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Warning From the Chief Justice & Vaccine Ruling · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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Speaker 2: For the first time, twenty nine Appellate Court judges on
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Speaker 2: the Ninth Circuit have issued a harsh rebuke to one
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Speaker 2: of their colleagues for coarse language he used in a
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Speaker 2: dissenting opinion. The full court had decided not to review
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Speaker 2: on bank a ruling by a three judge panel against
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Speaker 2: a Christian known SPA that wanted to exclude transgender women
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Speaker 2: from its facilities on free speech grounds. Judge Lawrence Van Dyke,
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Speaker 2: a Trump appoint d, used vulgar language to describe transgender
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Speaker 2: women in his descent that prompted a harsh rebuke from
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Speaker 2: his colleagues across the ideological spectrum. They wrote that the
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Speaker 2: US legal system is not a place for vulgar barroom talk,
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Speaker 2: and that Van Dyke's descent ignores ordinary principles of dignity
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Speaker 2: and civility and demeans this court quote. That language makes
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Speaker 2: us sound like juveniles, not judges, and it undermines public
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Speaker 2: trust in the courts. My guest is retired federal Judge
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Speaker 2: Johnny Jones the third. He's the president of Dickinson College.
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Speaker 2: Judge Jones what's your reaction to Judge Van Dyke using
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Speaker 2: vulgar language that I'm not going to repeat here to
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Speaker 2: refer to transgender women three times in his descent and
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Speaker 2: said that his colleagues had lost their collective minds.
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Speaker 3: Well, I've never quite read a judicial opinion like what
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Speaker 3: Judge Van Dyke rendered, And you know, at the end
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Speaker 3: of the day, I think it's unfortunate and it's inappropriately word.
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Speaker 3: Did I agree with his colleague who opined that were
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Speaker 3: better than this. It's way too sensational, it's way too cavalier.
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Speaker 3: And you know, the other appellation that he used in
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Speaker 3: the opinion is referring to his colleagues as woke, and
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Speaker 3: it's just wholly intemperate. And I think it portends that
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Speaker 3: he's going to have a very difficult working relationship if
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Speaker 3: he didn't already with his colleagues on the circuit.
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Speaker 2: Well, there was a scathing rebuke from twenty seven of
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Speaker 2: his own colleagues on the Ninth Circuit, including very conservative
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Speaker 2: judges and Trump appointees, and as you mentioned, two judges,
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Speaker 2: a Trump appointing and Obama appointee. He wrote a separate,
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Speaker 2: single line sentence saying regarding this dissenting opinion of Judge Vandyke.
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Speaker 2: We're better than this. Have you ever heard of a
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Speaker 2: rebuke like that from colleagues on the court?
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Speaker 3: No, I haven't, and I've read some really vigorous descents.
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Speaker 3: Justice Scalia could really sharpen his pen in his descent.
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Speaker 3: They were kind of entertaining, in part because he didn't
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Speaker 3: do it with particularly animus. There was one time in
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Speaker 3: history that I've read about where he and Justice Kennedy
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Speaker 3: clashed and they both regretted it, but the rhetoric wasn't
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Speaker 3: anything close to what you see in this rendering. You know,
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Speaker 3: appell at courts like the Ninth Circuit have to work together,
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Speaker 3: and they may have widely disparate views. But the interesting
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Speaker 3: thing about courts is that while people come from all stripes,
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Speaker 3: and I had a very diverse court in the Middle
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Speaker 3: District of Pennsylvania. The District Court, you know, you tend
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Speaker 3: to check your you know, sort of sensational activities and
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Speaker 3: attitudes at the door and really work to get along
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Speaker 3: with your colleagues for the good of the third branch.
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Speaker 3: And this kind of I can only characterize it as grandstanding.
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Speaker 3: I think really casts Judge Van dyke in an unfortunately
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Speaker 3: bad light, and this is not his first rodeo. As
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Speaker 3: they say, you know, having a dissent by video is
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Speaker 3: I would also say, probably too cute by half, yeah.
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Speaker 2: To record an eighteen minute video in his judicial robes
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Speaker 2: handling several firearms as part of a descent from a
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Speaker 2: Ninth Circuit decision that upheld a California gun control law.
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Speaker 2: Sometimes when judges write these opinions with shock elements, they're
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Speaker 2: referred to as auditions for the Supreme Court. A judge
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Speaker 2: is trying to get the attention of President Trump in
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Speaker 2: a way that President Trump would like in order to
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Speaker 2: become a nominee on the Court.
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Speaker 3: You know, I guess that you could say that he's
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Speaker 3: auditioning for something. I don't know what, but you know,
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Speaker 3: he comes off, as I have to use this phrase,
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Speaker 3: He comes off as a jackass by the way he
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Speaker 3: writes the opinion. And I think that he's going to
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Speaker 3: have a hard time if his quest is, you know,
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Speaker 3: to be taken seriously as a Supreme Court nominee. He's
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Speaker 3: getting an F grade in that. I don't think it's
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Speaker 3: going to work for him. This is the kind of
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Speaker 3: stuff that would really get you beaten up, perhaps in
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Speaker 3: a bipartisan way in his Senate confirmation, So good luck
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Speaker 3: to him, But he doesn't look like a Supreme Court
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Speaker 3: nominee to me in any way, shape or form.
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Speaker 2: In their response, his colleagues said that it could undermine
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Speaker 2: public trust in the courts. Do you think that's something
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Speaker 2: like this could undermine public confidence in the courts.
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Speaker 3: It depends how widely disseminated the opinion is. To be
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Speaker 3: perfectly honest, but it could get viral. I guess it's
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Speaker 3: certainly been written about in a number of different places.
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Speaker 3: I don't know that the general public reads these things.
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Speaker 3: But you know, at a time when I think the
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Speaker 3: third branch has been under assault by the administration, and
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Speaker 3: you know, judge's integrity has been questioned, you know, every
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Speaker 3: time they rule in a way that displeases the President
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Speaker 3: and the Attorney General and so forth, you don't need this.
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Speaker 3: This is not helpful. Judges on appellate courts have disagreed
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Speaker 3: since the beginning of the Republic and the creation of
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Speaker 3: the circuit courts, which came along, of course, after the
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Speaker 3: Supreme Court was created, and they've done it with you know,
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Speaker 3: a modicum of civility, but sometimes very directly. This is
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Speaker 3: really beyond the pale. You know, it's hey, look notice me,
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Speaker 3: because I can say really sensational, inflammatory things, and I
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Speaker 3: don't believe that that's appropriate in the business of judging.
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Speaker 3: And I hasten that I turned some pretty good phrases.
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Speaker 3: I thought. When I was on the court, I took
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Speaker 3: swings at some really interesting cases. And I love to write,
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Speaker 3: and I love to write with meaning and effect, but
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Speaker 3: not like this. And I sat by designation, I should
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Speaker 3: note on the Third Circuit Court of Appeals many times.
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Speaker 3: And this is really diletorious when it comes to your
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Speaker 3: working relationships with your with your fellow judges, and you know,
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Speaker 3: because you work in close quarters with them.
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Speaker 2: Is there a point, you know, we mentioned there was
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Speaker 2: another instance. Is there a point where there could be
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Speaker 2: disciplinary proceedings?
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Speaker 3: You know, that's an interesting question. You know, I don't know.
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Speaker 3: I don't think there's anything particularly actionable in the opinion
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Speaker 3: from a judicial discipline standpoint. Generally, something like this, and
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Speaker 3: I've heard of this happening in a number of cases.
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Speaker 3: You may get a call from the chief judge of
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Speaker 3: the Circuit and you know, kind of be taken to
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Speaker 3: the woodshed by the circuit and say, look, you know
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Speaker 3: this isn't helpful. I read up on the good Judge
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Speaker 3: Vandyk and I don't think he's of a nature that
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Speaker 3: that would resonate with him. And I'm guessing that perhaps
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Speaker 3: after the video descent in which he was literally brandishing firearms,
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Speaker 3: that he's already had a brushback pitch thrown at him
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Speaker 3: by some colleagues in the circuit. He doesn't appear to
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Speaker 3: be of a mind to listen side. I don't think
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Speaker 3: that would be particularly efficacious in this case. I mean,
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Speaker 3: I've seen judges, you know, who've had maybe too aggressive
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Speaker 3: language in their opinions. Older colleagues, you know, take him
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Speaker 3: aside and you know, try to help them, and they
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Speaker 3: generally they listen to that. But this, I've never quite
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Speaker 3: seen anything like this.
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Speaker 2: Also, I just want to point out that when he
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Speaker 2: was nominated, the American Bar Association rated him not qualified,
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Speaker 2: with some lawyers and judges saying he was arrogant, lazy,
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Speaker 2: and an ideologue who doesn't have an open mind.
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Speaker 3: Other than that, he's perfectly qualified for the bench. Obviously,
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Speaker 3: you know, I read that, and he certainly, you know,
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Speaker 3: if you get ding like that, and of course a
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Speaker 3: lot of people don't like the ABA process and so forth.
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Speaker 3: But if you get ding like that as you're going
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Speaker 3: through your confirmation, you would think that you want to
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Speaker 3: sort of enhance your reputation and prove to everybody that
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Speaker 3: you're qualified by doing things like this. It's, you know,
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Speaker 3: just the opposite. And to my comment earlier you in
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Speaker 3: about you know, working in close quarters. You know, you
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Speaker 3: sit typically in three judge panels unless you're on bank
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Speaker 3: and the whole court sits, which I guess I don't
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Speaker 3: know how they do that necessarily in the Ninth Circuit
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Speaker 3: with all the judges they have, but it doesn't matter.
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Speaker 3: I mean, you have to fashion an opinion. There's a
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Speaker 3: lot of trading off, and you're shuttling between well, first
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Speaker 3: of all, you may hear a oral argument and then
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Speaker 3: you cauc us after that and get a preliminary view,
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Speaker 3: and you know, you're hanging out with your colleagues. Sometimes
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Speaker 3: you have lunch with them after a particular sitting. And
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Speaker 3: I enjoyed doing that. I wasn't used to doing it
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Speaker 3: because I was a trial judge, but the times that
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Speaker 3: I was elevated to the circuit, I got to know
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Speaker 3: some folks that I hadn't known before, and you know,
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Speaker 3: collaborated with them on different opinions, and you sort of
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Speaker 3: work in that fashion even if you dissent. I mean,
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Speaker 3: you do it that way. Just imagine the next time
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Speaker 3: this guy is sitting with some of the colleagues who
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Speaker 3: castigated him in this case, it's going to be like
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Speaker 3: he's radioactive. And you can't trust a guy like that
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Speaker 3: to kind of act as according to what I would
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Speaker 3: describe as judicial norms. And you know, I'm as progressive
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Speaker 3: as the next guy, but this isn't like blazing new
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Speaker 3: territory and deciding cases. This is sensationalistic and I just
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Speaker 3: don't think it as a place.
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Speaker 2: And also I want to point out that this is
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Speaker 2: about the Ninth Circuit not going on bank to review
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Speaker 2: a judge's ruling dismissing this lawsuit against a SPA as
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Speaker 2: against the Washington anti discrimination law. And the Ninth Circuit
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Speaker 2: gets hundreds of requests for on bank review every year,
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Speaker 2: and only here's cases on bank fifteen or twenty five
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Speaker 2: times a year. So I wonder why did he choose
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Speaker 2: this to issue this kind of a scathing descent Unless
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Speaker 2: it was because of the transgender issue in the case.
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Speaker 3: Well, we'd have to climb in his head to figure
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Speaker 3: it out. But you know, he might have been looking
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Speaker 3: for a spot to kind of flex his rhetoric. I
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Speaker 3: don't know for sure, but you're right, I mean more
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Speaker 3: unorthodox is writing this extensively in a matter of the
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Speaker 3: denial of on bonk hearing. That's not normal, so to speak. Basically,
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Speaker 3: they let the decision stand, you know, by the panel
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Speaker 3: and as you aptly note, the volume of cases they
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Speaker 3: get because of the scope the sweep of the Ninth
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Speaker 3: Circuit is absolutely incredible, so you know, more often than
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Speaker 3: not most of the time, as you point out, again aptly,
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Speaker 3: they can't hear these cases on bonk. But again what
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Speaker 3: his motivation was. But he seems to be picking spots
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Speaker 3: because in the other case, the firearms case, he made
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Speaker 3: a sort of cost leve out of that as well.
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Speaker 2: Stay with me, Judge Jones coming up next on The
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Speaker 2: Bloomberg Law Show. Chief Justice John Roberts slammed dangerous attacks
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Speaker 2: on judges in his first public comments since President Trump
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Speaker 2: blasted justices who voted to strike down his global tariffs.
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Speaker 2: I've been talking to former federal Judge Johnny Jones, the
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Speaker 2: third Judge Jones, you mentioned the criticism of judges, and
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Speaker 2: from the very beginning, this administration has been calling out
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Speaker 2: individual judges for their decisions and calling them woke and activists.
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Speaker 2: And President Trump, in response to the sixty three ruling
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Speaker 2: that upended his signature economic policy of tariffs, assailed the
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Speaker 2: justices who ruled against him, calling them fools, lap dogs, unpatriotic,
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Speaker 2: disloyal to our constitution, and an embarrassment to their families.
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Speaker 2: And he followed up those comments in a series of
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Speaker 2: social media posts accusing the Court of being a weaponized
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Speaker 2: and unjust political organization. Well, today, during a conversation at
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Speaker 2: Rice University's Baker Institute for Public Policy, the Chief Justice
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Speaker 2: made his first comments about the criticism, without naming President Trump.
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Speaker 2: He said that hostility toward judges was creating a dangerous environment.
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Speaker 2: Let's listen to part of his comments.
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Speaker 1: The problem sometimes is that the criticism can move from
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Speaker 1: a focus on legal analysis to personalities, and you see
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Speaker 1: from all over, i mean, not just any one political
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Speaker 1: perspective on it, that it's more directed in a personal way,
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Speaker 1: and that frankly, can be actually quite dangerous judges around
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Speaker 1: the country work very hard to get it right, and
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Speaker 1: if they don't, their opinions are subject criticism. But personally
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Speaker 1: directed hostility is dangerous and it's got to sun.
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Speaker 3: Yeah, this is a big statement from the Chief. And
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Speaker 3: I absolutely respect the Chief Justice. I think that he's
13:23
Speaker 3: been a terrific leader of the federal courts. Agree or
13:26
Speaker 3: disagree with his decisions. He became Chief Justice when I
13:29
Speaker 3: was on the bench. He's about my same age. I think,
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Speaker 3: you know, he's stood up historically for his judges, but
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Speaker 3: for him to go this far means to me that
13:39
Speaker 3: he appreciates that this has reached critical mass. I was
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Speaker 3: privileged to be on sixty Minutes a couple of weeks
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Speaker 3: ago and a spot on threats against the judiciary, and
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Speaker 3: I said very straightforwardly that we're going to get a
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Speaker 3: judge killed if we're not careful. And I think this
13:55
Speaker 3: is resonating now with the Supreme Court. And while I
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Speaker 3: know that the Chief was being cautious, although his statements
14:04
Speaker 3: were pretty pretty strong, pretty profound, that it has to stop. Look,
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Speaker 3: there's only one set of offenders right now. You could
14:12
Speaker 3: go back and talk about Chuck Schumer, and you can
14:15
Speaker 3: talk about other people who made comments about decisions by
14:19
Speaker 3: Republican appointed judges. But they're completely different in their nature
14:25
Speaker 3: than what we've seen the constant drumbeat from this administration
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Speaker 3: literally from January twentieth of last year. And you know,
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Speaker 3: I think the president's rhetoric, the Attorney General's rhetoric, Todd
14:37
Speaker 3: Blanche for example, saying there's a war in the judiciary.
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Speaker 3: I think this is this is really really beyond the pale.
14:43
Speaker 3: And you know, we're seeing judges docks, We're seeing judges
14:47
Speaker 3: having pizzas delivered to them anonymously, and somebody's going to
14:52
Speaker 3: take up arms and they're going to do harm to
14:55
Speaker 3: a judge or a judge's family. And I think the
14:58
Speaker 3: chiefs had enough of it, and that's that's why he
15:00
Speaker 3: picked a spot at Rice University and decided to speak out.
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Speaker 3: Good for him.
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Speaker 2: Do you have any confidence that this is going to
15:07
Speaker 2: get the president or those in his administration to tame
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Speaker 2: their remarks.
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Speaker 3: Well, it won't stop, June, But I'll tell you what's happening.
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Speaker 3: You know, you're seeing for the first time now that
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Speaker 3: grand juries are not indicting people, They're issuing no bills
15:22
Speaker 3: in cases. So this president would want to, I think,
15:26
Speaker 3: use the apparatus of the criminal justice system of the
15:29
Speaker 3: Justice Department to you know, bring punitive actions against his enemies.
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Speaker 3: And what he's done is I think he's poisoned the
15:37
Speaker 3: well and good citizens who are called to serve on
15:39
Speaker 3: grand juries are not buying it. And judges too, Judge Bozburg,
15:43
Speaker 3: for example, you know, who quashed a subpoena almost never
15:46
Speaker 3: happens in the case of Jerome Powell. So judges and
15:49
Speaker 3: grand jurors are wise to the ways of this administration.
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Speaker 3: I mean, these sort of consequences of this are expanding.
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Speaker 3: For example, you know, the duty of cant to the
16:00
Speaker 3: court is observed in the breach I think by government
16:03
Speaker 3: attorneys daily. They have utterly lost their credibility with the
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Speaker 3: federal judiciary. You know, judges simply don't believe what lawyers
16:10
Speaker 3: are saying to them. And that's really sad because you know,
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Speaker 3: I learned over my almost twenty years in the bench
16:17
Speaker 3: that the Justice Department was extremely professional and reliable, and
16:21
Speaker 3: you know, you typically could take them at their word.
16:23
Speaker 3: That has been eviscerated by this administration. So while I
16:27
Speaker 3: don't expect them to stop, they're reaping what they're sewing.
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Speaker 3: And you know, I've never seen so many no bills
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Speaker 3: issued from Grand Jury's it's remarkable.
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Speaker 2: Thanks so much for joining me today, Judge Jones. It's
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Speaker 2: always great to get your insights. That's Judge Johnny Jones,
16:43
Speaker 2: the third the president of Dickinson College. Health and Human
16:48
Speaker 2: Services Secretary Robert F. Kennedy Junior, was a leading anti
16:53
Speaker 2: vaccine activist before becoming the nation's top health official, and
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Speaker 2: back in June, when he was asked about his firing
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Speaker 2: all seventeen members of the Advisory Committee on Immunization Practices,
17:07
Speaker 2: Kennedy insisted he would replace them with qualified doctors and
17:11
Speaker 2: medical experts, not any vaxxers.
17:14
Speaker 4: We're bringing people on who are credential scientists, who are
17:19
Speaker 4: highly credential physicians, who are going to do evidence based medicine,
17:25
Speaker 4: who are going to be objective, and we're going to
17:27
Speaker 4: follow the science.
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Speaker 2: But Kennedy did just the opposite, and now a Boston
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Speaker 2: federal judge has suspended the thirteen members of the Vaccine
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Speaker 2: Advisory Committee appointed by Kennedy and blocked federal health officials
17:41
Speaker 2: from cutting the number of vaccines recommended for every child.
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Speaker 2: The order issued Monday is the latest development in a
17:49
Speaker 2: lawsuit filed last July by the American Academy of Pediatrics,
17:54
Speaker 2: the American Medical Association, and other health organizations. Joining me
17:59
Speaker 2: is health care attorney Harry Nelson, a partner at leech
18:03
Speaker 2: Tishman Nelson Hardiman. Harry tell us about RFK Junior's moves
18:08
Speaker 2: to sort of upend vaccine regulations.
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Speaker 5: There's been a series of steps to kind of disrupt
18:17
Speaker 5: the framework around how our vaccine system is working since
18:21
Speaker 5: the beginning of the administration. It's not about any single
18:25
Speaker 5: policy decision that RFK has made, but he has literally,
18:29
Speaker 5: under his leadership Health and Human Services has basically tried
18:34
Speaker 5: to scale back or remove all kinds of recommendations for vaccines,
18:38
Speaker 5: including the most sort of widespread, widely used vaccines influenza,
18:44
Speaker 5: hepatitis A and B and RSV, And so the recommendations
18:49
Speaker 5: were kind of the core piece of what he did,
18:51
Speaker 5: because those recommendations from the federal government drive insurance coverage
18:56
Speaker 5: and shape standard of care and set policy at the
18:59
Speaker 5: public health level in schools, and so that was the
19:02
Speaker 5: first thing that he did. The second thing that RFK
19:04
Speaker 5: did that you could even argue is more consequential as
19:07
Speaker 5: he dismantled the Advisory Committee on Immunization Practices the ACIP,
19:13
Speaker 5: that was really the panel of experts that were the
19:16
Speaker 5: scientific engine behind the recommendations coming from the Center for
19:20
Speaker 5: Disease Control CDC and for driving the coverage decisions under
19:25
Speaker 5: federal law, again applying to all the sort of traditional
19:28
Speaker 5: vaccines like the flu vaccine all the way to COVID
19:32
Speaker 5: and those vaccines. So he basically dismantled and reconstituted that
19:37
Speaker 5: panel with people who agreed with him. I would say
19:40
Speaker 5: the broader kind of effect of what he's done, beyond
19:44
Speaker 5: those formal policy steps, has been a kind of reframing
19:47
Speaker 5: of the posture of the federal government towards vaccine, to
19:51
Speaker 5: really move away from any kind of strong endorsement about
19:55
Speaker 5: vaccines and really elevating concerns about safety of vaccine and
20:00
Speaker 5: emphasizing its individualized decision making over kind of public health standards,
20:06
Speaker 5: and sending a very kind of mixed message to patients
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Speaker 5: and families and healthcare providers and really creating you know,
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Speaker 5: the criticism is that it's really undermining a public trust
20:18
Speaker 5: and creating an ambiguity and a skepticism that is really
20:23
Speaker 5: sort of harming the value of that vaccines have played
20:25
Speaker 5: historically in terms of national public health.
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Speaker 2: So on Monday, a federal judge blocked health officials from
20:34
Speaker 2: cutting the number of vaccines recommended for every child and
20:37
Speaker 2: also suspended Kennedy's appointments to that Advisory Vaccine Panel. Explained
20:42
Speaker 2: why Judge Brian Murphy decided to do that.
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Speaker 5: So there really were kind of two big issues that
20:49
Speaker 5: drove Judge Murphy's decision here. First, under the Administrative Procedure Act,
20:54
Speaker 5: which is how regulatory federal regulatory Agencies act, he essentially
20:58
Speaker 5: signaled that the way that policy shifts, particularly ones that
21:01
Speaker 5: have broad national implications, happened, is supposed to happen with
21:05
Speaker 5: a reasoned basis and an appropriate process, even when an
21:08
Speaker 5: agency has authority to make a decision, that transparency and
21:12
Speaker 5: continuity with the evidentiary record are supposed to be part
21:16
Speaker 5: of the record to ensure that decisions are made carefully
21:18
Speaker 5: and deliberately. And so that was kind of the first
21:21
Speaker 5: concern that the judge raised. And then the second one
21:24
Speaker 5: was about this issue of the reconstitution of the panel
21:27
Speaker 5: and essentially saying that it amounted to a structural intervention
21:31
Speaker 5: in the primary scientific body that the federal government has
21:35
Speaker 5: invested authority in on immunization and raising questions about whether
21:39
Speaker 5: any recommendations that come out are reflecting independent scientific judgment
21:43
Speaker 5: or instead are simply pursuing you a predetermined, kind of
21:48
Speaker 5: politically driven policy outcome. So those are really the kind
21:52
Speaker 5: of core of what the judge was relying on to
21:55
Speaker 5: strike this down.
21:57
Speaker 2: So this is a temporary order. Also, the government says
22:01
Speaker 2: they're going to appeal in light of that. How important
22:04
Speaker 2: is this as far as sort of a knock on
22:08
Speaker 2: Rfk's health agenda.
22:11
Speaker 5: I do think on a public relations level, you know,
22:14
Speaker 5: this is really raising questions about how effective he is,
22:18
Speaker 5: and we're seeing signs that the administration is getting nervous.
22:21
Speaker 5: At this point, we have a preliminary injunction, which just means,
22:24
Speaker 5: you know, any changes are frozen from happening now, but
22:28
Speaker 5: the case still needs to be decided, and obviously the
22:31
Speaker 5: government's going to go appeel this up to the first
22:34
Speaker 5: Circuit and the Department of Health and Human Services is
22:36
Speaker 5: going to ask the court to lift the injunction while
22:39
Speaker 5: this is upending. So I do think that the administration
22:43
Speaker 5: could easily you know, sort of undo or freeze this decision,
22:48
Speaker 5: and it may not be the decision that holds in
22:50
Speaker 5: there for the long term. But I still think that
22:53
Speaker 5: it is going to put the government, is going to
22:56
Speaker 5: put the president in a challenging position of trying to
22:59
Speaker 5: decide how invested he is in rfk's agenda. And it's
23:03
Speaker 5: going to be interesting also to see how Appelic Court
23:05
Speaker 5: federal Pellic Court judges feel about this, you know, depending
23:08
Speaker 5: on the configuration of judges that hear the case. If
23:10
Speaker 5: they see it as a process case, this injunction could
23:13
Speaker 5: have staying power. On the other hand, if they think
23:14
Speaker 5: that the judge acted to aggressively on a case where
23:18
Speaker 5: the government should have discretion, we could see a reversal
23:20
Speaker 5: either way. I do think this case is going to
23:22
Speaker 5: play into a broader topic of the limits of regulatory
23:26
Speaker 5: agency power. But I also think it's going to force
23:29
Speaker 5: some decision making by the president and by the team
23:32
Speaker 5: close to the president of how much they want to
23:35
Speaker 5: stand by RFK and whether they want to cut back.
23:38
Speaker 5: And we're hearing signs, you know, signals that there is
23:41
Speaker 5: some discontent that he may have gone too far and
23:44
Speaker 5: may actually be creating negative attention just based on a
23:48
Speaker 5: broad reception to the vaccine changes.
23:50
Speaker 2: So one of the arguments had been that the Vaccine
23:54
Speaker 2: Advisory Committee had moved away from making decisions through through
23:59
Speaker 2: a scientific method. How important is the science to the
24:04
Speaker 2: judge's decision and to future decisions.
24:07
Speaker 5: You know, the standard when we talk about federal and
24:10
Speaker 5: state regulatory agencies and their decisions is typically it's arbitrary
24:14
Speaker 5: and capricious. So I do think I don't think a
24:16
Speaker 5: regultary agency has ever locked into one scientific view. I
24:20
Speaker 5: do think it is a real question of whether there
24:23
Speaker 5: is a legitimate reasonable position on the other side. Clearly,
24:27
Speaker 5: the you know, medical establishment, the American Academy Pediatrics, and
24:31
Speaker 5: all the large you know institutions that are are kind
24:34
Speaker 5: of infrastructure for medicine are attacking the RFK changes of
24:39
Speaker 5: his policies as not being evidence based. And I do
24:41
Speaker 5: think that is a question that the that the appelic
24:43
Speaker 5: Court will have to to look at, and I think
24:45
Speaker 5: it will be interesting to see if they give more
24:48
Speaker 5: deference here or support the strual Court judge.
24:51
Speaker 2: As far as what's been happening, how you know, vaccine
24:55
Speaker 2: policy has been sort of in disarray, and you have
24:58
Speaker 2: some states trying to codify previous immunizations schedules, and you
25:03
Speaker 2: have you know, medical groups issuing their own schedules, and
25:08
Speaker 2: then you have people going to pediatricians and doctors saying
25:12
Speaker 2: what should I do? I mean, it's caused a lot
25:14
Speaker 2: of confusion, hasn't it? Now?
25:17
Speaker 5: No question? Yeah, as you're saying about thirty states have
25:20
Speaker 5: completely rejected or have rejected different parts of the new
25:23
Speaker 5: recommendations and are passing state laws to maintain vaccine access
25:27
Speaker 5: and to coordinate regional public health guidance that is totally
25:31
Speaker 5: departing from federal policy under RFK, and we're seeing I
25:34
Speaker 5: think really what's interesting is major health systems, hospitals, and
25:39
Speaker 5: doctors groups are not following the new guidance and are
25:42
Speaker 5: sticking with prior standards and resisting here. So there's no
25:46
Speaker 5: question about that. The question for me really is like
25:49
Speaker 5: how is the public responding? You know, there's been some
25:52
Speaker 5: polling that trust in government vaccine recommendations has dropped significantly,
25:57
Speaker 5: And the question is is that now people who are
26:00
Speaker 5: feeling like vaccines are open to question or is it
26:04
Speaker 5: people who are unhappy with the politicization of vaccines that
26:08
Speaker 5: for the vast majority of people were kind of uncontroversial,
26:11
Speaker 5: So it's going to be interesting to see where the
26:12
Speaker 5: public is holding right now.
26:14
Speaker 2: I mean, do you have any doubt that what Kennedy
26:18
Speaker 2: and his board are trying to do with the vaccine
26:22
Speaker 2: schedule is harmful to children and to the country in general.
26:28
Speaker 5: Yeah, I certainly have concerns that this is not the
26:33
Speaker 5: right move for our public health system. By the way,
26:35
Speaker 5: I should say that, I don't think the center of
26:36
Speaker 5: gravity in terms of how people not feel about trusting doctors,
26:41
Speaker 5: trusting pediatricians, and vaccinating kids on childhood vaccines, I don't
26:45
Speaker 5: think that has fundamentally changed, even if there are more
26:49
Speaker 5: people who are in this dissenting camp. I think what's
26:52
Speaker 5: really happened is we're seeing a diminished trust in federal
26:56
Speaker 5: health authorities generally, with you know, the inconsistency and the
27:01
Speaker 5: mixed signals. And I do think on some level this
27:05
Speaker 5: is part of a broader trend of moving away from
27:07
Speaker 5: kind of more uniform guidance to individualized decision making. And
27:11
Speaker 5: I think this is a place where it's not from
27:13
Speaker 5: a public health standpoint, It's very easy to say this
27:16
Speaker 5: is bad because public health depends on consistency and once
27:20
Speaker 5: that erodes, even small shifts can have massive downstream effects,
27:23
Speaker 5: and we see outbreaks and hospitalizations and deaths occurring downstream,
27:28
Speaker 5: you know, in various pockets, like we've seen with measles,
27:31
Speaker 5: for example, And so I think that from a public
27:33
Speaker 5: health standpoint, this has not been good. I do think
27:36
Speaker 5: it's interesting to see kind of how, you know, the
27:40
Speaker 5: sort of rise of you know, individualized decision making patient
27:45
Speaker 5: directed care is like intersecting with that broad trend which
27:50
Speaker 5: has been playing out for the last fifteen twenty years,
27:52
Speaker 5: is really, you know, having an interesting kind of impact
27:57
Speaker 5: on this topic.
27:58
Speaker 2: I don't know much about the meat outbreak, but can
28:01
Speaker 2: we attribute that to a decrease in vaccinations?
28:06
Speaker 5: There's no question that, you know, when we see like
28:08
Speaker 5: the measles outbreaks, it's inevitable that those stories are accompanied
28:12
Speaker 5: by evidence of drops in the local area in vaccination
28:15
Speaker 5: rates and of clusters of essentially under immunized communities. That's
28:20
Speaker 5: not the whole story, right. We live in a world
28:22
Speaker 5: where there's a lot more international travel, and that's also
28:25
Speaker 5: something that's leading to much faster, you know, transmissions of
28:30
Speaker 5: infectious diseases. But there's no question that whenever you look
28:33
Speaker 5: at these little pockets where we have these terrible outbreaks.
28:38
Speaker 5: It's because the local community has a lower rate of
28:40
Speaker 5: vaccinations and we have under immunized communities that are creating
28:44
Speaker 5: more risk for everybody in that in that community.
28:47
Speaker 2: We know that the federal government in different areas is
28:51
Speaker 2: changing what's on websites, taking down you know, scientific information.
28:55
Speaker 2: I mean, they're changing the history in the parks. So
28:58
Speaker 2: I saw a report from the CDC the flu vaccine
29:01
Speaker 2: didn't work very well in the US this year, one
29:05
Speaker 2: of the worst effectiveness rates in more than a decade,
29:07
Speaker 2: And I wondered, I mean, can I believe what the
29:10
Speaker 2: CDC says.
29:12
Speaker 5: We haven't gotten to a point yet where anyone is
29:14
Speaker 5: accusing any government website as being outwardly false. Look, I
29:20
Speaker 5: think what we're seeing is really that the framing of
29:23
Speaker 5: the data is shifting more than the data, you know, itself.
29:27
Speaker 5: So I do think that if you're anyone who's reading
29:30
Speaker 5: this needs to ask the question when they see reports
29:32
Speaker 5: like the one you're alluding to, has the data really changed,
29:36
Speaker 5: Has all of a sudden, you know, the data on
29:38
Speaker 5: flu vacciness effectiveness really weakened, or are we just seeing
29:42
Speaker 5: a different framing of the issue and an emphasis on
29:47
Speaker 5: uncertainty and a de emphasis on population level benefits, and
29:52
Speaker 5: you know, I think it requires all of us to
29:54
Speaker 5: be more intelligent consumers. I mean, I think back to
29:57
Speaker 5: the beginning of COVID when we heard, you know, a
30:00
Speaker 5: downplaying of masking, and then we only later learned right
30:03
Speaker 5: that some of the public health speak coming out of
30:07
Speaker 5: CDC that was downplaying masking was really to ensure that
30:10
Speaker 5: masks were available and inventory could get to places where
30:14
Speaker 5: it was needed most in health systems. And so I
30:16
Speaker 5: do think it's confusing, right, We're getting a lot of
30:19
Speaker 5: We're getting less certainty, more mixed signals, and I do
30:21
Speaker 5: think people need to be really looking carefully at what
30:26
Speaker 5: the content is and what the agenda in that content is.
30:30
Speaker 5: Although I hopefully we haven't gotten to a place where
30:33
Speaker 5: we're getting actual misinformation. I don't think that's the case.
30:36
Speaker 2: That's healthcare attorney Harry Nelson a partner at Leech Tishman
30:40
Speaker 2: Nelson Hardiman. And that's it for this edition of The
30:43
Speaker 2: Bloomberg Law Show. Remember you can always get the latest
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Speaker 2: Wall Street Time. I'm June Grosso and you're listening to
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