History Is Made as Ketanji Brown Jackson Is Confirmed

two years to sit on the Supreme Court. Three Republican senators joined the Democrats in voting for Jackson. On this vote, the a's A fifty three the names, and this nomination is confirmed. Joining me is Alatoon Day Johnson, a professor at Columbia Law School. What does this historic confirmation signify? This is a historic confirmation, and in a number of ways.

Clearly it's important to have the first black woman on the Supreme Court, both for how we think about the Court as an institution, the legitimacy of the institution, and just as a sign that this is a pathway that's available to everyone in America, even a young African American girl who's just a generation removed from formal segregation. That we could have a democracy in which the pathway to the Supreme Court is open to people like Katangi Brown

Jackson and others like her is really important. In some respect, she has a background and experience typical of Supreme Court justices. In other respects different, Yeah, I think it's really important to focus on her as an individual and what she brings to the Court. And one of the things I was struck by from the moment she was nominated was a range of experience. Um So she has some of those aspects that are typical of a lot of nominees, and she went to what is considered a very top

law school and elite law school. She herself clerked on the Supreme Court. She clerked for Justice Bryer, and we see a lot of the justices who have that kind of background. She also has appellate court experience. I mean, she's coming from the DC circuit. But in other ways you see a breadth of experience that really is uncommon for a Supreme Court justice. And the things that really stand out for me are her experience as a trial judge, which she has been for most of her judicial career.

She's only spent a short time actually as an appellate judge, so for nine years she was a trial judge. And then also her experience in trial practice, So a lot of judges and justices have experience with a pellet practice, but actually representing clients in trial settings that he stands out, so that breadth of experience. And then she also has experience in criminal law and specifically as a public defender.

And there was much discussion as this of course in her confirmation hearings, and you saw a real division as to whether or not this was a strength or not. I really saw it going in. And then also and how she explained it as a key strength. So she will bring that knowledge of criminal law and criminal procedure, but not just sort of an abstract I taught this knowledge, but how does this actually play out in our criminal

justice institutions. Her experience on the Sentencing Commission means that she's really grappled with how the laws around sentencing effect ordinary people and some of the trade offs in sort

of designing sentences. She's going to have that understanding. Another thing that really struck out for me, and this is related to m Sentencing Commission work is just the extent to which she had worked in settings that were bipartisan, and that's something that really came across the Sentencing Commission work. And there are people who testify to this in the confirmation hearings where they talked about and the fact that she is seen as someone who believes in bridging differences

and she's a consensus builder. So hopefully those skills will help her on the Supreme Court to explained because people say, well, she brings this experience, but will she really be explaining to the other justices what criminal defense laws like or or sentencing someone. Yeah, I mean it definitely um happens. I mean, you see how the kinds of questions that someone asks that oral argument can really shape the information um that justices are exposed to and their understanding of

the implications of different legals. So um, maybe that they she pursues a line of questioning UM. A lot of times you may notice that when Supreme Court justices ask questions, in part their audience is the person who they're asking the question of right the litigant um in front of the lawyer who's making the argument. But in part they're talking to each other through those questions, and so I think justices often learn UM a lot through that questioning Yeah,

you're right. They don't always UM go and then chat with each other afterwards. UM. And so there isn't that type of dialogue typically, but in the history of the Supreme Court that has happened. I mean, Justice Senator day O'Connor always talks about what she learned about criminal justice and about death penalty issues from Thurgood Marshall, that she learned about the effect of these laws in real life. He by the way of the last justice who had

a real public defense background. UM. And so that kind of learning can happen. I'm a little skeptical that that's going to happen on the Court in the foreseeable future because UM, all that we've heard suggests that most of the way in which they communicate is through or argument and then a little bit UM in the UM a conference that they have UM when they are deciding the cases.

So they're not engaging that back and forth UM. Justices also read each other's opinions and sometimes they change their mind. There are opinions that sometimes could be assigned to someone that are originally in dissent that can turn into a majority. UM. So justices can change their mind. Now most of of us think, well, how could this ever happen when we know that their views are so set on a range

of issues. And that's because I think we as the public, we pay attention to many of the high profile issues UM. The most high profile issues UM, abortion, UM, affirmative action, UM. Maybe I put voting rights on that, some questions around UM, the administrative state, you know, the power of regulation in the area of environment. I mean, those are maybe high salience issues where the justices um their opinions. We might already know their approach, and so maybe she shift people

on that. But there are many other issues that the court decides UM, that affect the rules and trial cord, that affect UM, criminal defendants UM, and some of those UM, there is the opportunity to have alignments UM that are unexpected or even for the justices all to agree. She went through two days of aggressive bruising questioning, where the Republicans attacked her for being soft on crime, a proponent of critical race theory representing terrorists. Now, no one ever

questioned her qualifications to sit on the court. But do you think the hearings in any way taint this historic confirmation, So I think that it taints the Senate most of all, So backing up for a second, going in, this is unfortunate because she was confirmed in a bipartisan way for the Trial court um she was confirmed, as it has

been pointed out, for the Sentencing Commission. She was elevated after being a trial court judge to the DC Circuit, and it wasn't as overwhelmingly bipartisan, but there were Republicans who voted for her, so coming in that really there was nothing in her record, nothing in her record that should have drawn particular opposition. Now, I think that Senators

should really sharply question potential justices. It's really important. We call it, in the constitutional context advice and consent, and you want the Senate to play a very vigorous role when you're talking about lifetime appointments. That said, going in, I'm not sure there's much she could have done to win over certain Republicans. And really some of the things she was asked about had nothing to do with her.

They had to do with the idea of a kind of liberal constitutionalism that seemed very outdated and didn't have anything to do with her record, which is really is a very kind of careful, incremental trial court judge. And then they asked a series of questions that I put on the side of quite inappropriate about things like critical race theory, and it felt that just because she was a black woman sitting there, she should be able to opine on and those were quite offensive. They were shocking

set of questions about her religion. I felt she was incredibly poised through it all. So the short answer is, I think it made the Senate look bad. I teach my students that advice and consent matters, that the Senate is this great, deliberated institution, and it's hard for them to take me seriously after seeing some of that. But on the flip side, what I heard was she was

incredibly poised. My respect for her increased through that. And so I'm sure the American people will have a mix of views on that, because we are a deeply divided country. But even some of the polling suggests that there's more support for her and more favorable view of her for having gone through that process. You know, despite that process, Thanks so much for your in sights. That's Professor Alatun

Day Johnson of Columbia Law School. A judge has denied the Lane Maxwell a new trial on sex trafficking charges over a juror's failure to disclose during jury selection that he was a victim of childhood sex abuse. Judge Allison Nathan's ruling ends for now a drama that called into question a verdict widely hailed as bringing long delayed justice

to Epstein's victims. Joining me as former federal prosecutor Robert Mentz a partner mcarter in English, Judge Allison Nathan said Maxwell's lawyers had failed to satisfy the requirements for granting a new trial in a criminal case. What are those requirements and why did you think they failed to satisfy them. Hearing of the potential jur misconduct after a conviction are rare, but they're not unheard of, and it really turns on the question of whether the jur misconduct denied and defended

a completely unbiased jury. So in this case, the sense did not need to show that the information was held by the juror would have altered the outcome of the verdict, only that the juror knowingly lied to enhance their chances of getting onto the jury, and so the question before the judge at the hearing was whether or not this juror had intentionally lied in order to get on the jury, and most importantly, whether or not that juror could be

unbiased and could listen to the evidence and could render ultimately a fair and impartial verdict. Nathan disagreed with the idea that past victims would not be fair jurors. But isn't it obvious that this juror's passed abuse made a difference in the case because he said it did. He told several media outlets that he raised his childhood abused during deliberations to sway other jurors. Yeah, that's a very

interesting question. And the real issue here is whether or not the past history of this juror gave this jur an impermissible stake in the outcome of the trial. In other words, was a jur an unbiased fact finder or was a youur an advocate for a particular cause with their own agenda. And that's what the defense argued here.

But the judge ultimately found that despite the history of child sexual abuse that was not disclosed during the jury questionnaire, despite the fact that it was clearly asked on that questionnaire, that that did not result in an unfair trial for miss Maxwell, and the verdict was therefore upheld. Nathan wrote that the juror was not biased and would not have been stricken for cause even if he's answered every question

on the questionnaire accurately. She said that whether the defendant would have exercised the peremptory strike against this juror had he actually disclosed his prior sexual abuse is not an issue. Why isn't that an issue. Doesn't the defense have a right to exercise peremptory challenges to get a jury they believe will be fair. Yeah, I think that really goes

to the heart of this question. And the judge made the point, as you say, simply because a juror is themselves a victim of sexual abuse does not preclude them from sitting as a juror on the trial about sexual abuse. In other words, it is not correct to conclude that an individual with a history of sexual abuse can never

serve as a fair and impartial juror. But in this case, what the defense was arguing was not that this juror should have immediately been disqualified had he disclosed a history of sexual abuse, but that they were denied the opportunity to question him about that experience and to determine whether or not he really could have been fair and impartial, and they could have ultimately decided, as you say, to strike him with a peremptory challenge as opposed to a

challenge for cause, and they were denied that opportunity because the juror did not disclose the past history of sexual abuse. A retrial would have meant the victims testifying again, the state being put to great ex ends with another long trial. Were those factors the judge considered in denying a new trial, Well, though it's our factors the judge should not have considered. The judge really cannot deny the defendant a fair trial here, and the issue really simply came down to the question

of whether or not. After this subsequent post verdict hearing, the judge concluded that this juror harbored no bias towards the defendant and could have served as a fair and impartial juror. That was refinding, and despite the fact that the juror did not disclose his past history of sexual abuse, the judge concluded that it did not preclude him from being fair and impartial and therefore did not change the

outcome of the verdict. And it's especially interesting in this case because this jury gave multiple media interviews saying that

he was a victim of childhood sexual abuse. That's how this whole issue came to light, and he told various media outlets that he discussed this experience with fellow juror, particularly his difficulty remembering specific details of abuse, just like two of the women who testified against Maxwell, he believed, He said that his input may have helped other jurors believe their testimonies were credible, even if they couldn't recall

or misremember aspects of the abuse. So the juror acknowledged in these post trial interviews that his history of childhood sexual abuse was actually discussed during deliberations and may have swayed other jurors in reaching their verdict. But that is not something that the judge asked the juror about during this post trial hearing, and that's because judges are not permitted to ask jurors about anything that goes on in the jury room about those deliberations, So that area of

inquiry was not something that came up during the hearing. Instead, the judge focused on how it was that this juror failed to disclose the fact that he had been a victim of childhood sexual abuse, and his answer to that was simply that he rushed to answer the jury question and there did not pay close attention to it, and

that it was an honest mistake. The key to that finding was the judge believing the juror that it was an honest mistake and that it was not an attempt by this juror to try to get on the jury in order to be an advocate for the victims. This is most likely going to be appealed to the second Circuit. What are the chances of the second circuit reversing what

a trial judge decided at the hearing? The judge made a credibility finding as to whether or not this curor intentionally withheld that information and whether or not that juror could have been fair and impartial. And it's difficult for the Court of Appeals to turn around and reverse that ruling because it is one of credibility and it was a trial judge who was there during that testimony. And you add on top of that the fact that it is rare for judges to order new trials in the

event of juror misconduct. They're really loath to have to do that because it does require trying the case all over again, and in this particular case, subjecting the victims of sexual abuse to yet another trial, yet another ordeal, yet another cross examination by the defense, so that undoubtedly somewhere was in the back of the judge's mind in making this decision. During misconduct after a conviction is always rare.

It's not unheard of, but it doesn't happen all the time, and the defense likes to jump on these because it's an opportunity really to overturn the conviction even before an appeal is filed, based on their claim that the ger misconduct denied their client a completely unbiased jury. From the prosecution standpoint, it is their absolute worst nightmare because it has the potential to unravel the conviction almost immediately after a lengthy, high stakes trial, which is exactly what happened here.

Thanks Bob. That's Robert McCarter and English US antitrust chiefs voice support for an American crackdown on gatekeeper tech giants. Promising stricter deal reviews. This just a week after the European Union reached a deal reigning in the likes of Google and meta platforms. Joining me is Jennifer Rey Bloomberger Intelligence senior litigation analyst. Jen tell us what Jonathan Cantor, the head of the Justice Department's antitrust Division, has been

saying lately about mrger enforcement. So recently, he's been talking a lot about how to bolster merger enforcement, you know, before these deals are even done, to try to stem the tide that some belief has occurred over the last ten to twenty years of allowing too many murgers to

go forward, and many industries that are overly concentrated. And he's focused on a lot of different areas, but one in particular he talks about a lot is preventing the acquisition of a nascent competitor that's kind of a new small company that's sort of up and coming and has yet to develop, that is bought by a potential rival,

a company that weigh down the road. If this nascent competitor developed, became more vibrant, became you know, a bigger rival would be able to challenge the incumbent, and so

particularly in the big tech platform we're old. What has been observed is that over the years, these big tech platforms have been able to sort of watch the market and watch for these potential threats and still buy them up when they're really small, you know, not making great revenues or profits, and then gobble them up before they can get big and compete with them, or you know, take them under their wing and develop them, but still as part of their company and not as a rival.

And so he in particular is focusing on trying to do better as a merger enforcer to see these deals, to catch these deals, and to try to stop these deals before they get closed. How is this different from what we heard before with say, Facebook and WhatsApp? Isn't it the same message? Yes, it really is generally the same message message, But we're just talking about enforcing prior

to the act. You know, with Facebook, they're going back and they're challenging consummated deals that occurred a long time ago, and what they're saying is, hey, we made a mistake back then when Facebook acquired What's happened when Facebook acquired Instagram and we basically cleared it through the agencies, we made a mistake and we shouldn't have. These were nascent competitors that may have been able to come up and be arrival to Facebook. The FTC has suit Facebook now

to try to unwind these deals. That's going to be working its way through court for some time. And what the agencies are saying now is we need to stop the mergers before they actually close. We need to be more vigilant when they're first proposed about understanding that this small company that's being bought is a company that could actually, if given the time, could flourish and become a rival to the company that's buying it. The EU always seems

to be ahead of the curve on these things. What happened in the EU, so in the EU UH there was political agreement between the European Commission and the Parliament on new legislation called the Digital Markets Act. It's actually quite similar to legislation that's being considered here in the United States as well. But what that legislation is intended to do is create a more fair playing field for digital platforms and smaller companies that work with them or

may compete with them. And what it does generally is prohibit self preferencing conduct by the platforms, for instance, using the data of a company you compete with but that also relies on you as a digital platform to benefit your own products and services, or let's say, in search results, pushing your own products up to the top of search

results if it's not warranted or merited. Also prohibit certain kinds of discrimination, for instance, of the company is using some of your products but not all of your products, you're you're giving them a harder time or favoring the companies that actually do use your full range of products. And also required certain amount of interoperability between companies and

their rivals and other third parties. So that law moved much closer to actually being enacted, and it actually looks like it might be so some of these big tech platforms, because right now it really only covers a handful of the really big digital platforms, may actually have to come in compliance with this law. Sometime in two thousand twenty three, maybe early two thousand twenty four, you said, the US has a similar bill. How similar is it? You know,

it's it's quite similar. It's called the American Innovation and Choice Online Act. And now it's a little farther away. You know, we obviously in the United States, we have a different process um and you need bipartisan backing really for any bill to today to become enacted and become law. So we're a little bit farther behind. But this bill actually has been voted through the Senate Judiciary Committee and has pretty strong bipartisan backing, very similar to the Digital

Markets Act. It also would ban self preferencing by big tech platforms. Right now, it really only covers Amazon, Apple, Facebook, Google, and maybe Microsoft that's a little bit unclear. Has a few affirmative defenses for certain kind of conduct, but really very limited. I believe that it does have some prospects, but I don't necessarily think as it's written today it could actually get through a floor vote in the Senate and even in the House and become law. In the

committee it was sixteen to six in the votes. It was all Democrats and then some Republicans, but many of the yes votes were sort of contingent. Yes is that we want to keep working on it. We think it needs improvement or change before we'd actually vote yes on the floor, So it means it's still developing and changing and so we're going to have to see, you know, where that comes out before we understand how strong it is and if it's really as tough as the Digital

Markets Act is. We heard that under the Biden administration, antitrust enforcement was going to be tougher. Have we seen that or is it too soon? You know? I think we have seen it. And it's remarkable because law moves very slowly, in a particular, anti trust law moves very slowly.

But in particular, the Department of Justice has been really aggressive and they've been quite successful in suing to try to block mergers and then getting those deals to go to abandonment rather than actually taking their resources to litigate through which is for the Department of Justice an ideal outcome because they get what they want, they kill the deal, but they don't have to use their resources to litigate all through court. They've been very active. Now the Federal

Trade Commission, I believe will become much more active. Um The chairs hands have and tied for some time because they don't have their full slate of five commissioners. They have a deadlock of two Republicans and two Democrats. Now they have sued to block a few mergers on mostly unanimous votes, so they've been able to get some bipartisan agreement there. But I do think they will become more aggressive and more activist interventionist once the fifth Democrat is confirmed.

Thanks Jen. That's Jennifer Free, Bloomberg Intelligence Senior litigation analyst