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Amy Coney Barrett's Impact on the Supreme Court · Bloomberg Intelligence

• 0:01
  Speaker 1: This is a Bloomberg Radio special selecting the next Supreme
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  Speaker 1: Court Justice. I'm David Weston. Well. President Tromp has made
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  Speaker 1: it official, nominating Amy Coney Barrett to replace the late
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  Speaker 1: Justice Ruth Bader Ginsburg on the High Court. She is
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  Speaker 1: a woman of unparalleled achievement, towering intellect, sterling credentials, and
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  Speaker 1: unyielding loyalty to the Constitution. Judge Amy Coney Barrett, it's
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  Speaker 1: a pick that has the potential to shift the balance
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  Speaker 1: of the Supreme Court for decades to come. Over the
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  Speaker 1: next hour, we'll look at the implications, discuss the politics
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  Speaker 1: around the pick, and examine Judge Barrett's record from her
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  Speaker 1: start as a clerk for Justice Antony Scalia to her
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  Speaker 1: time on the bench of the Seventh Circuit Court of Appeals.
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  Speaker 1: But first, let's start with some initial reaction from our
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  Speaker 1: Bloomberg News and Bloomberg Law Supreme Court reporters Greg Store
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  Speaker 1: and Kimberly Strawbage Robinson. So, Greg, I'll start with you.
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  Speaker 1: This hardly came is a surprise. People basically were predicting it. No. Yeah,
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  Speaker 1: this is a name that we were all talking about
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  Speaker 1: for days. It's a name McDonald Trump told us. He
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  Speaker 1: was very seriously considering, and it's somebody who he interviewed
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  Speaker 1: before he selected Brett Kavanaugh for the last opening. Yeah.
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  Speaker 1: And at the same time, Kimberly, it's important these days
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  Speaker 1: to know something about your nominee and how they're likely
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  Speaker 1: to rule. This nominee is an academic. She's written a
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  Speaker 1: fair amount, she said, sort of how she approaches judging,
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  Speaker 1: and so they kind of know her approach, don't they.
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  Speaker 1: They do. When she was a law professor at Notre Dame,
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  Speaker 1: she was there for a number of years, she really
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  Speaker 1: focused on originalism and statutory construction and really in the
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  Speaker 1: mold of her former boss, Justice Scalia, and on the
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  Speaker 1: Seventh Circuit. While she hasn't been there that long, just
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  Speaker 1: since October, that has been her record on the court,
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  Speaker 1: following those judicial ideologies. Yeah, when you hear things like originalism,
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  Speaker 1: which certainly is something that Justice Scalia espoused, you automatically
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  Speaker 1: almost think about role against Wade an abortion, don't you, Greg,
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  Speaker 1: because that's something that the Conservatives was saying for some time.
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  Speaker 1: I don't see the right to have an abortion in
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  Speaker 1: the constitution. Yeah, you certainly do. It really hard to
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  Speaker 1: square Roe v. Wade with the way that conservatives apply originalism,
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  Speaker 1: and so yes, that that is almost an implicit criticism
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  Speaker 1: of the way that decision was made in an amy
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  Speaker 1: Comy Barrett's case. We also have some things she has
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  Speaker 1: said about abortion in law review articles where she's made
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  Speaker 1: clear she has a personal objection to abortion and sees
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  Speaker 1: it as being immoral. So you can bind those two things,
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  Speaker 1: and certainly one would expect she's gonna be very skeptical
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  Speaker 1: of Roe v. Wade comes before the court. Well and Kimberly,
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  Speaker 1: that takes us almost automatically at the confirmation hearing when
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  Speaker 1: she was nominated to go on the Court of Appeals
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  Speaker 1: where you had that now famous exchange with Diane Finstein,
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  Speaker 1: the senator from California, who pointed to a religion and
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  Speaker 1: then actually took a fair amount of criticism raising religion
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  Speaker 1: as an issue. Well, that's right, and Senator Finstein was
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  Speaker 1: really asking about one of those many articles that Greig
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  Speaker 1: mentioned at any Coney Barrett wrote when she was an academic,
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  Speaker 1: which argued that Catholic judges should recuse themselves from death
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  Speaker 1: penalty cases, which of course has implications for the abortion
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  Speaker 1: She said that wouldn't be what she does when she's
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  Speaker 1: sitting on federal Court. But it did bring up this
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  Speaker 1: controversy where Diane Feinstein said that the dogma lived loudly
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  Speaker 1: within any Coney Barrett and it really made her sort
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  Speaker 1: of a hero for religious conservatives. It will be interesting
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  Speaker 1: to see if this comes up, how it comes up
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  Speaker 1: in confirmation hearings, Gregg, and those will be apparently happening
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  Speaker 1: fairly soon if the President of the United States has
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  Speaker 1: his way. At the same time, if you look at
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  Speaker 1: her record, it is a pretty stellar record. Number one
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  Speaker 1: of the class of Notre Dame law school executor, the
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  Speaker 1: law review clerks in the Supreme Court, and before that
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  Speaker 1: for a prestigious court appeals judge. It's pretty hard to
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  Speaker 1: say she's not qualified for the job. Yeah, this isn't
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  Speaker 1: going to be a fight over qualifications or credentials. There's
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  Speaker 1: no question she has those, and one will expect that
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  Speaker 1: she will present herself very well in terms of her
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  Speaker 1: knowledge of the law, on her ability to do the job.
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  Speaker 1: You'll really be about the ideology and perhaps any Hayden
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  Speaker 1: motivations Democrats think she has, and what she would do
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  Speaker 1: to the Supreme Court. At this time when we're about
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  Speaker 1: to have a presidential election. Kimberly strikes me there's something
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  Speaker 1: a little bit artificial when we have a nomination to
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  Speaker 1: the Supreme Court, we focus on one individual. They are
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  Speaker 1: one of nine, and we don't want to underestimate the
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  Speaker 1: collegiality or lack of collegiality, because some justices of outside
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  Speaker 1: influence because they get along well with others and con
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  Speaker 1: persuade others. Others are somewhat of loaners. Do we know
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  Speaker 1: anything about her style on the Seventh Circuit? I think
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  Speaker 1: we can look at her combromation hearing for the Seventh
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  Speaker 1: Circuit to see the kind of support that she got
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  Speaker 1: from the people that she worked with. All of the
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  Speaker 1: law professors at Notre Dame and backed her nomination to
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  Speaker 1: the court. And she was hugely popular among her students
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  Speaker 1: as well. So she does seem like somebody who would
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  Speaker 1: fit into that collegiality at the Supreme Court. But it's
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  Speaker 1: famously Ben said that a new justice always changes the court,
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  Speaker 1: and of course that's going to be true in her
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  Speaker 1: case as well. Gregg, we are in Bloomberg, so we
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  Speaker 1: should talk about what we think this might mean or
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  Speaker 1: not mean for the economy and for business. What would
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  Speaker 1: business expect of a Justice Barrett. Well, first of all,
• 5:10
  Speaker 1: business would tear a lot about our views on the
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  Speaker 1: Affordable Care Act. The Court's going to hear arguments a
• 5:14
  Speaker 1: week after the election. Depending on how that falls out,
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  Speaker 1: she may or may not participate in that case. She
• 5:20
  Speaker 1: was critical of Chief Justice Roberts's reasoning back when he
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  Speaker 1: cast the kebo to uphold the law in not exactly
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  Speaker 1: the same issue before the Court now, but related. And
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  Speaker 1: then you know she haven't because she's not on the
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  Speaker 1: d C Circuit, which handles so much of the regulatory issues.
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  Speaker 1: She hasn't had as much regulatory work as say Brett
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  Speaker 1: Kavanaugh did when he joined the Supreme Court, but one
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  Speaker 1: would imagine that her instincts would be with people like
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  Speaker 1: Neil Gorsag and Brett Kavanaugh to be skeptical of agency
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  Speaker 1: and authority. That could mean scaling back some regulations. You
• 5:53
  Speaker 1: talk about Justice Kavanaugh and scale regulation, and Kimberly, it
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  Speaker 1: brings you back to some challenges to the delegation. Doctor Frankly,
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  Speaker 1: we saw a little bit of a hint of it,
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  Speaker 1: perhaps in the CFPP decision last term, where they said,
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  Speaker 1: basically the president should have the right to fire when
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  Speaker 1: it's just one person of heads an agency. Does this
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  Speaker 1: tell us anything about the likelihood that the Supreme Court
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  Speaker 1: may say, you know, what agencies should be more subject
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  Speaker 1: to the president? We really don't know. She doesn't have
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  Speaker 1: a very strong record on that, just given where she
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  Speaker 1: sits in the federal bench. But the Supreme Court is
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  Speaker 1: considering a similar case uh this term where the timing
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  Speaker 1: looks right for a Trumps dominated be seated on the
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  Speaker 1: court so we could get our first indications whenever they
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  Speaker 1: hear or an argument how she thinks about this issue.
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  Speaker 1: Many thanks now to Bloomberg News Supreme Court reporter Gregg
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  Speaker 1: Store and Bloomberg Law Supreme Court reporter Kimberly Strawbridge Robinson
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  Speaker 1: for more on the judge and the possible influence she
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  Speaker 1: could have on the High Court. Welcome Leah Lippmann, Professor
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  Speaker 1: of Constitutional law at the University of Michigan. So, professor,
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  Speaker 1: thank you so much for joining us. Let's start out
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  Speaker 1: first with maybe a disclaimer. I mean, you have served
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  Speaker 1: on the Court as a clerk for Justice Kennedy. Maybe
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  Speaker 1: we should be a little cautious about how much we
• 7:00
  Speaker 1: and predict about someone when they come up with spru
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  Speaker 1: Justice because often they're not what we thought they would be.
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  Speaker 1: I think that that's right, although I do think that
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  Speaker 1: the parties, and in particular at the Republican Party, have
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  Speaker 1: gotten a little bit better at selecting sustics whose votes
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  Speaker 1: that can be more confident. In ye, fair Enough did
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  Speaker 1: put a lot of work into that. Actually she did
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  Speaker 1: clerk for Justice Scalia. Uh, and obviously he was an originalist.
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  Speaker 1: Really believe you got to go back to the original language.
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  Speaker 1: She also has I understand, as an academic for some
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  Speaker 1: fifteen years at Notre Dame in law school, wrote on
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  Speaker 1: the subject, and she embraces that doctrine explain how that
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  Speaker 1: could affect how she rules at the Supreme Court. So,
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  Speaker 1: under the doctrine of originalism, you're supposed to interpret the
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  Speaker 1: Constitution as it was originally understood when it was ratified.
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  Speaker 1: Um So, using that methodology, Professor Barrett or when she
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  Speaker 1: was Professor Barrett, authored law review articles explaining that under
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  Speaker 1: an originalist theory of the Constitution, decisions like Brown for
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  Speaker 1: support of education, which helps us segregation and public education
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  Speaker 1: as un constitutional might be wrong, we decide. She also
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  Speaker 1: suggested that social security as we know it is unconstitutional,
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  Speaker 1: and that the admission of the state of West Virginia
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  Speaker 1: was illegal as well. However, her scholarship was grappling with
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  Speaker 1: this question about what do you do when originalism points
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  Speaker 1: in one direction and the Supreme Court cases point in another.
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  Speaker 1: And she did not purport to say what a judge
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  Speaker 1: should do under those circumstances, and said she was writing
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  Speaker 1: about how conscientious legislators should behave when they think that
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  Speaker 1: the original meaning of a constitution point in one direction
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  Speaker 1: and Supreme Court precedent in another. So we don't really
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  Speaker 1: know how she will be in cases where the original
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  Speaker 1: public meaning and her assessment of the Constitution points in
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  Speaker 1: one direction and the Supreme Court cases point in another.
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  Speaker 1: The President's nominees to date have really taken two approaches
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  Speaker 1: to that question. You have Justice Courss on the one hand,
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  Speaker 1: he largely thinks that when the Supreme Court got it wrong,
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  Speaker 1: you should just abandon a case, even if the Supreme
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  Speaker 1: Court has resolved it the other way. Justice Kavanaugh, for
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  Speaker 1: his part, has not gone as far as Justice Corsich
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  Speaker 1: as far as abandoning the Supreme Court's prior cases. So
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  Speaker 1: this is a terribly important point. So we call it
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  Speaker 1: started decisive right, which is basically, we should follow President.
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  Speaker 1: We don't turn on a dime in the Supreme Court,
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  Speaker 1: and particularly perhaps when it comes to the Constitution. We
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  Speaker 1: saw Chief Justice roberts Just's last term embraced that in
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  Speaker 1: the abortion case. Do we have a sense of how
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  Speaker 1: that might cut on the abortion issue. A lot of
• 9:30
  Speaker 1: people talk about Amy Corny Barrett in connection with abortion.
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  Speaker 1: So we don't have any great indication based on Judge
• 9:38
  Speaker 1: Barrett or Professor Barrett's writings, either as a scholar or
• 9:42
  Speaker 1: as a judge. But I would say the most important
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  Speaker 1: indication that we have is the fact that the President
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  Speaker 1: promised to appoint nominees who would overturn Roe versus Wade.
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  Speaker 1: The fact that Senator Josh Holley of Missouri that he
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  Speaker 1: would only vote for nominees who would overturn Roe versus Wade.
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  Speaker 1: And the fact that Senator Holly has indicated that Judge
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  Speaker 1: Barrett passes his tests, and the fact that the President
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  Speaker 1: nominated her suggest they believe and they have been told
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  Speaker 1: by people who know her, that she would vote to
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  Speaker 1: overturn Row. Another great indication about how she might vote
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  Speaker 1: in those cases is the fact that both of the
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  Speaker 1: president's nominees just last term in Louisiana abortion, a case
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  Speaker 1: that you mentioned, voted to overturn the court's most recent
• 10:28
  Speaker 1: abortion case, Whole Woman's Health versus. Teller said that was
• 10:31
  Speaker 1: the decision, of course, that invalidated the admitting privileges requirement
• 10:34
  Speaker 1: with Texas and accident, and both Justice Gorfish and Justice
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  Speaker 1: Kavanaugh would have overturned that deficient and allowed Louisiana to
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  Speaker 1: announce an admitting privileges requirement and to show just how
• 10:44
  Speaker 1: powerful it is. Chief Justice Roberts, as I recall, said,
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  Speaker 1: look at I voted in the dissent on the prior case,
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  Speaker 1: so I think it's wrong and decided, but I'm still
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  Speaker 1: going to enforce it because it's the law exactly and teach.
• 10:54
  Speaker 1: Justice Roberts is a justice who believes that starry, decisive
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  Speaker 1: and principles of respect for precedents should occasionally carry today. However,
• 11:02
  Speaker 1: the President's too most recent nominees have been more inclined
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  Speaker 1: to read that's the precedent and just based on that record,
• 11:09
  Speaker 1: and again people like Senator Holly's faith in Judge Coney
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  Speaker 1: Barrett that suggests that she might be more in the
• 11:16
  Speaker 1: mold of a Justice Cabinet or juice courseitch than the
• 11:18
  Speaker 1: Chief Justice. One of the cases that is scheduled at
• 11:21
  Speaker 1: least right now to be argued is the Affordable Care
• 11:23
  Speaker 1: Act case coming back up again that as we know,
• 11:26
  Speaker 1: some of the Conservatives were disappointed with Chief Justice Drawber's
• 11:28
  Speaker 1: first time around. Is I understand it, professor when she
• 11:31
  Speaker 1: was professor there has actually been critical of what Chief
• 11:34
  Speaker 1: Justice Roberts said in that case. Yes, although this version
• 11:38
  Speaker 1: of the Affordable Care Act case is a little bit
• 11:42
  Speaker 1: wonkier because it really involves a two steps challenge. And
• 11:47
  Speaker 1: the first argument in the case is whether the two
• 11:50
  Speaker 1: thousand seventeen amendments to the Affordable Care Act by the
• 11:54
  Speaker 1: Republican Congress strengthened the individual mandate and rendered it on
• 11:59
  Speaker 1: constitution and all, and if the mandate is in fact unconstitutional,
• 12:04
  Speaker 1: whether the rest of the Affordable Care Act must fall
• 12:07
  Speaker 1: as well. Those arguments are, to put it mildly, pretty
• 12:12
  Speaker 1: legally outlandish. And so even if she disagrees with the
• 12:18
  Speaker 1: Chief Justice's vote in the two thousand twelve decision that
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  Speaker 1: upheld the constitutionality of the Affordable Care Act, that doesn't
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  Speaker 1: necessarily mean and she would vote with the challengers in
• 12:29
  Speaker 1: this case, although the fate of the Affordable Care Acts
• 12:32
  Speaker 1: certainly did become a lot more precarious on Justice Ginsburg's passing,
• 12:38
  Speaker 1: because to date, every judge who has been appointed by
• 12:42
  Speaker 1: a Republican president has endorsed the challenger's arguments, finding that
• 12:46
  Speaker 1: the Affordable Care Act as amended is unconstitutional and that
• 12:50
  Speaker 1: some of the other provisions in the Affordable Care Act
• 12:53
  Speaker 1: have to fall together with that, including its protections for
• 12:57
  Speaker 1: people with pre existing conditions. Okay, many thanks, really appreciate
• 13:00
  Speaker 1: your being with us. That's Leo Littman. She's professor of
• 13:03
  Speaker 1: constitutional law at the University of Michigan. Sources tell us
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  Speaker 1: President Trump views the judge as a smart, hard nosed
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  Speaker 1: conservative who can have a long tenure on the High Court,
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  Speaker 1: But how will her legal views shape the Court's approach
• 13:15
  Speaker 1: to the economy and to business. Joining us now to
• 13:18
  Speaker 1: help answer that question is Ellen Werman. He is associate
• 13:21
  Speaker 1: professor at the Sandra Day O'Connor College of Law at
• 13:24
  Speaker 1: Arizona State University. Professor Werman specializes in administrative and constitutional law.
• 13:29
  Speaker 1: So welcome, professor, it's great to have you here. We
• 13:31
  Speaker 1: tend to think about Supreme Court at least the popular
• 13:33
  Speaker 1: culture in terms of abortion and gun control. But there
• 13:36
  Speaker 1: are a lot of things the court does that really
• 13:37
  Speaker 1: affect business as well. Do we have any sense of
• 13:40
  Speaker 1: how a Judge Barrett becoming a justice Barrett might affect business?
• 13:45
  Speaker 1: This is a hot topic sort of among lawyer circles
• 13:47
  Speaker 1: and legal circles, but also been among the business community.
• 13:50
  Speaker 1: Is the role of the administrative state, the role of
• 13:52
  Speaker 1: the administrative state in our constitutional system and its impact
• 13:55
  Speaker 1: on businesses because, you know, in the traditional separation of
• 13:58
  Speaker 1: powers model, Congress makes a law, the President executes the
• 14:01
  Speaker 1: law on the courts that judicate the law, and businesses
• 14:03
  Speaker 1: kind of know where to go if you want a
• 14:05
  Speaker 1: law pass, to go to Congress, right if you're you're
• 14:07
  Speaker 1: in trouble, you go to the courts and so on.
• 14:09
  Speaker 1: But today, more and more administrative agencies make the regulations
• 14:13
  Speaker 1: right that buying businesses and that affect the business community,
• 14:16
  Speaker 1: that tells businesses what they can and can do. These
• 14:18
  Speaker 1: regulations are made pursued too really really broad delegations of
• 14:22
  Speaker 1: power from Congress. You know, Congress likes to pass statutes
• 14:24
  Speaker 1: like you know, there shall be clean air, and it
• 14:27
  Speaker 1: leaves it up to the agencies to figure out, well,
• 14:28
  Speaker 1: who has to pollute less and you know the cost
• 14:31
  Speaker 1: on businesses, And so we may see some revival of
• 14:34
  Speaker 1: some older doctrines like the non delegation doctrine and other
• 14:37
  Speaker 1: doctrines to try to reign in the administrative state. And
• 14:40
  Speaker 1: and this has the potential to be a more business
• 14:43
  Speaker 1: friendly environment as a result of that. So when you
• 14:45
  Speaker 1: talk with the administrative state, you're talking I think larger
• 14:48
  Speaker 1: about some of what we call the independent agencies, the
• 14:50
  Speaker 1: f c C, the FTC, the sec that are appointed
• 14:54
  Speaker 1: by political people, but actually they have some tenure beyond that.
• 14:58
  Speaker 1: That's right, and it's not just of these independent agencies,
• 15:01
  Speaker 1: the so called independent commissions. What makes them independent is
• 15:03
  Speaker 1: that they're somewhat insulated from the president's ability to fire them.
• 15:06
  Speaker 1: They're insulated by what's called for cause removal provisions. But
• 15:09
  Speaker 1: also you know executive branch agencies that that aren't protected
• 15:13
  Speaker 1: that way, the Environmental Protection Agency OSHA, the Occupational Safety
• 15:17
  Speaker 1: and Health Administration under the Department of Labor. You know,
• 15:19
  Speaker 1: the these can be subcabinet departments. Were in theory there's
• 15:23
  Speaker 1: a direct line of controls of the president, but for
• 15:25
  Speaker 1: a large measure, They operate pretty autonomously, you know, pursuant
• 15:29
  Speaker 1: to these broad authorities that that Congress gives the agencies.
• 15:32
  Speaker 1: But yes, but independent agencies are sort of the biggest
• 15:34
  Speaker 1: culprit what people tend to think about FTC SEC as
• 15:37
  Speaker 1: you say, but it's also other, you know, other agencies
• 15:39
  Speaker 1: as well that aren't technically independent. But but they still
• 15:42
  Speaker 1: exercise a lot of autonomous power. Given how large the
• 15:46
  Speaker 1: country has gotten, the commerce has gotten, business has gotten
• 15:49
  Speaker 1: Do we have any alternative but to delegate some of this?
• 15:51
  Speaker 1: The president himself can administer every one of these laws. Yeah,
• 15:54
  Speaker 1: it's true, you know, the society has gotten more complex.
• 15:57
  Speaker 1: Congress doesn't have the capacity and the touching spand even
• 16:01
  Speaker 1: if it had the desire, you know, to to legislate
• 16:03
  Speaker 1: in more details. So maybe a delegation of powers inevitable.
• 16:06
  Speaker 1: But that doesn't mean there aren't you know, other options
• 16:09
  Speaker 1: and potentially business friendly options. You know. The reins Act
• 16:12
  Speaker 1: is an example. Ran Paul introduces it, I think every year.
• 16:15
  Speaker 1: The reins Act basically would say, look for important and
• 16:19
  Speaker 1: economically impactful regulations. The agency can go ahead and propose
• 16:22
  Speaker 1: the regulation, go through the process, promulgate the regulation, but
• 16:25
  Speaker 1: before it actually takes effect, before it has the force
• 16:28
  Speaker 1: and effect of actual law, Congress has to vote on it.
• 16:31
  Speaker 1: So Judge Barrett has been on the Seventh Circuit Court
• 16:33
  Speaker 1: of Appeals. Before that, she was fifteen years at Notre
• 16:35
  Speaker 1: Dame Law School on the faculty there. Do we have
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  Speaker 1: any indication from her writings or rulings or writings how
• 16:40
  Speaker 1: she might come down on this issue. I really can't say.
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  Speaker 1: I mean, as a general, you know, an originalist, someone
• 16:47
  Speaker 1: who takes the founder's intention seriously. You know, one can
• 16:49
  Speaker 1: assume that you'll have the same or similar views at
• 16:52
  Speaker 1: least to Justice Courseitch and Just Justice Kavanaugh and Justice
• 16:55
  Speaker 1: Thomas and so on. But you know, I consider myself
• 16:57
  Speaker 1: an originalist, and I have a and I write a
• 16:59
  Speaker 1: lot on the nondelegation in doctrine, and I have very
• 17:01
  Speaker 1: quirky views. You know, My view of what Congress is
• 17:04
  Speaker 1: a lot to delegate is actually much more capacious than
• 17:06
  Speaker 1: Justice Thomas's view. So there is an intra originalist disagreement
• 17:10
  Speaker 1: over the scope of the nondelegation doctrine, over just how
• 17:14
  Speaker 1: limited Congress has to be and just where you know,
• 17:17
  Speaker 1: the new justice will fall um you know, is yet
• 17:19
  Speaker 1: to be determined. Are there possible raifications to go even
• 17:22
  Speaker 1: beyond delegation or non delegation to the scope of the
• 17:25
  Speaker 1: commerce clause? Because we saw a Chief Justice Roberts, even
• 17:28
  Speaker 1: as he voted to uphold the Affordable Care Acts based
• 17:30
  Speaker 1: on the tax point, did a lot of Dictum, I thought,
• 17:34
  Speaker 1: at least saying, you know what, I'm not sure the
• 17:35
  Speaker 1: Commerce Clause goes that broadly, which would be a very
• 17:37
  Speaker 1: big departure from where the Supreme Court has been. Yeah,
• 17:40
  Speaker 1: I think that's right. Um, I I think we already
• 17:43
  Speaker 1: have had the votes before. As you say, under the
• 17:46
  Speaker 1: Affordable Care Act case, the Supreme Court basically said in
• 17:49
  Speaker 1: the fives or four part of its opinion that it
• 17:51
  Speaker 1: would violate the Commerce clause to force people into commerce.
• 17:54
  Speaker 1: But even then, you know, forcing people into commerce is
• 17:57
  Speaker 1: pretty narrow. I mean, it's not like Congress does something
• 17:59
  Speaker 1: like the individ to mandate that often. Right. The reality
• 18:02
  Speaker 1: is today almost everything affects commerce. Every you know, all
• 18:05
  Speaker 1: economic activity in the States affect interesting commerce somehow, and
• 18:09
  Speaker 1: I find it very unlikely that the Supreme Court is
• 18:11
  Speaker 1: going to reconsider those cases. Fascinating. This is really truly helpful.
• 18:15
  Speaker 1: Thank you so much to Professor Ellen Wherman. He is
• 18:18
  Speaker 1: from Arizona State. The pick of Barrett is likely to
• 18:21
  Speaker 1: energize conservatives and liberals alike, just over five weeks before
• 18:25
  Speaker 1: Americans go to the polls. Barrett is only forty eight
• 18:28
  Speaker 1: years old. She also survived a tough confirmation fight in
• 18:31
  Speaker 1: tween with a vote that fell largely along party lines.
• 18:36
  Speaker 1: How will it shape up this time? Joining us to
• 18:38
  Speaker 1: discuss is Bloomberg Political contributors Genie's Anno and Rick Davis.
• 18:42
  Speaker 1: Genie is professor of political science that I own a college,
• 18:45
  Speaker 1: and Rick is former campaign manager for the late John McCain.
• 18:48
  Speaker 1: So welcome to both of you here. Genie, let me
• 18:50
  Speaker 1: start with you. I mean, as a practical matter, there
• 18:52
  Speaker 1: may be a lot of heat and light here, but
• 18:53
  Speaker 1: is there any question about how this is going to
• 18:55
  Speaker 1: come out as a practical matter. As a practical matter,
• 18:58
  Speaker 1: I don't think so. I think it is be clear
• 19:00
  Speaker 1: that we are going to see not just a nomination,
• 19:04
  Speaker 1: but a vote on a confirmation, and barring you know,
• 19:07
  Speaker 1: something that comes up which is unlikely because this is
• 19:11
  Speaker 1: somebody who has been vetted, we are going to see
• 19:13
  Speaker 1: a candidate get the vote on the floor. So the
• 19:16
  Speaker 1: last time we had one of these Rick, remember Justice Kavanaugh,
• 19:18
  Speaker 1: now Justice Kavanaugh, then Judge Kevina. There was a lot
• 19:21
  Speaker 1: of electricity in that in that hearing from both sides.
• 19:24
  Speaker 1: You remember how Lindsay Graham really went after the Democrats
• 19:27
  Speaker 1: at one point. The republic is going to be really
• 19:30
  Speaker 1: going after the Democrats are given the fact that they
• 19:32
  Speaker 1: have the votes that they sort of lay low. Well,
• 19:34
  Speaker 1: I think that they're gonna lay low. They've already set
• 19:37
  Speaker 1: the stage. Mitch McConnell, the leader of the Senate Caucus
• 19:40
  Speaker 1: of Republicans, has already said that much to do about nothing.
• 19:44
  Speaker 1: This President gets to make his pick, and the Senate
• 19:47
  Speaker 1: has already counted the votes, and he's got the votes
• 19:49
  Speaker 1: to pass us. So he's going to play this out
• 19:52
  Speaker 1: as it's a foregone conclusion and try to actually make
• 19:55
  Speaker 1: the Democrats look like they're making much to do about nothing.
• 19:58
  Speaker 1: One of the things that struck me and looking at
• 19:59
  Speaker 1: the membership on the Jiciary Committee's you've got some centators
• 20:02
  Speaker 1: up for re elections and some of them not clear
• 20:05
  Speaker 1: how it's gonna come out. I mean, Lindsay Graham's the chair.
• 20:07
  Speaker 1: He certainly said how he's going to come out. But
• 20:09
  Speaker 1: what about Tom Tillison, even more important, maybe Joni Earns
• 20:12
  Speaker 1: from Iowa. Rick, does she have to be a little
• 20:14
  Speaker 1: careful about how she plays this, You know, look, I
• 20:16
  Speaker 1: think all of them do. I mean, I wouldn't exclude
• 20:19
  Speaker 1: Lindsey Graham from the list of people who have to
• 20:21
  Speaker 1: pay attention to the politics of this. He was in
• 20:24
  Speaker 1: pretty bad shape before Kavanaugh and attributes to kavanaugh defense
• 20:29
  Speaker 1: to helping him get through the primary and rebuild his
• 20:32
  Speaker 1: support amongst the base. So I think that as many
• 20:36
  Speaker 1: people as you have for you for passing a conservative judge,
• 20:41
  Speaker 1: I think you have an equal amount these days who
• 20:44
  Speaker 1: are going to be excited about the fact that you
• 20:47
  Speaker 1: ramrodded the process through. So even though it's not going
• 20:50
  Speaker 1: to be a decision of whether you're gonna win or
• 20:52
  Speaker 1: lose on about but the fact that it is being
• 20:54
  Speaker 1: forced into decision before election day is going to cause
• 20:58
  Speaker 1: some trouble for the till US's is in the earnest
• 21:01
  Speaker 1: who have close races in states that intensity of vote
• 21:05
  Speaker 1: is going to make the difference. So, Jennie, one of
• 21:07
  Speaker 1: things that strikes me is, given how little time we
• 21:09
  Speaker 1: have before the election, who occupies the airwaves really counts
• 21:13
  Speaker 1: a fair amount. This will really occupy the airwaves to
• 21:16
  Speaker 1: some extent some of the attention of the electorate's certainly
• 21:19
  Speaker 1: President Trump likes it that way from his point of
• 21:21
  Speaker 1: view for his base. But one of a Kamala Harris,
• 21:23
  Speaker 1: she's on this committee too, and she's been pretty effective
• 21:26
  Speaker 1: as a prosecutor, as it were, in these hearings before. Yeah, absolutely,
• 21:30
  Speaker 1: we're going to see an awful lot of of Kamala
• 21:32
  Speaker 1: Harris during this this period. I think to your point,
• 21:36
  Speaker 1: the president is quite happy that the focus has changed
• 21:40
  Speaker 1: from something like COVID that he doesn't do well in
• 21:42
  Speaker 1: the polls on to something like this, which he feels
• 21:46
  Speaker 1: strongly and the data seems to support this does energize
• 21:50
  Speaker 1: his base. But I think one of the real interesting
• 21:53
  Speaker 1: questions here, when we're talking about somebody like a Kamala
• 21:56
  Speaker 1: Harris or a Corey Booker who's also on the committee,
• 22:00
  Speaker 1: or you know, an Amy Klobasher, is is this going to,
• 22:04
  Speaker 1: for the first time, maybe since the early seventies, really
• 22:08
  Speaker 1: energize the left as well. Um for a long time,
• 22:11
  Speaker 1: because it was Republicans who felt like they were losing
• 22:14
  Speaker 1: as a result of these judiciary picks and the makeup
• 22:17
  Speaker 1: of the Supreme Court. They were the ones that were
• 22:19
  Speaker 1: so focused on the makeup and voting on this type
• 22:22
  Speaker 1: of issue. But we're seeing just a lot of energy
• 22:25
  Speaker 1: on the left of you know, ninety million dollars raised
• 22:28
  Speaker 1: in the twenty four hour period after Ruth bader Ginsburg past.
• 22:33
  Speaker 1: So I do think there is a question as to
• 22:35
  Speaker 1: who this energizes, and I'm not sure we're going to
• 22:38
  Speaker 1: know the answer to that until we see turnout in
• 22:41
  Speaker 1: the election. Well, Rick, you've managed these campaigns, including for
• 22:45
  Speaker 1: president have of John McCain. Is this something that's big
• 22:48
  Speaker 1: enough that could actually change the order of preference in
• 22:51
  Speaker 1: terms of what people are concerned about? Before this, we
• 22:54
  Speaker 1: thought we knew pretty much it's the economy, and it's coronavirus,
• 22:57
  Speaker 1: maybe some healthcare. Could this really elevate this issue a
• 23:01
  Speaker 1: social values issue up the ladder. You know, it's got
• 23:04
  Speaker 1: a lot of competition. As you point out, COVID and
• 23:07
  Speaker 1: the economy have dominated the political scenes since March, and
• 23:11
  Speaker 1: social unrest that's happening all around the country and most
• 23:14
  Speaker 1: notably even this week in Louisville, has been the issue
• 23:18
  Speaker 1: that has really sprung into this presidential campaign, mostly the
• 23:24
  Speaker 1: Supreme Court politics revolve around the activists and the folks
• 23:29
  Speaker 1: who really followed this on a partisan basis. So the
• 23:32
  Speaker 1: likelihood that this is going to somehow change swing voters
• 23:35
  Speaker 1: minds as to how this is conducted, it is probably unlikely.
• 23:39
  Speaker 1: I would say as a campaign manager, I hated things
• 23:41
  Speaker 1: like this because if I were running the Trump campaign
• 23:44
  Speaker 1: and I had to make up a lot of ground,
• 23:47
  Speaker 1: I would look at this issue is saying this is
• 23:48
  Speaker 1: not what's going to get me swing voters, and I'm
• 23:51
  Speaker 1: now going to freeze the election for at least a
• 23:54
  Speaker 1: week after I had nominate this person to all the
• 23:58
  Speaker 1: media attention. It's going to go on them instead of
• 24:01
  Speaker 1: my candidate. And so I must say, freezing an election
• 24:05
  Speaker 1: in the first week of October is not my idea
• 24:08
  Speaker 1: of a good strategy. Well, that's fast, and so Jenny,
• 24:10
  Speaker 1: give me a sense, how does Senator McSally in Arizona
• 24:13
  Speaker 1: feel about this right now? Or form or Jonny Arst
• 24:16
  Speaker 1: we just talked about. We have some Republicans who are,
• 24:18
  Speaker 1: as it were, on the bubble here. Yeah. Absolutely, And
• 24:21
  Speaker 1: of course the Arizona race you mentioned is really really
• 24:25
  Speaker 1: critical because depending on the timing. I mean, we know
• 24:28
  Speaker 1: there will be a nomination and a confirmation hearing, we
• 24:31
  Speaker 1: don't know the timing of any of this yet. And
• 24:34
  Speaker 1: depending on the timing, if we do see this drag
• 24:37
  Speaker 1: on after the election and Kelly wins out in Arizona,
• 24:41
  Speaker 1: he could be in Congress and have a vote on
• 24:44
  Speaker 1: this if he gets to the floor, which I assume
• 24:45
  Speaker 1: it will. So you know this, there's a lot of
• 24:48
  Speaker 1: uncertainty here. And you know, you mentioned some of these
• 24:51
  Speaker 1: Republican senators who are on the CUSP, whether it's Joni
• 24:54
  Speaker 1: Earnest or mcshally, who are you know, quote unquote fighting
• 24:58
  Speaker 1: for their lives to a certain extent, I think it
• 25:00
  Speaker 1: raises an issue for many of these senators, which is
• 25:03
  Speaker 1: that they also need to be home campaigning and not
• 25:07
  Speaker 1: necessarily on this issue. And I think Rick just raised
• 25:10
  Speaker 1: a really good point about the campaign. I think this
• 25:12
  Speaker 1: is one reason you see the Democrats and you see
• 25:16
  Speaker 1: Joe Biden trying to tie this so directly to healthcare,
• 25:20
  Speaker 1: because not only does the Court have the healthcare case
• 25:22
  Speaker 1: on the Obamacare case on November tent, but that is
• 25:25
  Speaker 1: also something that helps Democrats win the election in and
• 25:29
  Speaker 1: take the House and knowing what Rick said. They want
• 25:32
  Speaker 1: to tie the importance of this nomination to the idea
• 25:36
  Speaker 1: not just of something like a social issue like abortion,
• 25:39
  Speaker 1: but something that hits people even more directly. And we've
• 25:42
  Speaker 1: seen it have an impact at the ballot box, and
• 25:44
  Speaker 1: that's healthcare. And so they're trying to put the fear
• 25:47
  Speaker 1: of God in people that this could make something like
• 25:50
  Speaker 1: you know, pre existing conditions and impact the Affordable Care Act. Yeah,
• 25:55
  Speaker 1: and I would I would just extend on that team
• 25:57
  Speaker 1: that Amy Cony Barrett is a big critic of a
• 26:01
  Speaker 1: c A. She has been hostile to it throughout her career,
• 26:04
  Speaker 1: and in the Republicans will make this a big deal
• 26:07
  Speaker 1: that this is their chance to use the court to
• 26:10
  Speaker 1: undermine a c A. And a lot of suburban voters
• 26:14
  Speaker 1: have been supportive of a c A and so this
• 26:16
  Speaker 1: is going to cut both ways. And and so it's
• 26:19
  Speaker 1: going to be interesting to see how, you know, these
• 26:21
  Speaker 1: swing voters react to this kind of news. Not only
• 26:25
  Speaker 1: a critic, she actually specificly criticized Chief Justice Roberts for
• 26:28
  Speaker 1: his ruling in the A c A case. So it
• 26:30
  Speaker 1: really sort of signals where she might well come out
• 26:33
  Speaker 1: in this new challenge from the administration. At the same time, Rick,
• 26:36
  Speaker 1: is this a little too fancy for voters just to
• 26:38
  Speaker 1: get from the Supreme Court to the affordal care healthcare?
• 26:41
  Speaker 1: I saw that Joe Biden's campaign did that just almost immediately,
• 26:44
  Speaker 1: within twenty four hours. That's where they were going with it,
• 26:46
  Speaker 1: after the announcement of Ruth Vader to make this a
• 26:49
  Speaker 1: placeholder for a debate on healthcare. They're going to be
• 26:52
  Speaker 1: very happy at the Biden campaign, right, And so nobody's
• 26:55
  Speaker 1: nobody is trying to make a case that somehow the
• 26:59
  Speaker 1: selection of a judge is going to somehow on its
• 27:03
  Speaker 1: own being issue. But their their views on a c
• 27:06
  Speaker 1: as you just pointed out, are pretty clear and undeniable.
• 27:09
  Speaker 1: And so the Republicans will lean in and say, this
• 27:11
  Speaker 1: is our chance to get rid of a c A.
• 27:13
  Speaker 1: We haven't been able to do it legislatively, but we
• 27:16
  Speaker 1: can do it, you know, through the court. In North Carolina,
• 27:18
  Speaker 1: Donald Trump was out talking about a c A and
• 27:21
  Speaker 1: his new plan once it's gotten rid of that he
• 27:24
  Speaker 1: will implement. So you can tell both sides are girding
• 27:27
  Speaker 1: for the emergence of health care is being the sort
• 27:30
  Speaker 1: of October surprise issue. Finally, Jeannie I wonder if in
• 27:34
  Speaker 1: an election already people were pretty motivated on the one
• 27:36
  Speaker 1: thing that ensures is people are going to vote, whether
• 27:39
  Speaker 1: it's by showing up by mail. And this is going
• 27:41
  Speaker 1: to motivate, as I say, both conservatives and liberals potentially
• 27:44
  Speaker 1: to make sure they cast a vote. Yeah. I think,
• 27:47
  Speaker 1: you know, there's so many issues on the table right
• 27:50
  Speaker 1: now that are so important to people. Were in the
• 27:53
  Speaker 1: midst of a pandemic. Obviously, you've got all the racial
• 27:56
  Speaker 1: and social unrest, You've got questions about, you know, at
• 27:59
  Speaker 1: the same city of your vote when you go in,
• 28:02
  Speaker 1: and then of course you you top it off with
• 28:04
  Speaker 1: a Supreme Court potentially the President having his third picks
• 28:07
  Speaker 1: of the Supreme Court. And I think it really does
• 28:10
  Speaker 1: energize people on both sides. I go back to the
• 28:13
  Speaker 1: fact that because we have an electoral college, it's really
• 28:16
  Speaker 1: the moderate and independent voter in the middle that matters.
• 28:20
  Speaker 1: And I think where they come down and if this
• 28:22
  Speaker 1: motivates them, it's the real question to watch in places
• 28:25
  Speaker 1: like Florida and North Carolina and Wisconsin and Michigan, and
• 28:28
  Speaker 1: the polls suggests aren't very many of those decided left. Okay,
• 28:31
  Speaker 1: many thanks to Bloomberg political contributors jennie's Ao and Rick Davis.
• 28:37
  Speaker 1: This is a Bloomberg Radio special selecting the next Supreme
• 28:40
  Speaker 1: Court Justice. Stay tuned to Bloomberg Radio in the days
• 28:43
  Speaker 1: and weeks ahead for the latest on the fight to
• 28:45
  Speaker 1: confirm Judge emy Cony Barrett to the High Court, plus
• 28:48
  Speaker 1: the latest on the race for the White House, including
• 28:51
  Speaker 1: the first presidential debate. This Tuesday night, We'll bring you
• 28:54
  Speaker 1: live coverage and analysis starting at eight thirty Wall Street
• 28:56
  Speaker 1: Time on both Bloomberg Radio and television. Thanks for listening.
• 29:00
  Speaker 1: I'm David Weston and this is Bloomberg. M HM.