his appointment or before his nomination, uh 0:06:54.320 --> 0:06:56.599 saying you know, who do you want to see or 0:06:56.880 --> 0:06:59.320 I said, I I don't have a person, but i'd 0:06:59.320 --> 0:07:06.080 like someone who after hearings that the American people would say, 0:07:06.120 --> 0:07:10.080 I want nine of those. And what I asked him 0:07:10.080 --> 0:07:13.000 about he has been he has a reputation, he's chief 0:07:13.240 --> 0:07:17.800 judge of the m d C Circuit and which is 0:07:17.960 --> 0:07:21.360 essentially the second accord in the nation. And he has 0:07:21.440 --> 0:07:24.640 a reputation as being a consensus judge. And what I 0:07:24.680 --> 0:07:26.760 asked him about is how do you do that? How 0:07:26.760 --> 0:07:31.080 do you arrive at consensus? His approach was very sensible 0:07:31.200 --> 0:07:33.640 and very smart, and he just seems like a pretty 0:07:33.680 --> 0:07:39.040 brilliant by all um all accounts. He's a you know, 0:07:39.840 --> 0:07:43.560 Roberts said, when you disagree with him, you're in You're 0:07:43.560 --> 0:07:47.000 in bad You're not in a good position. So bipartisan 0:07:47.000 --> 0:07:53.040 appeal here, yeah, oron Hatch and or Orange Hatch had 0:07:53.120 --> 0:07:56.240 nice things to say about him earlier. He when there 0:07:56.280 --> 0:07:59.520 was another vacancy a number of years ago, or in 0:07:59.600 --> 0:08:03.520 Hatch uh suggested Mary Garland to somebody who could get bipartisans. 0:08:03.680 --> 0:08:06.480 What I understand is he said something recently about him 0:08:06.520 --> 0:08:11.080 before Omama made his pick, and he said that if 0:08:11.080 --> 0:08:13.480 he picked someone like Garland, that would that would be good. 0:08:14.680 --> 0:08:18.080 But he's expecting the president to pick some you know, 0:08:18.800 --> 0:08:22.560 liberal progressive lefty or something. And then I think he 0:08:22.600 --> 0:08:25.800 had to eat his words. So girl. It certainly has 0:08:25.840 --> 0:08:29.000 a reputation as a consensus builder and Senator I'm I'm 0:08:29.040 --> 0:08:31.800 interested to know, is that the kind of justice do 0:08:31.800 --> 0:08:33.559 you think we need on the Supreme Court now? And 0:08:33.600 --> 0:08:37.320 I'm sort of wondering is this plays out um. The Republicans, 0:08:37.040 --> 0:08:39.079 of course, have have said they didn't want to hold 0:08:39.080 --> 0:08:41.000 the hearing, don't want to bring up a vote, and 0:08:41.040 --> 0:08:43.560 they want to let the next president decide. Well, not necessarily. 0:08:43.559 --> 0:08:48.480 They've also said that if the Democrat wins, a number 0:08:48.520 --> 0:08:51.000 of them have said they would consider him in the 0:08:51.080 --> 0:08:55.000 Lame Duck. So on the one hand, and I you know, 0:08:55.040 --> 0:09:00.040 we have um executive sessions in the Judiciary Committee, and 0:09:00.600 --> 0:09:04.400 during these sessions, we've had a couple of sessions that 0:09:04.480 --> 0:09:08.160 were pretty much devoted to discussing this. And I would 0:09:08.160 --> 0:09:10.439 sit there to the whole session and listen to people, 0:09:10.480 --> 0:09:12.920 and I have my Republican colleagues come in and out, 0:09:13.920 --> 0:09:17.040 and a Republican would sit down and say, you know, 0:09:17.240 --> 0:09:20.640 the people have to decide, and so it should be 0:09:20.720 --> 0:09:23.960 the next uh next presidents. And then someone else would 0:09:23.960 --> 0:09:26.880 come in and go like, well, if the Democrat wins, 0:09:26.920 --> 0:09:29.760 I think we could take what we like Garland and 0:09:29.840 --> 0:09:32.000 we should take him up in the Lame Duck. And 0:09:32.000 --> 0:09:35.000 and I spoke and I said, well, my question is 0:09:35.840 --> 0:09:40.960 do you guys talk to each other, because this was 0:09:41.160 --> 0:09:45.800 they and evidently they don't because it was a completely 0:09:46.480 --> 0:09:49.800 contradictory stance they were taking. One. This is a matter 0:09:49.840 --> 0:09:52.240 of principle. Let the people decide. Now. I think that 0:09:52.400 --> 0:09:56.480 people did decide when they voted for to re elect 0:09:57.160 --> 0:10:00.839 President Obama in two thousand and twelve. The Constitution is 0:10:00.880 --> 0:10:05.040 pretty clear that the term is for four years. In 0:10:05.160 --> 0:10:13.199 February when that's when Justice Schoolly unfortunately died, scientists told 0:10:13.280 --> 0:10:16.560 us there were eleven months left in the president's term, 0:10:16.960 --> 0:10:20.400 you see. And then in the constitution is very clear 0:10:20.480 --> 0:10:24.480 that the president makes you know, we will nominate when 0:10:24.480 --> 0:10:28.200 there is a vacancy, and there was a vacancy. And 0:10:28.679 --> 0:10:33.480 then they kept citing the Biden rule or something, and 0:10:33.520 --> 0:10:36.760 the Biden rule they took a speech that Biden had 0:10:36.800 --> 0:10:40.760 given and took it completely out of context. He had 0:10:40.800 --> 0:10:45.160 said that if Bush this was in I think October. 0:10:45.720 --> 0:10:47.880 I believe it was in June of an election year 0:10:48.559 --> 0:10:52.280 without without a vacancy at the time. What I'm interested 0:10:52.280 --> 0:10:54.920 to know from you is, um, you know, if Hillary 0:10:54.920 --> 0:10:57.360 Clinton wins in November, I know you you hope she will, 0:10:57.800 --> 0:11:01.200 should she be free to nominate somebody other than Merrick Garland. 0:11:01.400 --> 0:11:03.960 Would you rather see somebody he? I mean, he's described 0:11:04.000 --> 0:11:06.560 as a moderate. He may well become the new kind 0:11:06.559 --> 0:11:09.360 of center justice on the Court if he's confirmed. Would 0:11:09.400 --> 0:11:12.440 you rather see somebody, um who is more like just 0:11:12.480 --> 0:11:15.480 to threat a name you've you've mentioned, Pam Carlin. Uh, 0:11:15.640 --> 0:11:19.400 somebody who is more of a kind of a more liberal, 0:11:19.880 --> 0:11:24.000 perhaps more ideological, or at least more interested in in 0:11:24.080 --> 0:11:28.840 kind of sweeping constitutional changes. Well, I think that begs 0:11:28.840 --> 0:11:33.440 the question whether Republicans will take up the Garland a 0:11:33.480 --> 0:11:37.640 nomination if if say Hillary wins, and a number of 0:11:37.640 --> 0:11:40.960 them had said they would, and I think that, uh, 0:11:41.000 --> 0:11:43.839 some of them are making the argument that, I mean, 0:11:43.840 --> 0:11:47.199 it would be Hillary's right to she'd be the president, 0:11:48.040 --> 0:11:50.720 and would you want to see her do that? Would 0:11:50.760 --> 0:11:54.600 you want to see her use this nomination to make 0:11:54.640 --> 0:11:56.880 more of a change on the Supreme Court? Well? I 0:11:57.200 --> 0:11:59.880 must say I really was impressed with Garland, so I 0:12:00.040 --> 0:12:04.600 wouldn't be terribly upset if she nominated him. I think 0:12:04.640 --> 0:12:08.920 he was a perfect nominee for this moment because he 0:12:09.120 --> 0:12:13.040 is a consensus builder, and I think he was actually 0:12:13.280 --> 0:12:15.720 following the Biden rule. If you listen to the Biden 0:12:15.880 --> 0:12:20.679 speech where he said if you just you, you know, 0:12:20.800 --> 0:12:24.319 if someone resigns, if someone games, he was really basically 0:12:24.360 --> 0:12:29.319 talking about adjustice gaming nos and resigning so that Bush 0:12:29.520 --> 0:12:35.840 could then nominate someone who you know, was very right wing. Well, 0:12:35.880 --> 0:12:38.120 then he said, don't do that. We won't take that 0:12:38.160 --> 0:12:41.160 person up. But if you come to us and if 0:12:41.200 --> 0:12:44.880 that situation happens and you we come up with some 0:12:45.000 --> 0:12:48.080 kind of consensus figure, then of course we'll take him up. 0:12:48.720 --> 0:12:54.040 It seems to me that there's a lot of deliberate 0:12:54.880 --> 0:13:01.560 It's not obfuscation, it's it's kind of misrepresentation of terms 0:13:01.640 --> 0:13:05.520 and of of certainly what the Vice president said then 0:13:06.280 --> 0:13:10.760 and again what kind of justice Scalia? Uh Scalia was 0:13:11.600 --> 0:13:15.559 So since there is so much deadlock on this issue, 0:13:16.480 --> 0:13:19.680 it seems like very likely we won't have a ninth 0:13:19.840 --> 0:13:23.800 justice before November. Maybe I think that part of this 0:13:24.000 --> 0:13:28.400 was the you know, Member Jerry Moran at a town 0:13:28.559 --> 0:13:32.280 meeting in Kansas said he thought we should take up 0:13:33.320 --> 0:13:37.840 Judge Garland and then uh, some moneyed interests on the 0:13:37.960 --> 0:13:42.880 right threatened him and said that if he continued with 0:13:42.920 --> 0:13:47.080 that stance, they would dump about ten million dollars to 0:13:47.160 --> 0:13:54.000 primary him and so he reversed his position, and so 0:13:54.640 --> 0:13:58.840 maybe after the primary season is all over, there won't 0:13:58.840 --> 0:14:02.480 be that kind of pressure perhaps these Republicans, but I 0:14:02.520 --> 0:14:05.560 think that it is very likely, yes, that we will 0:14:05.559 --> 0:14:09.360 not see them take up Darland. I think they'll pay 0:14:09.360 --> 0:14:11.920 a price for it. Given that, I think, I think 0:14:11.960 --> 0:14:16.920 the Republican candidates who are incumbents, who are in states 0:14:17.000 --> 0:14:21.760 like Hampshire and in Ohio may very well pay a 0:14:21.800 --> 0:14:26.240 price for that. Pennsylvania. Well, let's talk about then, how 0:14:26.360 --> 0:14:29.520 the court is operating now that there's the vacancy and 0:14:29.960 --> 0:14:32.960 it may not be filled for quite some time. Um. Greg, 0:14:33.000 --> 0:14:36.560 it's more likely that will have four four splits um. 0:14:36.600 --> 0:14:40.120 And we've had we've had we had already, and a 0:14:40.160 --> 0:14:45.520 couple of punts, yes, including a significant punt on the 0:14:45.600 --> 0:14:50.080 Obamacare and the requirement to have contraceptive coverage. And they've 0:14:50.080 --> 0:14:53.440 also got rulings on deck or their schedule to make 0:14:53.520 --> 0:14:58.600 rulings on cases of concerning affirmative action, immigration, Puerto Rico's debt, 0:14:59.120 --> 0:15:01.560 and all of these issues touch our economy in one 0:15:01.560 --> 0:15:04.760 way or another, whether it's you know, education which it 0:15:04.800 --> 0:15:08.720 gets income, etcetera. Um, whether it's immigration in the size 0:15:08.720 --> 0:15:12.400 of our labor force or effects on wages um or 0:15:12.920 --> 0:15:15.560 pretty goods debt, which we just had an episode about 0:15:15.600 --> 0:15:19.320 a few weeks ago on the podcast What Happens Then? 0:15:19.520 --> 0:15:22.440 How do how do business leaders know how to navigate 0:15:22.520 --> 0:15:25.120 this sort of situation where they're not really sure what's 0:15:25.120 --> 0:15:27.880 going to happen, what the what the ruling is going 0:15:27.920 --> 0:15:31.800 to be, or any any precedents that might come down. 0:15:31.840 --> 0:15:34.120 I mean, how do how does that play out? Well, 0:15:34.640 --> 0:15:36.240 of course you could say the same thing about the 0:15:36.240 --> 0:15:39.680 political situation right now, and so much of this is 0:15:39.720 --> 0:15:43.239 tied to who the next president is, who ultimately nominates 0:15:43.360 --> 0:15:47.880 the next justice. And there are also some significant business 0:15:48.000 --> 0:15:51.400 issues where you could see the court being has been 0:15:51.400 --> 0:15:53.880 divided four to four octously be five to four with 0:15:53.960 --> 0:15:56.440 Justice Scalia and and the next justice will make a 0:15:56.440 --> 0:15:59.440 big difference. So we can talk about things like class 0:15:59.440 --> 0:16:03.120 action law suits where uh, there was a five justice 0:16:03.160 --> 0:16:07.400 majority with Scali on the court to limit class action lawsuits. 0:16:07.960 --> 0:16:13.080 And we can talk about arbitration, arbitration, mandatory care a 0:16:13.080 --> 0:16:17.600 lot about yeah, where where the again the five majority 0:16:17.640 --> 0:16:21.440 has said we will enforce arbitration clauses between you know, 0:16:21.520 --> 0:16:26.000 your cell phone company and consumer. Are you know, probably 0:16:26.040 --> 0:16:29.880 between employers and employees, and those are areas where I 0:16:29.880 --> 0:16:32.200 think that that I think it sounds like the Senator 0:16:32.240 --> 0:16:35.880 agrees that it could be a big difference depending on who. 0:16:36.120 --> 0:16:40.720 We've had a whole bunch of five four decisions by 0:16:40.880 --> 0:16:45.920 uh this court and usually UM, you know, when you 0:16:46.040 --> 0:16:50.680 make big decisions that, especially ones that overturned precedent, then 0:16:51.280 --> 0:16:54.480 you usually want consensus. And so this has been I 0:16:54.520 --> 0:16:58.520 think an unusual court and and and an activist court 0:16:59.240 --> 0:17:02.120 UH in that that they've overturned a lot of precedent 0:17:02.720 --> 0:17:05.320 with five four margins, and they've done it in pretty 0:17:05.359 --> 0:17:09.439 hinky ways. As the citizens united, they decided on a 0:17:09.520 --> 0:17:13.359 question they weren't wasn't asked in the case and UH, 0:17:13.400 --> 0:17:16.840 and they did buy a five four margin. Now that 0:17:17.160 --> 0:17:20.080 it's four four, we're seeing a lot of uncertainty. And 0:17:20.119 --> 0:17:23.199 you've seen a lot of business saying we don't like this. 0:17:23.600 --> 0:17:26.640 We'd like to see you know, seeing a lot of 0:17:27.520 --> 0:17:32.360 letter you know, a letter from two corporate business lawyers 0:17:32.880 --> 0:17:35.439 that I saw a similar letter writing and saying we 0:17:35.480 --> 0:17:39.560 don't we don't like the vacancy. Our clients are asking 0:17:39.680 --> 0:17:43.960 us about this. Internationally, it may damage the way people 0:17:44.040 --> 0:17:46.639 perceive the U S and its ability to make decisions. 0:17:47.119 --> 0:17:49.119 But that is I mean, I think it's probably the 0:17:49.160 --> 0:17:53.440 same letter like to learn thirty seven lawyers. That's that 0:17:53.600 --> 0:17:56.560 number six in my head for some reason, but um, 0:17:56.800 --> 0:18:00.840 probably not right. But anyway, I think it's probably the 0:18:00.840 --> 0:18:07.760 same way. And you're seeing some uncertainty. Obviously when the 0:18:07.800 --> 0:18:11.960 circuits are divided. That's when things come to the Supreme Court. 0:18:12.040 --> 0:18:15.040 And then if you do a four four and either 0:18:15.720 --> 0:18:19.920 just stalemated four four or or in in this last 0:18:19.920 --> 0:18:23.720 case on the the birth control in a c A piece, 0:18:24.160 --> 0:18:28.560 actually go back and ask the circuits questions to resolve. 0:18:29.440 --> 0:18:33.160 It's very hinky, I think, and it's and I think 0:18:33.200 --> 0:18:35.679 it creates a lot of uncertainty, and it does create 0:18:36.320 --> 0:18:42.639 a certain issue with the international business in terms of 0:18:43.280 --> 0:18:47.600 is the US reliable? You mentioned Citizens United, and you've 0:18:47.600 --> 0:18:51.480 also talked about judicial restraint overturning precedents. Would you like 0:18:51.600 --> 0:18:54.560 to see that decision overturned? And is it important to 0:18:54.600 --> 0:18:57.399 you that Yeah, I think I think, uh, most of 0:18:57.400 --> 0:19:02.120 the activism to overturn it at this point, I don't 0:19:02.160 --> 0:19:06.240 think so, because I think it was a very improper, 0:19:07.160 --> 0:19:11.840 uh use of judicial activism then and Also, you'll remember 0:19:11.920 --> 0:19:16.840 that Kennedy in his in his majority opinion, said that 0:19:16.920 --> 0:19:22.600 this is great because now we'll have this disclosure happening 0:19:22.640 --> 0:19:26.399 because of the Internet. We'll have this disclose, immediate disclosure 0:19:26.520 --> 0:19:30.879 of who's giving money to what. Well, of course we 0:19:30.920 --> 0:19:34.560 don't have disclosure, so the way he envisioned it was 0:19:34.680 --> 0:19:39.280 with disclosure, and there's no disclosure. We had a vote 0:19:40.119 --> 0:19:42.600 several years ago where we this is when we had 0:19:42.640 --> 0:19:49.439 fifty nine Democrats and um forty one Republicans and it 0:19:49.560 --> 0:19:51.640 was skins and shirts on this folte. We we had 0:19:51.640 --> 0:19:55.320 to disclose that where you could disclose where you would 0:19:55.359 --> 0:19:59.800 have to disclose people gave money to these packs would 0:19:59.800 --> 0:20:04.080 have the disclose, and and every Republican vote to vote 0:20:04.080 --> 0:20:06.920 against it. I want to take a quick break, and 0:20:07.240 --> 0:20:09.840 when we come back, we'll go into some more questions 0:20:09.840 --> 0:20:14.040 about the court. I'm particularly interested to know whether there 0:20:14.119 --> 0:20:16.439 is any good that can come out of just having 0:20:16.480 --> 0:20:19.520 eight justices on the court after we come back from 0:20:19.520 --> 0:20:35.520 this break. All right, so we are back, and I 0:20:35.560 --> 0:20:38.600 want to pick up right where we left off the 0:20:38.680 --> 0:20:42.600 good that can come out of having just eight justices. 0:20:43.440 --> 0:20:47.719 It's a contrarian opinion, Greg, what's the good. What can 0:20:47.800 --> 0:20:50.040 come out of this it's good? Well, they're not doing 0:20:50.080 --> 0:20:53.080 a whole lot of bad things, are they. The absence 0:20:53.080 --> 0:20:58.679 of bad is by definition good. I think the the 0:20:58.760 --> 0:21:02.320 argument is that, um, they are having to compromise more 0:21:02.400 --> 0:21:04.520 by the nature of of a justice is the fear 0:21:04.520 --> 0:21:07.760 of a four four split. They are deciding things narrowly. 0:21:08.280 --> 0:21:12.280 You know, one of the Garland said about how he 0:21:12.359 --> 0:21:17.159 gets consensus is decided narrowly. Yeah, yeah, I mean in 0:21:17.240 --> 0:21:19.879 one example this is this is not the siding narrowly, 0:21:20.480 --> 0:21:23.320 but rather not deciding at all. There was there was 0:21:23.359 --> 0:21:25.600 a case one of the four four is I suspect 0:21:25.680 --> 0:21:28.840 you're happy about. That is a case involving public sector 0:21:29.240 --> 0:21:33.240 unions and whether workers have a constitutional right to say 0:21:33.240 --> 0:21:36.560 we're not going to pay fees to help support the 0:21:36.720 --> 0:21:39.800 collective bargaining. And I think all all of us who 0:21:39.800 --> 0:21:42.040 covered the court a lot of other people thought the 0:21:42.040 --> 0:21:44.320 court was gonna say five to four there is a 0:21:44.320 --> 0:21:47.280 constitutional right there, and it would have been a ruling 0:21:47.280 --> 0:21:49.840 that would have really changed the change the rules for 0:21:49.880 --> 0:21:53.159 public sector unions. Instead, the court uh divides four to 0:21:53.240 --> 0:21:56.360 four and they leave the law in place where workers 0:21:56.440 --> 0:22:00.119 in In about twenty some odd states, uh can be 0:22:00.280 --> 0:22:03.639 required to pay those fees. So there was a case 0:22:04.640 --> 0:22:07.080 labor union fees, yes, um, and this is just public 0:22:07.080 --> 0:22:09.199 sector workers that we're talking about. But there was a 0:22:09.240 --> 0:22:12.800 case where, um, by only having eight justices, they didn't 0:22:12.840 --> 0:22:14.760 do something that would have been a really a you know, 0:22:14.880 --> 0:22:17.880 a major, a major shift in this country. It would 0:22:17.920 --> 0:22:20.359 have been it would have been again another five for 0:22:22.119 --> 0:22:27.640 big decision, overturning precedent. It would have been another activist decision. Uh. 0:22:27.680 --> 0:22:30.480 So I think that, Uh, yeah, I think there was 0:22:30.560 --> 0:22:35.480 As you know, basically, these unions do the bargaining even 0:22:35.520 --> 0:22:40.200 if you don't belong to the union, and UM, we're 0:22:40.240 --> 0:22:44.000 you know, collecting fees from uh the employees that they 0:22:44.040 --> 0:22:50.440 were bargaining on behalf of. And the uh you know, court, 0:22:50.760 --> 0:22:54.479 if if Scalley had been there, probably would have ruled 0:22:54.560 --> 0:22:58.000 that they can't do that, that the union can't collect 0:22:58.560 --> 0:23:02.320 fees for bargaining on behalf of these people even though 0:23:03.400 --> 0:23:06.359 they are the beneficiary of the bargaining. I could probably 0:23:06.400 --> 0:23:08.280 take off a whole long list of decisions that I 0:23:08.280 --> 0:23:11.560 think you probably disagree with over the past ten years 0:23:11.640 --> 0:23:14.359 or so that were decided five to four, and I 0:23:14.400 --> 0:23:16.560 suspect you would have been happier to have those be 0:23:16.600 --> 0:23:18.720 four to four. The Voting Rights Act as one example. 0:23:18.760 --> 0:23:20.720 I mean, most of the big decisions of the Roberts Court, 0:23:21.160 --> 0:23:24.359 when we think about the conservative decisions that they have issued, 0:23:24.400 --> 0:23:27.639 there are by and larger, perhaps even entirely five to 0:23:27.680 --> 0:23:30.560 four rulings. Yeah. And I think that was one of 0:23:30.560 --> 0:23:34.400 my my problems with it, which is when you do 0:23:34.640 --> 0:23:38.120 overturn precedent, I think you've got to be very careful, 0:23:38.160 --> 0:23:40.720 and to do it on five four basis something as 0:23:40.720 --> 0:23:45.080 big as cusins united something is some of the decisions 0:23:45.720 --> 0:23:49.240 on the Voting Rights Act we mentioned, but also on 0:23:49.720 --> 0:23:54.280 our arbitration on class actions and arbitration overriding the States. 0:23:54.320 --> 0:24:00.760 On that, I think we're very again activist pro business decisions. 0:24:01.480 --> 0:24:04.120 And Greg, you were telling me when we were sort 0:24:04.119 --> 0:24:07.560 of preparing for the show that the broader history of 0:24:07.600 --> 0:24:10.520 the Supreme Court, would you say that it leans more 0:24:10.640 --> 0:24:14.800 towards I guess pro business over the grand scheme of 0:24:14.840 --> 0:24:17.400 things or yeah. I think if you just look at 0:24:17.960 --> 0:24:20.159 using as as a kind of a convenient metric, the 0:24:20.200 --> 0:24:22.439 cases where the Chamber of Commerce has filed a brief 0:24:23.200 --> 0:24:24.919 as sort of a proxy for our case. You know, 0:24:25.000 --> 0:24:27.320 a business case where businesses on one side. This is 0:24:27.320 --> 0:24:31.639 the US Chamber of Right. Business has won over the past, 0:24:31.840 --> 0:24:33.280 you know, the time I've been covering the court, the 0:24:33.280 --> 0:24:36.920 past fifty and twenty years, they have certainly one uh 0:24:37.119 --> 0:24:39.400 more cases than they have lost. Maybe you know, close 0:24:39.440 --> 0:24:42.240 to two thirds of them I think is roughly probably 0:24:42.280 --> 0:24:44.639 probably the number, So that is fair. But not all 0:24:44.640 --> 0:24:46.880 of those have been five to four um those are 0:24:46.920 --> 0:24:49.000 it can be seven to two decisions. And there's actually 0:24:49.000 --> 0:24:52.960 one category of decisions that I find fascinating because Justice 0:24:53.000 --> 0:24:55.040 Slee is on the side you wouldn't expect them to 0:24:55.040 --> 0:24:58.479