Jackson on Brink of History and Stunning Union Win

I will strongly and proudly support Judge Jackson's nomination. That's Judiciary Committee Chairman Senator Dick Durbin at the start of more than three hours of debate over Jackson's nomination today, three hours of basically the same arguments we heard during more than thirty hours of hearings and questioning last month. But Durbin did make one significant observation. We don't agree on much in the Senate, but not one senator on

this committee is questioned that she is well qualified. The Committee, like the full Senate, is split evenly between Democrats and Republicans, and as expected, they deadlocked on moving her nomination out of committee eleven to eleven, the first time that's happened in about three decades. Her nomination is still on track to be voted on by the full Senate before the end of the week joining us. Carl Tobias, a professor at the University of Richmond Law School, what did you

hear from the senators? Well, each of them really it seemed like we're reviewing what they had already talked about and asked her about during the hearing, and so there was virtually no new information that was transmitted. I think there was pretty substantial agreement that the process is broken, but that wasn't why they were there. So the Republicans

continued to criticize her the way they had before. They all were relatively careful to say that she is a very nice person, that they to her family, that she was well qualified, they didn't have questions about her qualifications, but that they disagreed with her on certain issues. A number of them criticized her as someone who would be an activist judge, though there isn't a lot of evidence

of that on the lower courts where she served. But also they were concerned about these child pornography sentences and that she was below a certain level, though Democrats refuted that. And then there were some other minor criticisms of her, but pretty much in the same vein that she would be an activist judge, that she might be soft on crime, though that's hard to discern from her record, and that's

what really Republicans were talking about. Democrats were saying she's extremely well qualified and reminding every one that this would be an historic appointment, and that she's clerked at all three levels of the federal judiciary, including for Justice Bryor. And that was all the ground that have already been plowed the Senate advice and consent. They all can side that Judge Jackson is well qualified. Is it up to them to decide whether they agree with her philosophy, which

she says she doesn't have a judicial philosophy. Is it up to them to agree with stances she takes on different matters. No, No, But their varying views among senators historically and in the present about exactly what is entailed and advice consent some president senators and historically have deferred to the president, saying he's the person who's elected by the entire country and so can dominate and is entitled

to some difference. On the other end of the spectrum, our numbers editors who feel that the hearings must be very rigorous and then they're entitled to ask any number of questions, especially about how the person would discharge the duties of justice on the Supreme Court. Advice and consent was put into the constitution just to be a check on the president in case the president sent someone who either was unqualified or worse, you know, had ethical problems

or that type of thing. But I think the real focus of the debate today and probably since Robert bort In, is whether ideology of the nominee is a relevant consideration. And I think today everybody has sort of come around to the fact that, yes, that is relevant. You can't just ignore that, and so a lot of the back and forth today was about that, from both sides, taking Justice Kavanaugh's hearings out for a moment because there were

specific charges made neutral arges during his hearings. But I don't recall the hearings for Justice Gorciss or Justice Cony Barrett being this personal, so many personal attacks. I don't recall that. I think that's right. I don't think there were personal attacks, and either one of those I suppose the Republicans who say they didn't think they were engaging in personal attacks, but I think Democrats felt that some of the questions were inappropriate or really reduced to personal

attacks on an A nominee who's extremely well qualified. Taking Justice Kavanaugh's hearings out of the equation for a moment, because that was based on allegations of misconduct that were lodged during the hearings themselves. I don't recall the hearings for Justice gorciss or Justice Amy Coney Barrett being this personal,

so many personal attacks. Oh, I think that's right. Um, I don't think there were personal attacks and either one of those and I suppose the Republicans would say they didn't think they were engaging in personal attacks, But I think Democrats felt that some of the questions were inappropriate or really reduced to personal attacks on an A nominee who's extremely well qualified. What I found curious is the about face of Senator Lindsey Graham, who supported her for

the d C Circuit. And I know that doesn't mean you have to support a person for the Supreme Court, but he really made some personal attacks on her, and today he said that you know, if they were in charge, she wouldn't be up there. Well, we've heard those attacks,

you know, those kinds of threats before. And that's what Mitch McConnell, as leader of his party in the Senate, has been doing for a long time now, ever since Obama became president two thousand nine, and certainly what we saw in seen with Marrik Garland and then in with Amy Tony Barrett. So I think the leader is leading

the rest of them, um. And so that's what I think you heard Graham saying today, which is unfortunate because I think everybody on the committee pretty much agrees that the process is broken at the Supreme Court level, and now that's trickling down as well to the lower courts, all of which is unfortunate for the Judiciary, for the President,

and for the Senate. Eleven to eleven. What happens now, well, when that happened, and the history is a little checkered because if you remember back fairly recently, both Bork and Clarence Thomas. I think Clarence Thomas had a tie vote in Judiciary Committee, and I think Bourke was voted down. But at that point the Democrats agreed, uh, I think they had the majority to send them to the floor

any way and have a vote. And that is another sign that this is all changed because that's the relevant precedent, the most recent relevant precedent. So why not then go ahead and have the final vote. But I think because there's a tie and that custom has gone out the window, apparently, it means that you must discharge the person from committee.

It really is just a procedural hurdle that will easily be resolved, but it just takes more time so that you have to have another vote on the floor to discharge her from committee, and you need a majority, and it's clear that she will have a majority. So Chuck Schumer has done this before during the Biden administration, Yes, exactly, with some lower court nominees, I believe one for the

Ninth Circuit and a few others. And there are five or six lower court nominees on the floor who tied in committee, and so they would have to be discharged as well. But again it takes half an hour to do it. There's some paperwork, but they just have to vote on that, and then the person comes out of committee. Then there would be a cloture vote on the floor to cut off debate at some point, and then you would have the debate fifteen hours for each side, and

then a confirmation vote. So there's debate before the debate. What's the debate on before debate? There may be some debate starting in but but the rule in rule twenty two of the Center Rules, it talks about post cloture debate time and how much there is allotted for that, and so, um, you cannot have a vote until those thirty hours are used up or the Democrats will see most of their time. So effectively, you're talking about the fifteen hours of possible debate debate allowed for Republicans um,

and then you have the final vote. I've read that the last time that so many questions were asked about criminal law, about crime was when Justice Thurgood Marshall was before the court, the first black justice. I don't know if that's because it's a dog whistle because he was black and because she's black, or if it's because they were, you know, defended criminals in the past, well alleged criminals. And yes, she was a federal public defender for three years.

But we know that people are entitled to representation after Gideon versus Wainwright n. Supreme Court case, and um, so you have both sides represented in criminal matters and it's a constitutional right, um and so UM and in a number of the GOP senators, to their credit, admitted today that that people are entitled to representation and they think

that makes for a better system. And so Uh, I think this is unfortunately tied up with the soft on crime political agenda that one party has going into the mid terms, and we're just likely to see that come to the fore. And so there is a huge fight brewing over um, the question of whether Democrats are soft on crime and whether Republicans intend to use that in um to capture the Senate. And it's pretty obvious that that's what's going on in committee in this area of discussion.

We know she's going to become the next Supreme Court justice. Does any of this tarnish her? You know, the hearings and the accusations may Does it tarnish her when she takes her place on the court, Well, hopefully not. Um. It will for some people who are extremely partisan, but I think most Americans uh, And I think the polling shows most people view her quite favorably coming into the hearings, and I think she uh comports herself in a very

strong and h excellent way. And Um, I think even some Republicans may have admitted that her judicial temperament was clear in the hearings, that it was very balanced, and she's very fair minded. And so that's an important attribute on all the federal courts is to have balanced judicial temperament, and she displayed that over and over again. Thanks Carl. That's Professor Carl Tobias at the University of Richmond Law School History. Champagne corks popped in a historic win for

organized labor. An upstart labor union pulled off a stunning upset and wontent of workers votes at the Staten Island warehouse of Amazon, a company that's managed to keep unions out of its US operations for more than a quarter of a century. Chris Small's, a fired employee who led the fledgling union to victory, said it's time for businesses to realize the power workers have. When they banned together.

We we got the jugglin. We went for the jugglin, and we went for the top doll because we want every other industry have other business to know that dangs of teams. My guest is labor law expert Kate Andreas, a professor at Columbia Law School. This marks the first time a group of US workers have successfully voted a former union in Amazon's twenty seven year history, a company that seemed to be unbeatable. Would you say it's a watershed moment, a significant moment? How would you define it?

My guest is Kate Andreas, a professor at Columbia Law School. Absolutely, this is an extraordinary victory by the workers at the Staten Island facility, and I would say it is a significant moment and could well represent a turning point for organizing, both for workers at Amazon and workers more generally. Although it's too early to say it's always an uphill battle to establish a union. Over the past few decades, efforts to unionize that the most prominent non union companies in

America have almost always ended in failure. But was this even more uphill than usual or was it basically the same as trying to start a union elsewhere? Well? I think in some ways these workers had even a greater challenge than in many other contexts because Amazon had been so resolutely anti union and anti worker. Amazon has sent millions of dollars on anti union consultants and has consistently fought very hard against unionization, and so the workers had

a significant uphill battle. On the other hand, we're now living in a time of a very tight labor market, and the workers recognized the power that they had, and we saw particularly effective leadership from workers within the facility in building this grassroots union. I mean, the law really stacked against workers, and it enables employers to campaign fairly viciously against union organizing and Amazon did that here. And that's why this victory is so stunning and so important.

The fact that the workers were able to overcome really intense anti union campaigning, including firing workers who supported the union, many many mandatory meetings at which Amazon offered anti union propaganda, and much of that is legal, and to the extent Amazon on potentially violating the laws of remedies are very limited. So historically it's been very hard for workers to overcome the fact of the laws stacked against workers right to organize,

but here they were able to do so. It's really very important the a l You, the Amazon Labor Union is an upstart union. It's not aligned with an established labor union. Yet it beat one of the world's most powerful companies with not that much help from organized labor and with limited funds. How did it do that? The workers here wanted to change their conditions, and they built a very strong organization among themselves. And in some sense

that's always what makes union succeed. So whether there's a well funded national union or whether it's an upstart union, what's critical to success as when workers themselves are involved

in building an organization to change their conditions. So they did it here through very effective organizing, through building connections across racial and gender and ethnic device, organizing multiple languages, and through effective use of social media, but also through just talking about the problems that work and committing to one another that they wanted to build an organization to change them. You know, we hear a lot about the organizer, the top organizer. How much of this is due to

his push and his personality. It's hard for me to say, but I would say that union organizing always involved more than just one leader. So he was clearly a very powerful leader, but there were many other workers who are involved as well. I'm just wondering, and I don't know if if there's an answer to this, but is it better to have an upstart union or to have a

union with the backing of organized labor. Well, I think that whether if there's a national union involved or an upstart union with critical is that workers themselves are involved in the fight and their solidarity among the workers. And we've seen that plenty of times with national unions as well. So there are some lots of examples, for examples, the Justice for Janitor's campaign or the successful organizing of healthcare

workers around the country with national unions. The key is that workers are involved in building their own organization, and there are advantages to being with a larger organization in the sense that there's more resources that can be brought to bear on contract fights. But this also shows that what is critical is that workers themselves are involved in building the organization, and sometimes that happens through these more

grassroots endeavors. I'm just wondering, and I don't know if if there's an answer to this, but is it better to have an upstart union or to have a union? You know? With organized labor? Well, I think that whether if there's a national union involved or an upstart union with critical is that workers themselves are involved in the fight and their solidarity among the workers, and we've seen that plenty of times with national unions as well, so

there's lots of examples. For examples, the Justice for Janitors campaign or the successful organizing of healthcare workers around the country with national unions. The key is that workers are involved in building their own organization, and there are advantages to being with a larger organization in the sense that there's more resources that can be brought to bear contract fights.

But this also shows that what is critical is that workers themselves are involved in building the organization, and sometimes that happens through these more grassroots endeavors. A key part of a LU strategy was to request and and all or b vote as soon as a competition signatures from the bare minimum of the workforce, and you need to win.

What do you think of that strategy? Yeah, I mean it's fairly unusual, and the past, unions have typically sought to get about sevent of workers signed out before filing for an election because historically the effect of an anti union campaign by an employer was to erode union support.

So this suggests that maybe the dynamics are different now that there's much more public support for unionization and workers also have a sense of their labor market power, and so it could well be that it's now possible to win union elections even with hostile anti union campaign by employers with a lower kind of threshold of support, because workers are less likely to become scare given their increased labor market power and all the growing recognition that workers

can win unions and can make changes at work. You refer to this federal chair your own power recently called the labor market tight to an unhealthy level. Does that give fresh power to a new push for unions? It does because workers have an understanding that that they can't just be easily replaced, and that they have more bargaining power to demand better conditions and higher wages, safe for working conditions, and more dignity at work when it's harder

to find workers. So would you say this will galvanize labor activists and workers beyond Amazon to unionize. I think it is likely to have that effect, particularly when combined with the recent victories of workers at Starbucks, as well as the increased union activity amongst journalists, among teachers, among

all sorts of different workers. But it's a little too early to say whether this will really mark a turning point for labor in the United States, And tell us what's been happening with labor in the United States, Let's say the past decade, because there have been a lot of Supreme Court cases that have cut down the power of labor unions. Just give us a general kind of overview. Yeah, so, unions once represented about a third of the labor market, and during that period there was a great deal more

equality in the United States. Unions were effective at raising wages for workers um and also for giving workers more of a voice in the political system. But since early since the nineteen seventies, unions have declined, and there have been a series of hostile anti worker decisions by the Supreme Court, particularly in recent years, making it harder for workers to organize unions and making it easier for employers

to weakend unions. And the results of the the kline of unions has been in part growing inequality be and a decrease of political power for working people generally. Let's talk about what happens next at this Amazon in Staten Island. Because there are a long way away from a contract. The company has until April eighth to dispute the results, and in an emailed statement, Amazon signaled a long legal

battle could lie ahead. It said it was evaluating our options, including objections based on the inappropriate and undue influence by the n l RB. So what do you read into that and what can Amazon do at this point? I mean, that's suggests that Amazon intend to continue to fight the organizing effort and not to comply with its duty under the law to bargaining good faith. It is obligated under the law to sit down and bargain with these workers

and to do so in good faith. But that suggested me that they will file multiple legal challenges and attempt

to delay and postpone their obligation to bargain. The notion that the NLRV was inappropriately interfering in the election by enforcing the law and filing a suit against what the n llr B believes to be an illegal firing is really a novel and questionable argument, and I don't expect that Amazon will prevail if it decides to bring that argument forward, but it could very well use those legal challenges to delay, and in that case, workers will need

to continue to organize and to put community pressure and public pressure on Amazon to urge it to comply with the law and sit down and bargain and good faith. Is there a time limit for you know, the workers organizing efforts. So the law obligates Amazon to sit down and bargain and to do so in a timely manner. However, it is not at all uncommon for employers to refuse to do so while they litigate a case, and so it could be quite a lengthy process during which Amazon

refuses to bargain while it pursues legal challenges. But the union does lose its status during that period is it more than a year usually in negotiations with employer. So typically once they're going to established union, employers and unions sit down and negotiate regularly, as we've seen with the baseball players, and we've seen with GM, and we see with Forward and it's it's actually quite can often be

mutually beneficial. But frequently with first contracts, and particularly with a company like Amazon that has so staked its efforts on preventing unionization, in those contacts of the first contract, we often do see very lengthy delays. And although again the law obligates Amazon to bargain and to bargaining good faith, it doesn't obligate them to agree to a particular contract. And it doesn't give the board, the National Labor Relations Board,

the right to come in and impose a contract. Instead, it just obligates bargaining, and so in order to force that bargaining to occur, if Amazon continues to be intransigent, the workers will really need to use their collective power protests, potentially a strike, and bringing to bear public pressure on the company to urge it to comply with the law and do the right thing and negotiate a fair contract. Would you say a contract is certainty? Certainty very hard

to predict. I think it will depend on whether the workers are able to continue to maintain their collective organization. And also the more they're able to win elections at other warehouses, the more power they will have in bringing Amazon to the bargaining table. And there are additional elections scheduled. Do you think our country will ever go back to the time when unions were such a dominant force again,

I think it's really hard to predict. But I do think that workers in the United States want a better life. Um they want more dignity on the job, more rights on the jobs. They want to be paid enough to have a decent life for themselves and their children. So I think there's widespread interest in having organization among workers, that workers have of us on the job. Whether or not they'll be able to achieve it, I think it

is still an open question. The Supreme Court is it twice in two opinions of the Supreme Court has cut back on union rights in recent years. I would say there are three important opinions in recent years that have

cut back on workers collective action rights. One was the Janice case where the Supreme Court said that all public sector workers have to be right to work, meaning that workers who are covered by a union contract can't be required to pay fees, even sees that UM cover just the cost of the contracts and the cost of the

representation that they received. So basically, the Supreme Court transformed all public sector workers unions into open shop unions, which creates a free rider problem because it means that workers can receive the benefits of the union contract but without paying for the cost. And the Supreme Court did that by employing a very novel and aggressive theory of the

First Amendment UM. A second important case with the Supreme Court held that employers can force workers to waive their right to proceed through class actions or collective legal actions and instead to arbitrate their claims individually. So that was basically saying that the n l r A, which protects workers right to engage in collective action, that that right

can be waged through mandatory arbitration agreements. So that's related to unionization, but it's really more about collective organizing rights. And then just this past term, the Supreme Court said that the state of California could not require employers to give access to farm workers organizers to farms in order to talk to workers um without compensating employers. That that's basically requiring access and are enable workers to organize the

union violated employer's property right. So what's Congress doing? So there's a bill in Congress called the Proact that would reform labor law and make it significant easier for workers to organize unions and critically for them to win first contracts. It has passed the House, it has not yet passed the Senate, but it would significantly alter the landscape so that many more workers could successfully organize unions when they

want to do so. Thanks Kate. That's Professor Kate Andreas of Columbia Law School and that's it for this 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. I'm June Grosso and you're listening to Bloomberg