Brett Kavanaugh Is the Most Hated Justice

confirmation hearings. Stephen Colbert seems to make the most of it. Yes, we drank beer. I liked beer. Still like beer. We drank beer. Do you drink beer? Like beer? Still like beer? Drank beer? Then reach for a cold bottle of Kavanaugh Cava. Kavanaugh Beer is full body for great drink ability and Supreme Judge ability, and a recent more Kent University Law School poll seems to confirm the obvious. Kavanaugh had by far the Court's worst net favorability rating of negative eleven

percentage points. The only other Johnstice with a negative rating was Amy Coney Barrett at negative two. My guest is Barbara Perry, a presidential and Supreme Court scholar at the University of Virginia's Miller Center, Barbara From all the protests against Kavanaugh, you'd never know that he was at the

center of the court. Well, I suppose we should begin by saying that the center has shifted so that even Chief Justice Roberts now seems much more moderate and much more centrist relatively speaking, than those like Alito and the three Trump nominees on the far far right. But it is the case, by whatever measure we're now using, even if the center has shifted, at least Brett Kavanaugh is closer to that than he is to the far right. He's also less confrontational during oral arguments than some of

the other justices like Samuel Alito. Sometimes you think from what he says, he's going to vote with the liberals. Do you think it's deliberate? I think that is probably his personality, and that the aberration was his anger at

his own confirmation hearings four years ago. And we have information that Trump talked to him and said go low and go angry, and so that that's probably not his normal approach to his public life, and that he did that in order to get through and to please Donald Trump and to please the Trump is in the Senate and on the Judiciary Committee. So I suspect that while he's very, very conservative, it certainly has a conservative background.

I suspect that his personality is much more moderate than he displayed in public in his confirmation hearing, so that the true personality in persona Brett Kavanaugh is probably what you see in oral arguments and to some extent in his opinion. I mean, he's mocked more than the other justices who are far more conservative than he is. How much of that is duty think to his confirmation hearings, As you said, he was angry, he was confrontational, and

he had some of those frat boy comments. Yes, he had not only the unfortunate descriptions of his friend, but

their unfortunate nicknames. And then what will carry him to his grave probably is I like beer all said not only with anger, because Claire's Thomas was angry because of the Anita Hill accusations at his nomination hearing, but in terms of his facial expressions, he had a rather poker face but angry voice, whereas Brett Kavanaugh had not only anger in his voice, but his scrunched up face, and then even when he has his resting, alcoholic, resting, moderate face,

it is an easily caricatured face. So some people just have facial characteristic and it's Richard Nixon and his beady dark eyes and his d nose and his dark eyebrows. Wreck Havanag just has a face that's easily caricatured by cartoonists, but also easily portrayed in a Stephen Colbert monologue or

a Stephen Colbert cold opening cartoons. In a few cases, for example, in the jobs case the abortion case, his opinion included a section that said you could limit the sweep of the abortion decision and that you won't have states going after women who go to other states for abortion. So what's his point Is his point, as it was in the gun case, to sort of say, Hey, what we're doing is not that bad. You don't really have to worry about this. I think that he probably believes that,

and he also may have more moderate clerks around him. So, for example, I think the language that Thomas had in his concurrence in Dabbs about going back to reconsider gay marriage and sexual privacy and contraception, I hear the voice of fairly extreme law clerks that Clarence Thomas typically hires. And for Brett Kavanaugh, if indeed he is a slightly more moderate conservative, he may well have slightly more moderately conservative clerks. And let's face it, they do right typically

the first draft of the Justice's opinions. So here, I think Kavanaugh's agreement with the team and his chambers, but also it does in his mind, I'm sure, helped to separate him from what he must see as the extremism from his colleagues from the Trump era and Alito and Thomas. But still, I mean, even though he says that, and he writes that, he still goes along with the majority and gives them the fifth vote that they need or

the sixth vote that they want. Well, yes, and so did the Chief Justice, because I think they all wanted to end Row. And then you also get to the issue of you know, fool me once, shame on you. Whatever it was it for George W. Bush had in trouble saying, but you know, if I'm fooled by I think it was Susan Collins said, oh, well, but Kevin all lied to me about upholding Row. Well, if you go back and listen to what those Conservatives were saying

about Row. They were founding, first of all, the party line to get them confirmed, because they all said the same thing, and they had all been coached to say that, which was yes, it's precedent. Well, that's a truism. Row was precedent. Should they pay attention to precedent? Yes, that's one of the maxims of self restraint of the court. But they didn't just come straight out and say, I

would never, under any circumstances overturn Row. So nevertheless, they led some people to believe, including Susan Collins, that they wouldn't vote to overturn Row. So if you believe that, then are you going to believe what the Chief Justice was saying in the oral arguments, which sounded like he wanted to uphold the Mississippi Statute on the fifteen week limitations on abortions and yet voted to overturn Row in effect.

And are you going to believe kavin Off that he won't go back with the rest of the Conservatives and look at and overturned the sexual privacy cases, the contraceptive cases, and the marriage equality cases. I don't think for a moment that those are safe with these five men and one woman on the bench on the right. As you mentioned, Clarence Thomas seems to still be holding a grudge for

his confirmation thirty years ago. He told his law clerks two years after his confirmation, according to a article from The New York Times, that he intended to serve on the highest court of the land to make the lives of liberals miserable. So yes, but it seems like Kavanaugh

is not taking that tact. He's not, and good for him, because I would have argued, as someone who has followed the court and studied the court for four decades now and served as a judicial fellow there in the midnight nineties, and as someone who appreciates what it takes to be a federal judge, and especially on the highest court in the land, I believe in something that's called judicial temperament.

That is that a justice not only should be as neutral as he or she can be, but they should just have the personality and persona of someone with maturity and judicial temperament. And I would have made the argument that Brett Kevanaugh did not display proper judicial temperament while he was at that time a federal judge before the Senate Judiciary Commode. So my view is that he, at least now after getting on the court, is trying to hold to judicial temperament, and as we said, that might

be his normal persona. Anyway, maybe that's not so hard for him and so good for him that he's taking a different approach from the I will be angry till I die Clarence Thomas vision. And by the way, he was also an angry young man, and understandably so. He came from the Deep South where he was discriminated against. He studied for the priesthood. At one time he was in the Catholic seminary, and when he heard people saying nasty things about Martin Luther King upon King's assassination, he

gave up and he left. He left the church at that point. He's now come back to the Catholic Church, but he's had a lot of anger in his life, and it all came tumbling out again because of the Anita Hill accusations. Whether they were true or not, it certainly riled him up, and he is riled to this day. And now being able to have his conservative positions become the law of the land he's also must be doing a happy dance. So Kavanaugh was a clerk of Justice

Anthony Kennedy and took his place on the court. Do you think that over time Kavanaugh will move closer to where Justice Kennedy was or is he just too conservative? There's always hope, yes, and particularly since Kavanaugh has messaged through his opinions and through his demeanor on the bench, and he's not going out and being angry in public as Clarence Thomas has been, So I think there is

hope there. And the other thing I would say as a political scientist is that political scientists, scholars who studied the court have found that across his history, of justices tend to depart from the ideology their appointing president hope they would represent on the court. And it typically those twenty centers go from being conservatives to liberals, or at least to maybe being a swing vote. So Justice Kennedy

was an example of that. Justice O'Connor. Justice Blackman, interestingly enough, who wrote the majority in Rosy Wade, was put on the court as a conservative by Richard Nixon, but he became a liberal vote, a reliable liberal vote. So yes, there's always hope. But nevertheless, even if the three liberals got kavanag there's still only at four. And one of my favorite elements of being a judicial fellow is meeting with the then retired Justice Brennan, a leader of the

Warrant Court in its liberal revolutions. But he would bring in his new clerks every year about this time, and he would say, what's the most important word at the court. And they were all super bright, and they say justice, liberty, freedom, and he'd say no, no, and they'd stop answering. He'd say, are you finished? They say yes. He'd hold up one hand with all five fingers that lay and he'd say five, that's the most important word here at the court. So

he was a pragmatist. And right now, even if the Liberals got Brett Cavanaugh, they'd only or vote. What they have to hope is that on some of these instances, for example, when Chief does this Roberts voted twice to uphold the A c A UH so called Obamacare, maybe they could win him over for these cases that are hot button social issues that everybody cares about. We'll see

what happens next term. Thanks so much, Barbara. That's Barbara Perry, a presidential and Supreme Court scholar at the University of Virginia's Miller Center. When the Manhattan US Attorney Damien Williams announced new insider trading charges against a former US Congressman, a former Goldman Sachs banker, and a one time FBI trainee, he issued a warning. When insider trading occurs, investors who played by the rules are left to conclude that the

deck is stacked against them. The cases that we unsealed today demonstrate our commitment to fighting that perception, and it should send a strong message to anyone who was even thinking about committing insider trading. Cut it out because we're watching, and perhaps cut it out because many of these insider trading cases show that sometimes crime doesn't really pay. Joining me is Bloomberg Legal reporter Bob van Voris. Bob tell us about Briget Goyle, who was one of the people indicted.

Brigett Coyle was an investment banker at Goldman Sachs and then moved to Apollo Global, where he was a principal. He was charged recently with insider trading. It's alleged that he uh and a friend made two thoul and dollars in a scheme where they traded on insider information about deals that Goal picked up while he was working in Coldman Sachs. He was only recently charged with this. His friend, a guy named x Shane ran John, former Barclay's trader,

was sued by the SEC. Goyle please not guilty and Naran John is not charged criminally, but he is sued by the SEC. One of the interesting things about this case is, at least at this point, prosecutors have only alleged that Goyle made thousand dollars from the split of the money here, which is dwarfed by the amount that obviously that he stands to gain as a principal at Apollo and as a thirty seven year old in the middle of a very promising career. Otherwise, what kind of

money are we talking about as a principal at Apollo. Well, he was looking at probably a million plus a year going forward. This was an estimate from a recruiter that I talked to over the years. Obviously, this is going to grow. His value is going to you know, if his career continues to be successful, He's going to make a lot of money. He's going to have a very high status. He is on leave from Apollo now. As I say, he's pleaded not guilty. He hasn't been convicted

of anything at this point. But this is obviously, at the very best, a huge speed pump in his career. And if he's convicted, he faces the possibility of prison, the loss of his career, and you know all the things that go with that. His squash buddy's facing charges by the SEC, but wasn't charged criminally taped a conversation with him. So the supposition is that he is cooperating

with prosecutors. That's right. As I say, there's no criminal charges against him at the moment, and he has been identified as somebody who is coopera rating with the investigators. He made as you said, he made a consensual recording for investigators with Goel according to prosecutors, in which Coil incriminated himself in the scheme. This often happens. We often

see this in insider trading cases. According to the SEC, Coil and Duran John were friends going back all the way to grad school, were very close, lived in the same apartment building at one point. But then you find often when somebody gets jammed up with the possibility of criminal charges in prison, they'll flip on, you know, people that they were very close to to save themselves, and it may be that that's what's going on in this case. So the question is, these people are making huge salaries.

For the most part, directors and investment banks can make more than a million dollars a year. They all seem to be making a lot of money, So why do they do this? Absolutely, and you look at a lot of these cases. There are more of these where you see people with just so much at risk, with great careers, making a lot of money, putting them at risk for kind of you know, low level kind of insider trading, and you have to ask yourself, you know, what are

they thinking? And from talking to people, it seems the thing that they're thinking the most is I'm not going to get caught. This is free money. And that's basically. These are risk takers, uh. In their jobs, They're used to taking risk with a lot of money, and so they are potentially more comfortable with this kind of risk

than the normal person might be. They're also confident that they can sort of manage that risk by you know, sort of taking steps to keep uh, the information and you know what they're up to, keeping that secret, keeping that outside of a view of their employers and potential regulators and prosecutors. The problem with that is these are not people who are career criminals, right, So obviously you know, this is maybe the first time out for a lot of these guys, and they screw up. There's also a

lot of factors that they can't control, right. They passed tips to people who maybe then pass them on to third parties who are indiscreet, or who passed them on, or who makes the kind of trades that are gonna draw attention at scrutiny. So there are a lot of different ways that these things unraveled. Sometimes, disappointed spouts, you know, an angry ax will turn somebody in. Sometimes a person will get charged with a tax thing and they'll want to get out from under that, and they'll inform on

somebody that they had done an insider trade with. So there are a lot of ways that these things can go wrong, and I think a lot of the time people aren't thinking that through. And do we know how Goile got caught. It appears that it was based on the information that was pro bided by his friend and by market surveillance, which the SEC and FINRA are doing

much more of. They've developed market surveillance tools that kind of flag potentially problematic trade following a big transaction in the market, and they're identifying people that are sort of under you know, what used to be the level where they would be able to get caught. You don't have to make a huge trade, you don't have to necessarily be trading, you know, making really flashy options trades anymore.

They are getting flagged at a much lower level, and maybe that they don't think that their trading is at a high enough level to be caught. Is there any indication that there's a lot more inside trading going on than is being caught and prosecuted. It's really hard to tell. We know certainly that there are trades out there that

there's insider trading going on that doesn't get caught. If you're just sharing a tip at the golf course or at the club, and the person trades on it and doesn't make it hunt of money and doesn't tell anybody, it's going to be really hard for authorities to get

at that. So there's certainly trading that goes on. How much there is It's hard to tell, right because the ones that we know about are the ones where people get caught and people get identified and sued or they get prosecuted, so notionally, just talking to people, there is an idea that there are trades like that out there,

but it's really hard to quantify. The one thing that's kind of interesting about that is that this is not too long after pre Berrara, the former U S attorney in Manhattan, had a very big crackdown on insider training at hedge funds that involved people like rod Rod Rotten s a c capital that was very much in the news, and you would think that people would be dissuaded, but still we continue to see insider training. The new U S attorney for Manhattan is he trying to crack down

on insider trading. It's not clear yet whether he is going to be bringing the same number of cases or whether the same investigatory resources have been put into this. Damien Williams is the new U S attorney in Manhattan, and most of these cases will have been initiated before he came on the job, So we'll see going forward if insider trading is a big priority for Williams or if he's just going to be charging the cases as

they come up. I just want to go to a few older cases of people who have been prosecuted, and you know one that sticks out to me is Shaun Stewart because he tipped off his father and he ended up going to prison for it. That's right. That was a case in which Sean Stewart, uh he's the former Carella Weinberg Partners banker, and he was convicted of sharing a number of tips about healthcare mergers with his father.

The father then apparently passed them along to a friend of his who traded I think upwards of a million dollars in the tips and ended up getting caught and flipping on both Sean Stewart and his father. Sean Stewart went to trial, was convicted, and was sentenced to two

years in prison. The only profit that the government was able to say that he made from this from tipping off his father was that when Sean got married, the father used ten thousand dollars the money that he got in his trades to pay for the photographer at the wedding. So you know, obviously the risk benefit there is just way out of line and Stewart's career is over. He is not making the money that he once made and

is barred from the industry. Dollars a lot for a wedding photographer, I think absolutely so these are like small time gains made. But there are some people who make huge money on insider trading. Yeah, absolutely, um. There are examples of very, very big insider trading cases. The biggest individual case that anybody is aware of is a guy named Matthew Martoma, former s a C Capital Advisor portfolio manager.

He was convicted of making two d and seventy six million dollars for the firm for SAC Capital trading on information about the development of an alzheimer drug. Rod Roger Rottenham of Galleon Group, in a very famous case, was convicted of a scheme that prosecutors said netted his hedge

fund seventy two million dollars. And in a somewhat lesser known case, a Swiss trader named Mark domain to Be admitted that he made at least seventy million dollars from an international insider trading rank that traded on information stolen by bankers. And this was a multi continent insider trading rank and domain to be was able to cooperate and avoid the prison sentence. He spent some time in jail

before his trial, but he's free now. Did you recently speak to RAJ rog Rottenham after his he came out of prison. I did. I went to Roger. Roger Rottenham is running a family office. He is not able to invest money for clients as a result of his felony convictions and his seven years in prison, but he's now investing his own money and he's got a small staff of people who are working with him. He's investing in healthcare, clean energy, and some other things, real estate investments, and

you know, this is kind of his second act. But he is still trading and he's looking for, you know, a way to sort of get back in the in the game. He's also he's written a book in which he is very critical of pre Berarra and the surprise, surprise, surprise, the charges that were made against him. Of course, Roger rotten was convicted at trial. His conviction and sentence were upheld repeatedly by judges. So he did his time. Does

he still claim that he's not guilty. Absolutely, He claims that it was a result of over zealous prosecution, that pressure was put the people who testified against him, and that he didn't do anything wrong and he shouldn't have gone to prison. Did he say anything about his prison's day. He did. He said that it wasn't as bad as people sometimes. I think he said that he was prepared in part by attending English boarding school when he was a cat. He's told me that there was one point

at which he was threatened by another inmate. People tried to extort money from him because he is so famous and so wealthy. When he said, he stood up to this person and that was the end of that. I have never heard prison compared to an English boarding school, nor have I He did it several times, and it's hard to believe. But either prison isn't it that bad, or English boarding school is very bad. Absolutely So just finally you talked to um a lot Professor Donald Langborn.

Does he think any of these people don't understand that what they're doing is wrong or they just don't think they'll get caught. Certainly if they don't think they'll get caught, But more it suggested that a lot of the times these people either they don't understand the law, or they are rationalizing that what they're doing is not really breaking the law. The law is that if you are trading on non public material information, you are potentially in violation

of the law, or if you're giving tips to other people. Right, So apparently some people will sometimes think, well, this tip isn't so it's not really illegal. But that's not the standard. It just has to be something that is important to an investment decision, and if it's non public, you can be liable for insider trading and you can be suited by the SEC or go to prison. I love this quote.

Coyle's lawyer told the judge that his client were shocked by his arrest, and the judge said, that's often the case with insider trading. Arrest, isn't it. That's how they that's how it goes. When the FBI shows up at your door at six I am. It can be extremely disconcerting. Thanks Bob. That's Legal reporter Bob van Vorus and that's it for the edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our

Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten BM Wall Street Time. I'm June Grossow, and you're listening to Bloomberg