You will and you will become a member of the U. S. Supreme Court. That was Senator Patrick Leahy telling Supreme Court nominique Tangi Brown Jackson that no matter of the ordeal of her nomination hearings where Republican senators have barraged her with the tax centering on crime and race, she will be confirmed to be the first black woman to be a Supreme Court justice because the Democrats have the votes. Here's Judge Jackson on what she'll bring to the court.
What I would hope to bring to the Supreme Court um is very similar to what a hundred and fifteen other justices have brought, which is their life experiences, their perspectives and mine include being a trial judge, being an appellate judge, being a public defender, being a member of the Sentencing commission um. In addition to my being a black woman. Uh lucky inheritor of the civil rights dream. Joining me is Adam Winkler, a professor at u c
l A law school. Start by in general, give me your opinion of Judge Jackson and how she will how she would fare as the next Supreme Court justice. Well, there seems to be no doubt that Judge Brown Jackson is a very well qualified nominee to the Supreme Court, as she has a lot of judicial experience. She brings a diversity not just in terms of her racial identity, but also in terms of her perspective, having been on the Sentencing Commission, having been a public defender, never had
a public defender on the Supreme Court. In other ways, she's very much a standard candidate for the Supreme Court in the sense that she comes from a background of being a judge, primarily in recent years from the District Court and then onto the d C Circuit, and comes from Harvard Law School, like ow many justices these days come from the very very top law schools. So she meets the traditional requirements but also has some elements of
her path to give her a slightly different perspective. In her opening statement, she referred to her nomination as historic and said that she would be a fair and neutral arbiter. What did you see in her opening statement and what
she addressed about her role as a judge. Well, I think what we see in her opening statement is what we see so many Supreme Court nominees lately, which is kind of very uncontroversial statements that they will be neutral arbiters, as Chief Justice John Roberts said in his confirmation hearing
is just an umpire calling falls and strikes. The truth is, we all know that judges really do approach cases with their values philosophy, influenced and informed by their own experiences, and the sort of anodyne perspective on what judging is just a neutral arbiter, almost like a machine that you can just put in and fromation and get the right answer out of. It. Seems to be what senators want these days, but certainly doesn't accurately describe what any justice
will do, either Justice Jackson or any other. Yeah, the Republicans seem to be looking to get her judicial philosophy. Now, I don't know if they're referring to is she a textualist or something else? Would a Supreme Court nominee explain their judicial philosophy that way? Have the textualists done that in the past. Well, we have had justices in the past to describe their judicial philosophy as originalists or textualists.
But the truth of the matter is that justices and their nominees do not want to get into their philosophies of how they are going to decide cases with any
kind of specificity less they lose political support. It is one of these things where in the confirmation hearings, if you have something controversial to say, your best bet is just not to say it at all and hope that you have the votes to get through a Nonetheless, given a Judge Jackson's incredible background and clear qualifications, barring any kind of obvious misstep, saying something very controversial and unnecessary
in these hearings, she seems certain to be confirmed. So there's really no gain for justices to get in at least in depth in their philosophy if it might cost them a vote. Republicans are using this soft on crime attack sort of as a way also of attacking President Biden's commitment to law and order. Will that work for them in her case? Well, I guess it depends what you mean, June by work for them. I think in the sense that they're not really going to derail this nomination.
I don't think they think they're going to derail this nomination. I think what works for them is using these confirmation hearings as an opportunity to make political speeches. To get your ten minutes of quotes in the various advertisements and Fox news is and promoted by the local political party on Twitter or whatnot, and really not about examining the experiences, perspectives, and philosophies of the nominees. And so we see that over and over again, and it's frankly, it's not just
a Republican thing, it's a democratic thing too. We saw that in with regards to the Trump nominees to the Supreme Court, that Democrats were trying to tie the nominee to the policies of the Trump administration. This is basically what the confirmation hearings have become, basically forums for senators to make political speeches that relate or not relate depending on the particular question to the nominee at hand. So the Republicans, one after the others said they weren't going
to make this a controversial hearing. They weren't going to attack her as some of their nominees have been attacked. And yet Senator Josh Holly started a Twitter storm last week that criticized her sentencing of defendants convey did of the possession of child pornography. Does that seem to be a personal attack. Well, we are seeing attacks on her
character and on her background, often sometimes scurless attacks. I think Marcia Blackburn, the Senator UH on Monday, accused Judge Jackson of a whole bunch of things that we're based on, a sort of scurless accusations, quotes taken out of contact, putting at her feet responsibility for things like transgender rights, even though she's never ruled on a transgender rights case in any way. And so we do see these kinds of attacks because this sort of plays to the political base.
Even the Republicans said they're not going to attack her personally, of course, they're going to attack her and are attacking her. It's true they're not commenting on her history of sexual assault like a previous nominee, but that's because there are no credible allegations of such things. The Republicans keep on bringing up the Kavanaugh hearings. They seem to be forgetting the Amy Coney Barrett hearings, which, as I recall, we're
a pretty restrained affair. That's right, and we often see Republicans harkening back to the Judge Bork hearings without talking about any of the other Republican justices around that same time who did get through without the kind of questioning that Robert Bork cat It is true that it seems that more and more Senators want to use their opportunity to question a nominee to sort of relitigate past confirmation battles,
and even in ways that aren't aren't accurate. Amy Coming Barrett was never asked about her faith in her Supreme Court nomination process. She had been asked about it in a previous confirmation process for a different position, but not in her Supreme Court justice confirmation process. But Lindsay Graham asked of the faith of the judge Jackson, showing a kind of a willingness to make accusations but yet do the exact same thing you accused the others of doing.
He also asked how faithful are you on a scale of one to ten, And of course you didn't answer that. But I thought that was a strange question at a judiciary hearing. It does seem like a strange question. And what does it really mean? Are you full of faith to God? Are you faithful to your spouse? Like? What what exactly is Lindsay Graham getting out? It's not really clear.
But again, one thing that is clear that the confirmation process is broken, and the truth is it's been broken for a long time, and maybe we shouldn't expect more given its history. You know, the first confirmation hearings for a Supreme Court justice came after the nomination of Lewis brandeis the first Jewish person who was nominated for the Supreme Court, and it was clearly a reflection of a
fear of this sort of Jewish radicalism. Then confirmation hearings didn't really ratchet up and involve the participation of the nominee himself really until after Brown versus Board of Education nineteen fifty five, when John M. Harland was nominated at the Supreme Court. All of the sudden, now senators like Strong Thurman wanted to have questioning of the nominee and
to make sure they had the proper judicial philosophy. So we've often seen the confirmation hearings be an effort by political coalition to try to retain and keep control of the Supreme Court, except for the Kavanaugh hearings, where the accusations of sexual misconduct were raised during the hearings. Have any of these hearings elucidated something new about the candidate, or is it usually just everything we know being talked about over and over. Well, I do think that candidates
have been trained not to say anything. That the system has been designed by presidents and their political parties and their advisors to just get through and if you've got the votes going in, then don't say anything controversial and don't say anything that could get you in trouble. That's sort of one of the lessons that has seemed to have come out of the confirmation process in recent years.
And as the confirmation of a justice becomes just another partisan issue in American political life, one that divides deeply different coalitions and makes it very hard for people to cross party line, really we shouldn't really expect anything more. How important is it that she gets some Republican votes, or at least one Republican vote. I don't think it
really matters very much. I don't think that if she gets one or two Republican votes, it all of a sudden means that her nomination was one that satisfied the conservative movement or the Republican Party, And it certainly won't show that the Republican Party is willing to bend on judicial nominees of the Democrats simply because one or two
people might vote in her favor. Um. She is clearly an eminently qualified candidate, and just as Republicans have been able to get their candidates through pretty consistently um in the Supreme Court confirmation process, I imagine that she'll get through with maybe exclusively Democratic votes, maybe one or two Republicans. The only thing I hope that comes out of it is that we don't see a nominee who finds that because of the process they are changed, that they become
a different person than they might otherwise be. It sometimes said that Clarence Thomas became very bitter after his confirmation hearing and hardened his views on some issues. I don't know if that's true or not, but it's been said, and certainly there was concerned after Brett Kavanaugh railed against Democrats for their attack on him and the confirmation hearing, promising payback, which raised questions about whether as a justice, he would be motivated by a desire for revenge in
these kinds of confirmation hearing. If so, it shows one of the dangers of having this very highly politicized process. Thanks for being on the show Adam. That's Professor Adam Winkler of u c. L A Law School. This week, the Supreme Court considered whether a group of five hundred Taco Bell employees had to arbitrate overtime claims against a Taco Bell franchise rather than press them in federal court. The case centers on the waiver of rides by failing
to promptly invoke arbitration early in litigation. The Taco Bell employees say they've been cheated out of overtime paid by Sundance, the company that owns about one fifty Taco Bell franchises. The case proceeded in federal court for nearly eight months before the company invoked an arbitration provision in its standard form employment contract. Confusion seemed to reign during the oral arguments, although Justice Stephen Bryer seemed to best explain the controversy.
I mean, you had an arbitration agreement, so what you decided to do with brial lawsuit? And nobody said anything further for quite a while, and then finally the other side said, let's quote arbitration and were they too late? Now that kind of situation, I bet arises fairly frequently. Okay, Now we're starting to create a matrix of rules through your logic. It is so complicated that that that it's at least hard for a lay person like me in
this area to understand. And what's worrying me is that my instinctive answer, which you will tell me is wrong. If it's wrong, is it depends? My guest is Mark Rifkin, a partner Wolf Haul and Stein. First of all, tell us why Taco Bell is being sued. Yeah, So this is a labor case where the plaintiff, the lleges violation of wage and our law. And it's a case that was related to a second case by a different employee in a different state, also against the same company, Sundance
for violating the wagean arrow laws in Michigan. So the Iowa case that's in front of the Supreme Court now was related to the Michigan case brought by a different employee, both of whom alleged wage our law violations. And what's the basic issue in the case. So the question in the case, as I understand it, although I have to confess after listening to the to the argument, I'm not
sure that anyone understands it. But the question in the case is whether a court can require either party to an arbitration agreement to demonstrate prejudice to the other party. If the party seeking to compel arbitration in this case
it was Taco Bell, it was Sundance. If if the party seeking to compel arbitration has waived its right to do so by participating in litigation in court before asking that the matter be referred to arbitration, and so in this case just briefly because the proceedings get confusing, but briefly describe what happened to make the plaintiff say that tak Abel had engaged in litigation beforehand. Sure, so Morgan files a complaint and says that the Sundance has engaged
in this wage an hour violation. Sundance answers the complaint does not assert the arbitration agreement that is in Morgan's employment contract, and the case proceeds. It gets coordinated with the case in Michigan by Wood, also a wage an hour case where Sundance was the defendant, and like they did with Morgan, they didn't assert any arbitration agreement in their answer. In the Wood case either, both cases were
sent off to the mediation where would settled. The case that was pending in Michigan, the Morgan case, the case that's now in front of the Supreme Court, went back to Iowa where the defendant sun Dance, then, after an unsuccessful attempt to mediate a settlement, then try to compel arbitration under Morgan's employment agreement. And Morgan says, well, wait a minute. You waive that right by not asserting it
sooner and by invoking the litigation mechanism. It's too late for you to insist on arbitration now, and that has led to the dispute that the Supreme Court now has in front of it. The District Court agreed with Morgan that Sundance waived the arbitration provision, but the Sixth Circuit disagreed and said no, Morgan failed to demonstrate any prejudice and therefore no waiver had taken place. And Morgan's answer is, will wait a minute. Nobody else has to show prejudice
in the case of waiver. Why are we treating arbitration agreements different than any other kind of contractual agreement where prejudice isn't required to demonstrate waiver? And that's the issue that presumably the Supreme Court was going to decide. So, mark are the circuits split on whether or not prejudice is required here? There is disagreement about whether prejudice can
be required or not. And so the principle that the Court should have, in my view, should have considered is whether requiring prejudice to show waiver in the context of an arbitration agreement treats arbitration agreements differently than all other agreements. That would be a violation of Section two of the Federal Arbitration Act, which essentially requires that arbitration agreements beat
on equal footing with all other contracts. This places arbitration agreements in a preferred status because it imposes an additional requirement on a partner trying to show that the agreement was waived. The Supreme Court arguments the justices that we're talking about state law versus federal law about whether the arbitration agreement is valid and forcible. I mean, did you get any feel after the arguments of what they are
concerned about. I honestly had a feeling throughout the entire argument of being Alice in Wonderland, because the entire premise of the argument was that arbitration agreements have to be on equal footing with all other agreements, except when they don't. And then we went into this whole discussion about weather Section three of the f a A, which says that any party may compel arbitration if that party is not
in the fall of something. It doesn't say what, and the court then tried to figure out what that meant. And you know, I was thinking to myself, why why are they isolating Section two in section three, as though those provisions should be read separately and independently. And I kept thinking, So, if I'm driving down the highway and I get pulled over for speeding, you know, the law requires that I observed the speed limits, and it also requires that I use the turn signal when I change
from one lane to another line. I have to do both. And so if I get pulled over for speeding, I can't say to the judge, who here's my case, but I use my turn signal, I use my turn signal. I have to satisfy both requirements. And it seems to me that the court and the parties tried to split this up piecemeal, and we lost sight of the whole issue, which I think is, you know, it's just a simple question. It's sun danced knowingly and intentionally manifest an intention to
abandon its right to insist on arbitration. If it did that, that ends the question. If it didn't do that, then the party should be sent to arbitration. The argument got so complicated and so convoluted. I don't know that any one can understand it. Now, where does prejudice fit into
what you can say? The issue is so some states, and New York is one of them, Some states say that in order to demonstrate waiver of any contractual right, there must be a clear manifestation of an intent by the party who is waiving the right to relinquish a known right. But in the arbitration context, New York says, like many other states do, that the Federal Arbitration Act also requires prejudice to the party opposing arbitration before an
arbitration clause may be waived. So there's this special layer of proof that's put on a party to show that an arbitration clause has been waived that doesn't exist in any other contract where one party is claiming that the other party has waived a contractual right, and that's that's really the gist of the dispute. Which way do you
think it should come out? I think that if Section two of the f a A means that arbitration agreements have to be interpreted on equal footing with all other contracts, that the prejudice requirement should apply if state law applies
that to all contract rights. So if if a state law says that to demonstrate waiver of a contractual right, a party has to show two things, first, a clear intention on the part of the party that's waiving the right, two intentionally and deliberately waive a known right, and also must show that the party asserting waiver has been prejudiced,
then fine, then Section two is satisfied. But if the state law says you have to show a clear intention to relinquious and known right and you also must demonstrate prejudice only in the context of an arbitration clause, then I think the requirement of equal status under section two of the f A has been violated. What's happening here is that the Supreme Court is putting arbitration agreements in
a preferred class. They are giving special status to arbitration agreements and if we look at this case and we listen to that argument in any other way, we're not seeing what's going on. It used to be the law that the f a A Was intended to protect arbitration agreements between sophisticated commercial parties, and to do that, the law put those agreements on the same footing as all
other contracts. We've moved now so far beyond that that in any context, in a commercial context, in a consumer context, in any context. The Supreme Court now seems to think that arbitration agreements have some special protected status above all other contractual provisions. And that's the only way you can understand what's happening in this case and what happened in the argument. There's no other way to understand what was
going on. I mean, even the liberal judges on the Court got lost in this debate about the Section three applied to substantive law. Is it a procedural question, is is a state law question? Is a federal question? None of that matters unless in the back of your mind you're saying to yourself arbitration agreements are special. Because if you don't say that, you don't get past Section two. And it's It's like me and my speeding ticket. Okay, sure, I used a turn signal and I changed lanes, but
I was going a hundred four miles. It makes no sense that we're breaking these things down into these isolated components, except if you recognize that arbitration agreements are, you know, above the law. Thanks for being on the show. Mark. That's Mark riskin a partner Wolf Holdenstein, 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, and remember to tune into The Bloomberg Law Show every week night at ten BM Wall Street Time. I'm June Grosso and you're listening to Bloomberg