Latest / Trumponomics / 39: What Al Franken Really Thinks About Deadlock in Washington

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39: What Al Franken Really Thinks About Deadlock in Washington · Trumponomics

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Speaker 1: There's like we have our own themes dong, so it's
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Speaker 1: like now you can listen to it, I can just
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Speaker 1: sing it. That was beautiful. Thanks hi, and welcome back
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Speaker 1: to Bloomberg Benchmark, a show about the global economy. It
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Speaker 1: is Thursday May. I'm Tory stillwell and economics reporter with
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Speaker 1: Bloomberg News and I am holding it down solo today,
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Speaker 1: but there are two special guests with me in the
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Speaker 1: studio here in DC to help me talk about our
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Speaker 1: topic for the day, which is all about the Supreme Court.
0:40
Speaker 1: With Donald Trump now the Republican Party's presumptive nominee for
0:44
Speaker 1: the presidency, the debate about the vacancy on the Supreme
0:48
Speaker 1: Court is ramping back up. As you may know, there's
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Speaker 1: been an opening for the ninth seat on the highest
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Speaker 1: court in the land ever since Associate Justice Antonin Scalia
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Speaker 1: died in February, and in a nutshell, Democrats would like
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Speaker 1: to fill out with Merrick Garland, picked by President Barack Obama,
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Speaker 1: while Republicans believe whoever wins this year's election should get
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Speaker 1: to fill the vacancy. One of the less looked at
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Speaker 1: aspects of debate, though, is how this vacancy could affect
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Speaker 1: the US economy's business sector. It's sort of a weird
1:18
Speaker 1: time for the economy right now, if you hadn't noticed.
1:21
Speaker 1: Where in the middle of an election season. So business
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Speaker 1: leaders are are already wondering what sorts of new regulations
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Speaker 1: might come down the pike. The Federal Reserve is deciding
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Speaker 1: whether to raise interest rates again in June for the
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Speaker 1: second time. And to top it all off, having a
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Speaker 1: vacancy on the Supreme Court generates its own amount of
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Speaker 1: uncertainty when businesses aren't quite sure how the Court will
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Speaker 1: lean on different issues. So before we get too far
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Speaker 1: into this, I'm going to introduce our guests. First off,
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Speaker 1: we've got Senator Al Franken, the junior Democratic Senator from Minnesota.
1:56
Speaker 1: He is a member of the Senate Judiciary Committee and
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Speaker 1: presided over the confirmation votes of Supreme Court Justices Sonya
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Speaker 1: Soto Mayor and Elena Kagan, and you may also remember
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Speaker 1: him from his days on Saturday Night Live in the
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Speaker 1: seventies and eighties. Welcome, Senator, Thank you. But when I
2:13
Speaker 1: presided over those I was in the chair presiding. It
2:16
Speaker 1: was actually a coincidence that I ended up being in
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Speaker 1: the chair when both Justice son of my heir and
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Speaker 1: Justice Kagan were confirmed. It was it was neat. It
2:27
Speaker 1: was neat, you know. And I had just kind of
2:29
Speaker 1: gotten there with the son of mayor. And we've also
2:33
Speaker 1: got Greg's store here with us. Who is Bloomberg's rock
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Speaker 1: star Supreme Court reporter. He has been with us since
2:40
Speaker 1: shortly after he graduated from Harvard Law. Welcome, Greg, I
2:44
Speaker 1: thank story good to be here. And I just want
2:46
Speaker 1: to say that I I asked to have the Supreme
2:48
Speaker 1: Court beat. It wasn't just given to me because it
2:50
Speaker 1: was the only thing Harvard Law school. So you were
2:52
Speaker 1: kind of like a lawyer kind of guy. I was
2:54
Speaker 1: kind of a lawyer. That's and you're a rock star, evidently,
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Speaker 1: I think I think a metaphorical I actually have no
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Speaker 1: musical talent. Well, let's jump in to sort of what's
3:07
Speaker 1: going on with the Supreme Court these days and how
3:09
Speaker 1: we got here. I feel like Greg gear pretty well
3:12
Speaker 1: equipped to walk us through the path here. Well. Justice
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Speaker 1: Scalia was was really a kind of a conservative icon.
3:21
Speaker 1: He was really the kind of the anchor of the courts.
3:24
Speaker 1: Conservative wing believed in interpreting the Constitution and accordance with
3:28
Speaker 1: with the original meaning of its words, interpreted statutes very strictly,
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Speaker 1: and when we're talking about business cases, very often ended
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Speaker 1: up on the conservative side, corporate. But he he was.
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Speaker 1: He was very often on business side. But so many
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Speaker 1: Supreme Court cases don't divide along those lines. They are
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Speaker 1: not the ideological cases that that we get in with,
3:54
Speaker 1: you know, abortion, affirmative action. You know, a lot of
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Speaker 1: times they'll be seven to two decisions or nine nine
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Speaker 1: to nothing decisions. But it's it's fair to say he
4:02
Speaker 1: more often than not was on the business side when
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Speaker 1: it was say a business versus consumer dispute. Sure. What's
4:08
Speaker 1: interesting is I hear sometimes and I've heard this in
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Speaker 1: the Judiciary Committee when we've been discussing their unwillingness to
4:16
Speaker 1: have hearings for for Garland. But I've heard um Scalia
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Speaker 1: being by Republicans described as not an activist judge, and
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Speaker 1: I found him very activist. Where did you find him? Activists? What? What?
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Speaker 1: What areas are you thinking about? Well, for example, overturning
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Speaker 1: the Voting Rights Act, This was something that I mean,
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Speaker 1: my understanding of activists is a justice who will overturn
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Speaker 1: uh for example, a law that passed the Senate unanimously
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Speaker 1: as the Voting Rights Acted. Yes, that's the point. In
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Speaker 1: other words, I you hear very often from republic alkins. Well, um,
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Speaker 1: I you know, I don't want an actor. I don't
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Speaker 1: want I want to, let you know, legislative bodies to
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Speaker 1: make the laws, not the court. And so I want
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Speaker 1: I don't wanna, you know, I want. I don't want
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Speaker 1: an activist judge. I want to judge like Justice Scalia,
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Speaker 1: who had such contempt for the Senate. He said that
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Speaker 1: the Congress had passed the Voting Rights Act because of
5:21
Speaker 1: its name. You remember him saying that, because I'm sorry,
5:24
Speaker 1: because of it because of its name. Yes, because yes,
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Speaker 1: in the arguments, he well to me that that was
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Speaker 1: an incredibly telling remark, that he has such little regard
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Speaker 1: for Congress. That Congress had virtually unanimously and it was
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Speaker 1: unanimously in the Senate, or at least with no sent
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Speaker 1: had voted for the Voting Rights Act, that that he
5:47
Speaker 1: voted overturned. But he said that, well, you know, with
5:52
Speaker 1: a name like the Voting Rights Act, they had to
5:54
Speaker 1: vote for it. They felt, you know, because they're stupid.
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Speaker 1: I mean, it was it was so much contempt for
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Speaker 1: Congress that to me, I don't understand when some of
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Speaker 1: my Republican colleagues say that he was the opposite of
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Speaker 1: an activist judge. To me, he was a very activist judge,
6:12
Speaker 1: and this has been an activist court as far as
6:14
Speaker 1: I'm concerned. I want to read it in for just
6:16
Speaker 1: a second so we can get to Merrick Garland, who
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Speaker 1: I think is very interesting and we'd love to hear
6:22
Speaker 1: your thoughts on him as well. So Obama has nominated
6:25
Speaker 1: him to fill Scleeze vacancy, and it's unclear what's going
6:30
Speaker 1: to happen there. We're hearing a lot of different scenarios
6:32
Speaker 1: play out. And you've met with him, right, Yes, what
6:36
Speaker 1: were your impressions? He pretty much was what I had
6:40
Speaker 1: been totally was. He seemed like very smart, very um
6:46
Speaker 1: a good guy, just like you know when the administration
6:49
Speaker 1: called me before his appointment or before his nomination, uh
6:54
Speaker 1: saying you know, who do you want to see or
6:56
Speaker 1: I said, I I don't have a person, but i'd
6:59
Speaker 1: like someone who after hearings that the American people would say,
7:06
Speaker 1: I want nine of those. And what I asked him
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Speaker 1: about he has been he has a reputation, he's chief
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Speaker 1: judge of the m d C Circuit and which is
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Speaker 1: essentially the second accord in the nation. And he has
7:21
Speaker 1: a reputation as being a consensus judge. And what I
7:24
Speaker 1: asked him about is how do you do that? How
7:26
Speaker 1: do you arrive at consensus? His approach was very sensible
7:31
Speaker 1: and very smart, and he just seems like a pretty
7:33
Speaker 1: brilliant by all um all accounts. He's a you know,
7:39
Speaker 1: Roberts said, when you disagree with him, you're in You're
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Speaker 1: in bad You're not in a good position. So bipartisan
7:47
Speaker 1: appeal here, yeah, oron Hatch and or Orange Hatch had
7:53
Speaker 1: nice things to say about him earlier. He when there
7:56
Speaker 1: was another vacancy a number of years ago, or in
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Speaker 1: Hatch uh suggested Mary Garland to somebody who could get bipartisans.
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Speaker 1: What I understand is he said something recently about him
8:06
Speaker 1: before Omama made his pick, and he said that if
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Speaker 1: he picked someone like Garland, that would that would be good.
8:14
Speaker 1: But he's expecting the president to pick some you know,
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Speaker 1: liberal progressive lefty or something. And then I think he
8:22
Speaker 1: had to eat his words. So girl. It certainly has
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Speaker 1: a reputation as a consensus builder and Senator I'm I'm
8:29
Speaker 1: interested to know, is that the kind of justice do
8:31
Speaker 1: you think we need on the Supreme Court now? And
8:33
Speaker 1: I'm sort of wondering is this plays out um. The Republicans,
8:37
Speaker 1: of course, have have said they didn't want to hold
8:39
Speaker 1: the hearing, don't want to bring up a vote, and
8:41
Speaker 1: they want to let the next president decide. Well, not necessarily.
8:43
Speaker 1: They've also said that if the Democrat wins, a number
8:48
Speaker 1: of them have said they would consider him in the
8:51
Speaker 1: Lame Duck. So on the one hand, and I you know,
8:55
Speaker 1: we have um executive sessions in the Judiciary Committee, and
9:00
Speaker 1: during these sessions, we've had a couple of sessions that
9:04
Speaker 1: were pretty much devoted to discussing this. And I would
9:08
Speaker 1: sit there to the whole session and listen to people,
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Speaker 1: and I have my Republican colleagues come in and out,
9:13
Speaker 1: and a Republican would sit down and say, you know,
9:17
Speaker 1: the people have to decide, and so it should be
9:20
Speaker 1: the next uh next presidents. And then someone else would
9:23
Speaker 1: come in and go like, well, if the Democrat wins,
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Speaker 1: I think we could take what we like Garland and
9:29
Speaker 1: we should take him up in the Lame Duck. And
9:32
Speaker 1: and I spoke and I said, well, my question is
9:35
Speaker 1: do you guys talk to each other, because this was
9:41
Speaker 1: they and evidently they don't because it was a completely
9:46
Speaker 1: contradictory stance they were taking. One. This is a matter
9:49
Speaker 1: of principle. Let the people decide. Now. I think that
9:52
Speaker 1: people did decide when they voted for to re elect
9:57
Speaker 1: President Obama in two thousand and twelve. The Constitution is
10:00
Speaker 1: pretty clear that the term is for four years. In
10:05
Speaker 1: February when that's when Justice Schoolly unfortunately died, scientists told
10:13
Speaker 1: us there were eleven months left in the president's term,
10:16
Speaker 1: you see. And then in the constitution is very clear
10:20
Speaker 1: that the president makes you know, we will nominate when
10:24
Speaker 1: there is a vacancy, and there was a vacancy. And
10:28
Speaker 1: then they kept citing the Biden rule or something, and
10:33
Speaker 1: the Biden rule they took a speech that Biden had
10:36
Speaker 1: given and took it completely out of context. He had
10:40
Speaker 1: said that if Bush this was in I think October.
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Speaker 1: I believe it was in June of an election year
10:48
Speaker 1: without without a vacancy at the time. What I'm interested
10:52
Speaker 1: to know from you is, um, you know, if Hillary
10:54
Speaker 1: Clinton wins in November, I know you you hope she will,
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Speaker 1: should she be free to nominate somebody other than Merrick Garland.
11:01
Speaker 1: Would you rather see somebody he? I mean, he's described
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Speaker 1: as a moderate. He may well become the new kind
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Speaker 1: of center justice on the Court if he's confirmed. Would
11:09
Speaker 1: you rather see somebody, um who is more like just
11:12
Speaker 1: to threat a name you've you've mentioned, Pam Carlin. Uh,
11:15
Speaker 1: somebody who is more of a kind of a more liberal,
11:19
Speaker 1: perhaps more ideological, or at least more interested in in
11:24
Speaker 1: kind of sweeping constitutional changes. Well, I think that begs
11:28
Speaker 1: the question whether Republicans will take up the Garland a
11:33
Speaker 1: nomination if if say Hillary wins, and a number of
11:37
Speaker 1: them had said they would, and I think that, uh,
11:41
Speaker 1: some of them are making the argument that, I mean,
11:43
Speaker 1: it would be Hillary's right to she'd be the president,
11:48
Speaker 1: and would you want to see her do that? Would
11:50
Speaker 1: you want to see her use this nomination to make
11:54
Speaker 1: more of a change on the Supreme Court? Well? I
11:57
Speaker 1: must say I really was impressed with Garland, so I
12:00
Speaker 1: wouldn't be terribly upset if she nominated him. I think
12:04
Speaker 1: he was a perfect nominee for this moment because he
12:09
Speaker 1: is a consensus builder, and I think he was actually
12:13
Speaker 1: following the Biden rule. If you listen to the Biden
12:15
Speaker 1: speech where he said if you just you, you know,
12:20
Speaker 1: if someone resigns, if someone games, he was really basically
12:24
Speaker 1: talking about adjustice gaming nos and resigning so that Bush
12:29
Speaker 1: could then nominate someone who you know, was very right wing. Well,
12:35
Speaker 1: then he said, don't do that. We won't take that
12:38
Speaker 1: person up. But if you come to us and if
12:41
Speaker 1: that situation happens and you we come up with some
12:45
Speaker 1: kind of consensus figure, then of course we'll take him up.
12:48
Speaker 1: It seems to me that there's a lot of deliberate
12:54
Speaker 1: It's not obfuscation, it's it's kind of misrepresentation of terms
13:01
Speaker 1: and of of certainly what the Vice president said then
13:06
Speaker 1: and again what kind of justice Scalia? Uh Scalia was
13:11
Speaker 1: So since there is so much deadlock on this issue,
13:16
Speaker 1: it seems like very likely we won't have a ninth
13:19
Speaker 1: justice before November. Maybe I think that part of this
13:24
Speaker 1: was the you know, Member Jerry Moran at a town
13:28
Speaker 1: meeting in Kansas said he thought we should take up
13:33
Speaker 1: Judge Garland and then uh, some moneyed interests on the
13:37
Speaker 1: right threatened him and said that if he continued with
13:42
Speaker 1: that stance, they would dump about ten million dollars to
13:47
Speaker 1: primary him and so he reversed his position, and so
13:54
Speaker 1: maybe after the primary season is all over, there won't
13:58
Speaker 1: be that kind of pressure perhaps these Republicans, but I
14:02
Speaker 1: think that it is very likely, yes, that we will
14:05
Speaker 1: not see them take up Darland. I think they'll pay
14:09
Speaker 1: a price for it. Given that, I think, I think
14:11
Speaker 1: the Republican candidates who are incumbents, who are in states
14:17
Speaker 1: like Hampshire and in Ohio may very well pay a
14:21
Speaker 1: price for that. Pennsylvania. Well, let's talk about then, how
14:26
Speaker 1: the court is operating now that there's the vacancy and
14:29
Speaker 1: it may not be filled for quite some time. Um. Greg,
14:33
Speaker 1: it's more likely that will have four four splits um.
14:36
Speaker 1: And we've had we've had we had already, and a
14:40
Speaker 1: couple of punts, yes, including a significant punt on the
14:45
Speaker 1: Obamacare and the requirement to have contraceptive coverage. And they've
14:50
Speaker 1: also got rulings on deck or their schedule to make
14:53
Speaker 1: rulings on cases of concerning affirmative action, immigration, Puerto Rico's debt,
14:59
Speaker 1: and all of these issues touch our economy in one
15:01
Speaker 1: way or another, whether it's you know, education which it
15:04
Speaker 1: gets income, etcetera. Um, whether it's immigration in the size
15:08
Speaker 1: of our labor force or effects on wages um or
15:12
Speaker 1: pretty goods debt, which we just had an episode about
15:15
Speaker 1: a few weeks ago on the podcast What Happens Then?
15:19
Speaker 1: How do how do business leaders know how to navigate
15:22
Speaker 1: this sort of situation where they're not really sure what's
15:25
Speaker 1: going to happen, what the what the ruling is going
15:27
Speaker 1: to be, or any any precedents that might come down.
15:31
Speaker 1: I mean, how do how does that play out? Well,
15:34
Speaker 1: of course you could say the same thing about the
15:36
Speaker 1: political situation right now, and so much of this is
15:39
Speaker 1: tied to who the next president is, who ultimately nominates
15:43
Speaker 1: the next justice. And there are also some significant business
15:48
Speaker 1: issues where you could see the court being has been
15:51
Speaker 1: divided four to four octously be five to four with
15:53
Speaker 1: Justice Scalia and and the next justice will make a
15:56
Speaker 1: big difference. So we can talk about things like class
15:59
Speaker 1: action law suits where uh, there was a five justice
16:03
Speaker 1: majority with Scali on the court to limit class action lawsuits.
16:07
Speaker 1: And we can talk about arbitration, arbitration, mandatory care a
16:13
Speaker 1: lot about yeah, where where the again the five majority
16:17
Speaker 1: has said we will enforce arbitration clauses between you know,
16:21
Speaker 1: your cell phone company and consumer. Are you know, probably
16:26
Speaker 1: between employers and employees, and those are areas where I
16:29
Speaker 1: think that that I think it sounds like the Senator
16:32
Speaker 1: agrees that it could be a big difference depending on who.
16:36
Speaker 1: We've had a whole bunch of five four decisions by
16:40
Speaker 1: uh this court and usually UM, you know, when you
16:46
Speaker 1: make big decisions that, especially ones that overturned precedent, then
16:51
Speaker 1: you usually want consensus. And so this has been I
16:54
Speaker 1: think an unusual court and and and an activist court
16:59
Speaker 1: UH in that that they've overturned a lot of precedent
17:02
Speaker 1: with five four margins, and they've done it in pretty
17:05
Speaker 1: hinky ways. As the citizens united, they decided on a
17:09
Speaker 1: question they weren't wasn't asked in the case and UH,
17:13
Speaker 1: and they did buy a five four margin. Now that
17:17
Speaker 1: it's four four, we're seeing a lot of uncertainty. And
17:20
Speaker 1: you've seen a lot of business saying we don't like this.
17:23
Speaker 1: We'd like to see you know, seeing a lot of
17:27
Speaker 1: letter you know, a letter from two corporate business lawyers
17:32
Speaker 1: that I saw a similar letter writing and saying we
17:35
Speaker 1: don't we don't like the vacancy. Our clients are asking
17:39
Speaker 1: us about this. Internationally, it may damage the way people
17:44
Speaker 1: perceive the U S and its ability to make decisions.
17:47
Speaker 1: But that is I mean, I think it's probably the
17:49
Speaker 1: same letter like to learn thirty seven lawyers. That's that
17:53
Speaker 1: number six in my head for some reason, but um,
17:56
Speaker 1: probably not right. But anyway, I think it's probably the
18:00
Speaker 1: same way. And you're seeing some uncertainty. Obviously when the
18:07
Speaker 1: circuits are divided. That's when things come to the Supreme Court.
18:12
Speaker 1: And then if you do a four four and either
18:15
Speaker 1: just stalemated four four or or in in this last
18:19
Speaker 1: case on the the birth control in a c A piece,
18:24
Speaker 1: actually go back and ask the circuits questions to resolve.
18:29
Speaker 1: It's very hinky, I think, and it's and I think
18:33
Speaker 1: it creates a lot of uncertainty, and it does create
18:36
Speaker 1: a certain issue with the international business in terms of
18:43
Speaker 1: is the US reliable? You mentioned Citizens United, and you've
18:47
Speaker 1: also talked about judicial restraint overturning precedents. Would you like
18:51
Speaker 1: to see that decision overturned? And is it important to
18:54
Speaker 1: you that Yeah, I think I think, uh, most of
18:57
Speaker 1: the activism to overturn it at this point, I don't
19:02
Speaker 1: think so, because I think it was a very improper,
19:07
Speaker 1: uh use of judicial activism then and Also, you'll remember
19:11
Speaker 1: that Kennedy in his in his majority opinion, said that
19:16
Speaker 1: this is great because now we'll have this disclosure happening
19:22
Speaker 1: because of the Internet. We'll have this disclose, immediate disclosure
19:26
Speaker 1: of who's giving money to what. Well, of course we
19:30
Speaker 1: don't have disclosure, so the way he envisioned it was
19:34
Speaker 1: with disclosure, and there's no disclosure. We had a vote
19:40
Speaker 1: several years ago where we this is when we had
19:42
Speaker 1: fifty nine Democrats and um forty one Republicans and it
19:49
Speaker 1: was skins and shirts on this folte. We we had
19:51
Speaker 1: to disclose that where you could disclose where you would
19:55
Speaker 1: have to disclose people gave money to these packs would
19:59
Speaker 1: have the disclose, and and every Republican vote to vote
20:04
Speaker 1: against it. I want to take a quick break, and
20:07
Speaker 1: when we come back, we'll go into some more questions
20:09
Speaker 1: about the court. I'm particularly interested to know whether there
20:14
Speaker 1: is any good that can come out of just having
20:16
Speaker 1: eight justices on the court after we come back from
20:19
Speaker 1: this break. All right, so we are back, and I
20:35
Speaker 1: want to pick up right where we left off the
20:38
Speaker 1: good that can come out of having just eight justices.
20:43
Speaker 1: It's a contrarian opinion, Greg, what's the good. What can
20:47
Speaker 1: come out of this it's good? Well, they're not doing
20:50
Speaker 1: a whole lot of bad things, are they. The absence
20:53
Speaker 1: of bad is by definition good. I think the the
20:58
Speaker 1: argument is that, um, they are having to compromise more
21:02
Speaker 1: by the nature of of a justice is the fear
21:04
Speaker 1: of a four four split. They are deciding things narrowly.
21:08
Speaker 1: You know, one of the Garland said about how he
21:12
Speaker 1: gets consensus is decided narrowly. Yeah, yeah, I mean in
21:17
Speaker 1: one example this is this is not the siding narrowly,
21:20
Speaker 1: but rather not deciding at all. There was there was
21:23
Speaker 1: a case one of the four four is I suspect
21:25
Speaker 1: you're happy about. That is a case involving public sector
21:29
Speaker 1: unions and whether workers have a constitutional right to say
21:33
Speaker 1: we're not going to pay fees to help support the
21:36
Speaker 1: collective bargaining. And I think all all of us who
21:39
Speaker 1: covered the court a lot of other people thought the
21:42
Speaker 1: court was gonna say five to four there is a
21:44
Speaker 1: constitutional right there, and it would have been a ruling
21:47
Speaker 1: that would have really changed the change the rules for
21:49
Speaker 1: public sector unions. Instead, the court uh divides four to
21:53
Speaker 1: four and they leave the law in place where workers
21:56
Speaker 1: in In about twenty some odd states, uh can be
22:00
Speaker 1: required to pay those fees. So there was a case
22:04
Speaker 1: labor union fees, yes, um, and this is just public
22:07
Speaker 1: sector workers that we're talking about. But there was a
22:09
Speaker 1: case where, um, by only having eight justices, they didn't
22:12
Speaker 1: do something that would have been a really a you know,
22:14
Speaker 1: a major, a major shift in this country. It would
22:17
Speaker 1: have been it would have been again another five for
22:22
Speaker 1: big decision, overturning precedent. It would have been another activist decision. Uh.
22:27
Speaker 1: So I think that, Uh, yeah, I think there was
22:30
Speaker 1: As you know, basically, these unions do the bargaining even
22:35
Speaker 1: if you don't belong to the union, and UM, we're
22:40
Speaker 1: you know, collecting fees from uh the employees that they
22:44
Speaker 1: were bargaining on behalf of. And the uh you know, court,
22:50
Speaker 1: if if Scalley had been there, probably would have ruled
22:54
Speaker 1: that they can't do that, that the union can't collect
22:58
Speaker 1: fees for bargaining on behalf of these people even though
23:03
Speaker 1: they are the beneficiary of the bargaining. I could probably
23:06
Speaker 1: take off a whole long list of decisions that I
23:08
Speaker 1: think you probably disagree with over the past ten years
23:11
Speaker 1: or so that were decided five to four, and I
23:14
Speaker 1: suspect you would have been happier to have those be
23:16
Speaker 1: four to four. The Voting Rights Act as one example.
23:18
Speaker 1: I mean, most of the big decisions of the Roberts Court,
23:21
Speaker 1: when we think about the conservative decisions that they have issued,
23:24
Speaker 1: there are by and larger, perhaps even entirely five to
23:27
Speaker 1: four rulings. Yeah. And I think that was one of
23:30
Speaker 1: my my problems with it, which is when you do
23:34
Speaker 1: overturn precedent, I think you've got to be very careful,
23:38
Speaker 1: and to do it on five four basis something as
23:40
Speaker 1: big as cusins united something is some of the decisions
23:45
Speaker 1: on the Voting Rights Act we mentioned, but also on
23:49
Speaker 1: our arbitration on class actions and arbitration overriding the States.
23:54
Speaker 1: On that, I think we're very again activist pro business decisions.
24:01
Speaker 1: And Greg, you were telling me when we were sort
24:04
Speaker 1: of preparing for the show that the broader history of
24:07
Speaker 1: the Supreme Court, would you say that it leans more
24:10
Speaker 1: towards I guess pro business over the grand scheme of
24:14
Speaker 1: things or yeah. I think if you just look at
24:17
Speaker 1: using as as a kind of a convenient metric, the
24:20
Speaker 1: cases where the Chamber of Commerce has filed a brief
24:23
Speaker 1: as sort of a proxy for our case. You know,
24:25
Speaker 1: a business case where businesses on one side. This is
24:27
Speaker 1: the US Chamber of Right. Business has won over the past,
24:31
Speaker 1: you know, the time I've been covering the court, the
24:33
Speaker 1: past fifty and twenty years, they have certainly one uh
24:37
Speaker 1: more cases than they have lost. Maybe you know, close
24:39
Speaker 1: to two thirds of them I think is roughly probably
24:42
Speaker 1: probably the number, So that is fair. But not all
24:44
Speaker 1: of those have been five to four um those are
24:46
Speaker 1: it can be seven to two decisions. And there's actually
24:49
Speaker 1: one category of decisions that I find fascinating because Justice
24:53
Speaker 1: Slee is on the side you wouldn't expect them to
24:55
Speaker 1: be on, which is uh. About ten years ago, limiting
24:58
Speaker 1: punitive damages was a very big constitutional issue, and the
25:02
Speaker 1: Court was willing to put some limits on it. But
25:04
Speaker 1: the justices who said, no, the Constitution doesn't provide any
25:08
Speaker 1: limits were actually the justices we think about as being
25:12
Speaker 1: on either end of the spectrum. So you had Justice
25:14
Speaker 1: Ginsberg who said no, constitution doesn't put any limits. But
25:17
Speaker 1: also Justice is Thomas and Scalia, And so there's a
25:21
Speaker 1: case where at least in that particular issue, the next
25:24
Speaker 1: justice may actually make the Court a little more favorable
25:27
Speaker 1: to business. If he or she believes that the Constitution
25:30
Speaker 1: does provide some limits on punitive damages. How does all
25:33
Speaker 1: this play out? We know Trump came out with his
25:35
Speaker 1: list of nominees and on it it was pretty I
25:39
Speaker 1: read your story. You said it was sort of pretty
25:41
Speaker 1: by the book in terms of not stepping too far
25:44
Speaker 1: out of the conservative box. Off five of them were
25:47
Speaker 1: those also suggested I guess by the Heritage Foundation. Um,
25:54
Speaker 1: oh boy, So, I mean, what if we get a
25:57
Speaker 1: president Trump? What what happens? Greg? I'm gonna have Greg
26:00
Speaker 1: play a little bit of a Devil's advocate with you
26:03
Speaker 1: on this one. Well, you know, if you look at
26:06
Speaker 1: this list, you know, as I said, it is somebody
26:08
Speaker 1: who would be you would expect from a Republican president. Now,
26:12
Speaker 1: Donald Trump has also said, oh, it's just a guide,
26:14
Speaker 1: and then that night he put out a tweet saying
26:17
Speaker 1: my list was very well received and I may actually
26:19
Speaker 1: put more people on the list. So, um, you know,
26:23
Speaker 1: I'm not sure exactly point one at a time. I
26:29
Speaker 1: haven't had a chance to. Okay, I think that's a
26:31
Speaker 1: good first question if you get an interview. So I
26:34
Speaker 1: think I think there are a lot of conservatives who
26:37
Speaker 1: care very much about the Supreme Court who are not
26:40
Speaker 1: fully confident. But that said, I think it is certainly
26:45
Speaker 1: fair to assume that um or or or likely that
26:48
Speaker 1: he is not going to shift the court significantly from
26:52
Speaker 1: where it was with Justice scale on it that whoever
26:55
Speaker 1: he nominates will on uh, certainly be to the right
26:59
Speaker 1: of who we would expect Hillary Clinton or Bernie Sanders
27:03
Speaker 1: to nominate, and highly likely to be to the right
27:06
Speaker 1: of of Merrick Garland as well. Yeah, I mean you're
27:10
Speaker 1: you're assuming, of course, that my Republican colleagues don't well,
27:16
Speaker 1: if say Hillary wins, that they won't go with Garland.
27:19
Speaker 1: But then then the Hillary wins, Trump wouldn't win. So
27:22
Speaker 1: never mind, I should say that Judge Garland, you know,
27:27
Speaker 1: but I will I will say this about that list.
27:29
Speaker 1: He was just trying to unite the party, like putting
27:33
Speaker 1: out a list that you know, conservatives will go like,
27:36
Speaker 1: oh okay, those are I like those guys. You know,
27:40
Speaker 1: I don't think that you know, that was a pretty
27:44
Speaker 1: uh you know, that's telling put a list together for
27:46
Speaker 1: me that will accomplish that. Red State put out an
27:51
Speaker 1: argument a few weeks ago that's sort of along the
27:54
Speaker 1: lines of I think what you seem to be hearing
27:57
Speaker 1: from some Republicans, which is Republicans should just go ahead
27:59
Speaker 1: and phil the vacan see because it's more likely that
28:01
Speaker 1: Hillary will win than Trump, and she may nominate someone
28:05
Speaker 1: who's much more liberal than to go ahead and confirmers
28:08
Speaker 1: excuse me, yes, you could go ahead and suld go ahead,
28:11
Speaker 1: confirm any thoughts on this from from either of you.
28:15
Speaker 1: Do you think that's something that they're mulling right now, Senator, Well,
28:18
Speaker 1: you know, I think what they're mulling literally is election.
28:23
Speaker 1: Hillary wins. Hearings Garland literally, I mean, as bad as
28:29
Speaker 1: that looks in a way, the election is over. I
28:32
Speaker 1: think that there is a real respect for Garland and
28:39
Speaker 1: almost an affection for him. You know, one of the
28:41
Speaker 1: first Republican senators who agreed to meet with Garland it
28:46
Speaker 1: was Jim Inhoff. And that's because of that Garland was
28:51
Speaker 1: the prosecutor in the Oklahoma City case, and that he
28:55
Speaker 1: has stayed in touch with the families of those were
28:59
Speaker 1: killed at Oklahoma City and he's kind of revered there
29:05
Speaker 1: and so, um, this guy is kind of an extraordinary guy.
29:10
Speaker 1: So I think that that play, you know, may very
29:16
Speaker 1: well make sense that they could go, Okay, we lost
29:19
Speaker 1: the election. Hillary will probably appoint someone more to the left. Also,
29:24
Speaker 1: we hopefully got our butts handed to us the other day,
29:29
Speaker 1: and there's gonna be a lot more and maybe the
29:31
Speaker 1: Democrats take over the Senate. Yeah that's what. Yeah, that's
29:34
Speaker 1: what I was saying. Hopefully, you know, That's why I
29:37
Speaker 1: said hopefully, and I hope that happens. Uh So they
29:40
Speaker 1: may actually bring up Garland and then we'd have to
29:44
Speaker 1: do a gut check and see, uh you know, and
29:48
Speaker 1: I actually think Obama would be okay with that. I
29:51
Speaker 1: don't know where Hillary would be on that. How do
29:54
Speaker 1: we get out of this, this this box that we're
29:57
Speaker 1: in with these nominations they have, and we can of
30:00
Speaker 1: go back and point fingers as to who who's at fault.
30:03
Speaker 1: But we're in a in a world where Supreme Court
30:05
Speaker 1: nominations have become so partisan and increasingly it seems like
30:11
Speaker 1: they are looked upon as a zero sum game. And
30:13
Speaker 1: the way you describe your your view of how the
30:16
Speaker 1: Republicans are acting, it sounds like you think they are
30:19
Speaker 1: perceiving this in that same way where where if if
30:22
Speaker 1: they get to the point where they say, oh, you know,
30:25
Speaker 1: Merrick Garland is you know, the best we can do
30:27
Speaker 1: at this point, then we'll go ahead and confirm him.
30:29
Speaker 1: But how do memory because I think what this does
30:35
Speaker 1: is undermine their respect for the court because it's approval
30:41
Speaker 1: ratings to the extent they matter. Have have you know,
30:43
Speaker 1: plummeted plummeted along with with you know, those of Congress
30:48
Speaker 1: and other institutions. Yeah, Well, I think there's been sort
30:51
Speaker 1: of an assault on legitimacy of government for a long
30:56
Speaker 1: long time. We saw that, you know, with ging Rich,
30:59
Speaker 1: and we've seen that with the Tea Party. And I
31:03
Speaker 1: think that the Republican Party has sort of created Trump
31:07
Speaker 1: in a way. Um made a bargain and I think
31:12
Speaker 1: that's this is what you get. And I think it
31:15
Speaker 1: has been partly an assault at the legitimacy of the government,
31:22
Speaker 1: you know, including threatening to default on our debt. Trump's
31:30
Speaker 1: Trump's saying that he says a couple of things. One,
31:34
Speaker 1: you can bargain with our creditors, and that us presentably
31:39
Speaker 1: as people who who hold bonds. So I don't know
31:42
Speaker 1: how they would would bargain with me. I don't know
31:45
Speaker 1: where I'd be in on that. And which is a
31:50
Speaker 1: that's not good for business. I can tell you that
31:53
Speaker 1: I don't. I'm on Bloomberg. I think Bloomberg would agree
31:56
Speaker 1: that's not good. And then there was the other thing.
31:59
Speaker 1: I said, we can't the fall because we print money,
32:01
Speaker 1: which is kind of crazy. So this is who who
32:04
Speaker 1: the Republican nominee is. And I think that this has
32:09
Speaker 1: been a process of uh playing foot see with people
32:14
Speaker 1: who don't believe that the government has a legitimate role
32:19
Speaker 1: to play. Well, I we're going to wrap up, but
32:22
Speaker 1: I would probably lose my journalist card if I didn't
32:25
Speaker 1: ask this question. Are you being considered by Hillary Hillary
32:29
Speaker 1: Clinton's campaign for vice president? Is that something you'd be
32:32
Speaker 1: interested in? I really enjoy my job with representing the
32:38
Speaker 1: people of Minnesota, and I am gonna work very hard
32:42
Speaker 1: for Hillary, going around country for her. I, um, I don't.
32:48
Speaker 1: I think that's just conjecture and I I don't think
32:53
Speaker 1: that's going to happen. I guess we'll see, all right,
32:57
Speaker 1: anything as possible. I'll make you bet how much well
33:03
Speaker 1: you mean one of the odds, because I'll bet you
33:05
Speaker 1: a thousand bucks. I mean, I mean, you're on one
33:08
Speaker 1: side of this bargain. Is it doesn't seem very fair
33:10
Speaker 1: for me. Yeah, it's very unfair, isn't it. Thank you, Tori,
33:14
Speaker 1: thank you, thank you Greg. That's it for today's show.
33:22
Speaker 1: Benchmark will be back next week, and until then, you
33:24
Speaker 1: can find us on the Bloomberg Terminal and Bloomberg dot com,
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33:56
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Speaker 1: to check out Odd Lots, a podcast about the twists
34:01
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34:04
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