This is Bloomberg Law with June Brusso from Bloomberg Radio. By a six to three vote down ideological lines. The Supreme Court upheld a Republican drawn congressional map in South Carolina, rejecting a lower court's finding of racial gerrymandering and boosting Republicans in the fight to control the House for the
rest of the decade. The six Conservative justices overturned a three judge panel's decision that Republican lawmakers had unconstitutionally relied on race when they removed thirty thousand black voters out of Republican Representative Nancy Mace's district a quote bleaching of African American voters from the district. Joining me is elections law expert Richard Rffald, a professor at Columbia Law School.
The majority opinion by Justice Alito. What was the reasoning of the Conservative majority here?
The majority concluded that the three judge court below the district court erred that there was clear error in finding that the redistricting of District one in South Carolina was done on the basis of race rather than on the basis of party. The Court recognized that racial jermy mannering and partisan jurry mannering often look alike. They said the burden was on the plaintiffs to show that this was
race and not party. And then the court then kind of carefully picked apart and quite to tail the findings of the district court and concluded that the district court had made a mistake in concluding based on the evidence that this was racial rather than partisan.
I mean, the district court had heard evidence right and made these conclusions that the lawmakers, the Republican lawmakers, established a target of seventeen percent black voters for the first district. Alito said the state had strong evidence that the seventeen percent figure was simply a side effect of the legislature's partisan goal. What evidence is he talking about.
Well, the thing is, normally, when you're viewing a district court's findings a fact, that burden is on the state to show that the district court was completely wrong. And here he seems to have put the burden more on the plaintiffs, not just in the original case where they persuaded the district court, but also in the Supreme Court, to show that the district court was right as opposed
to being reasonable. I mean, in some ways there's an argument that he in applying what is theoretically a differential standard to the district court, the Senative clearly erroneous. He went much further and in some sense reviewed all the facts himself and concluded that on his reading of the facts and his reading of the expert testimony, the plaintiffs had not made their case.
He also said that a party challenging a map's constitutionality must disentangle race and politics if it wishes to prove the legislature was motivated by race as opposed to partisan jip and the challenges provided no direct evidence of a racial gerrymander. Is he looking for a statement by a Republican lawmaker, or we're doing this because of race?
Righting me.
It basically said you could either do it by direct evidence, like a smoking gun statement, or by strong circumstantial evidence. And hear what the plaints were about the show is, if you look at the numbers, there was a huge
movement of people in and out of this district. The map makers dramatically move large numbers of people around, but in particular they seemed to be moving more black voters out and more white voters in, and so there was evident, and that in the end, with all of the movement, that sixteen point eight percent number was a number that the Republicans felt was low enough so the district would continue to chill Republican His view is that was really
about partisanship. The plaintiff's view and the district courts view was that no, that showed that they were engaged in a racial gerrymander. They moved like one hundred and eighty thousand people around, but their target was to keep the racial fraction the same, and they did it by moving black voters in one direction and white vote in a different direction.
The dissent, written by Justice A. La Keg and joined by the two other liberal justices, was scathing.
She basically said that this case looks a lot like a case the Supreme Court decided seven years earlier, Cooper versus Harris, which presented a very very similar question of was it race or was it party in a districting dispute coming out of North Carolina, and the lower court had found that it was race, and the Supreme Court a firm basically by saying, you know that we're relatively different to the lower court. And the lower court had
facts that support it. Kagan wrote the majority opinion in that case, Alito wrote the descent, and as she points out, much of the language and much of the ideas of Alito's majority opinion come directly from his descent in Cooper versus Harris, a case decided about seven years ago, and so her view is that this case he should have been governed by that case and should have come out the same way.
She also said the majority was stacking the deck against the challengers when it presumes legislators are acting in good faith, and she quoted from Alito's opinion when racial clu notifications in voting are at issue, the majority says every doubt must be resolved in favor of the state, lest heaven forfend it be accused of quote offensive and demeaning conduct. I mean taking Alito head on, Yeah.
I mean Alito begins with the basic premise that whenever a law is challenged, the law has presumptively valid. The burden is on the plaintiffs to show that it's invalid. And that's the kind of judicial review one on one,
as you begin with the presumption of validity. But she's saying, in effect, she's taking it so far that he's using it not at the opening stage of the case, but on the appeal following a determination by the district Court after a lengthy trial with lots of testimony, lots of exhibits, lots of depositions, as pre judge panel that found the
other way. And so she's saying that, in effect, he's putting such a heavy thumb on the scale for the legislature that he's making it almost impossible for plaintiffs to prevail in a case, even after they prevail before the district court.
Is this decision raising there for winning a challenge to a map based on racial jerry mandering.
I think it is. I mean, I think basically the burden is now even heavier on the plaintiffs to disentangle race from party and to show it was clearly race and not party, as opposed to the intertwining that we often see. So I do think although technically he's applying the same standards as before, he is now hying them
in a much tougher way. He's also added a kind of requirement that court had rejected as a requirement before, which is that the plaintiffs produce an alternative map which produces the same partisan results but with a different racial makeup to show that it really was race and not party that was driving this court in the past that said having a map is helpful, but now he has come very close to making it a requirement.
And then you have Clarence Thomas, who joined the majority but wrote separately, do basically say federal courts should just keep out of this issue completely.
That's correct. He basically said that ago in the Rout show case, we decided that partisan jerrymandering is not justiciable. Now I think that racial jerry mandering is justice non justiciable, and that it's so difficult to figure out to disentangle the legislative motivation and legislative consequences. That that's for the state legislatures and for Congress. Congress has the power to review this and write rules, but it's something that the
courts can't handle. And he actually didn't join one part of the opinion, the part of the opinion where Justice Alito went through all of the expert testimony and picked it apart, and he basically said, you didn't need to do that. But more of the points, the fact that you would engage in so much detail with the expert testimony. It's one of the reasons why I don't think courts should be involved in this at all.
It is difficult to separate race from politics. But now does this give, as Elena Kagan said, it gives state lawmakers an incentive to use race as a proxy to achieve partisan ends.
Yes, I think until now the Court has said that although we won't hear parties in jerrymandering cases, we will hear claims of racial gerrymandering. So it was one way in which plaintiffs couldn't directly attack the parties in jerrymander but they could try and do that if they could show that it was also a racial gerrymander. Now the Court has pretty much made that impossible, or made it an even much much harder to be able to make
a racial gerrymanderin claim outside the context of party. I suppose you could have a racial gerrymandering claim in a one party state, but in a situation where rac and party are so intertwined, it's going to be much harder to make any kind of racial gerrymandering claim.
So for anyone who thought that the Conservatives had changed when the Court rule that Alabama Republicans violated the Voting Rights Act? Is this proof that, No, it hasn't changed.
I think it shows the ongoing difficulty of dealing with these districting disputes when race and party are so intertwined. And yes, that case, the Alabama case was a case where the court did differ the findings of the lower court, and there although there was a situation where the plaintiffs didn't provide alternative maps to show that the district could
be done in a different way. But I think in some ways that it really does show the court's kind of impatience with the effort to possibly outflank the court's unwillingness to hear partisan jury mannering claims by hearing racial jury mannering claims where if the plaintiffs win, the victory would be similar to the victory to partisan jurry mannoring case. I think they've just made that much harder. It's not impossible.
What's the difference between challenging a map under the Voting Rights Act and under the Equal Protection Clause of the Constitution which this case was brought under. Could these plaintiffs have brought this case under the Voting Rights Act?
They did bring a Voting Rights Act vote dilution claim, which I think they won on, but the Supreme Court said the lower court erred on that as well, because the lower courts have applied the same standard and it's a different standard for bote dilution cases. So they reversed and remanded. So if there's going to be a trial on that, it would be the different claim. I think they are somewhat different theories. The theory legal protection claim
is that the state's motivation was predominantly racial. Doesn't have to show that there was an underrepresentation of black voters, but just that the state was purposely drawing lines based on race. And whereas both dilution, you don't even have to show that a race was intentional. What you do have to show is that as a result of the line drawing, black voters or voters of color were underrepresented, that it was more difficult for them to win elections than otherwise.
Would you say that For the last decade or so, the Roberts Court's decisions have made it harder for black voters to challenge redistricting plans.
Well.
The Roberts Court obviously famously got rid of Section five of the Voting Rights Act, which required dates in covered jurisdictions to get Justin Department approvals first, so therefore actually putting the burden on plaintiffs to go ahead. I think how they've handled both dilution cases has been a little inconsistent. As you point out Plank, that is one of vote
dilution cases from Alabama last year. This was technically a constitutional case, so it's a little hard to characterize sometimes plaintiffs of one, but certainly this one I think is going to make it much harder for plaintiffs to win cases like this.
Thanks so much, rich That's Professor Richard Briffald of Columbia Law School. Coming up next on the Bloomberg Law Show. It looks like the jury and the Trump hush money case will begin deliberations next week. We'll take a look at the prosecution's case. I'm June Grosso and you're listening to Bloomberg. The historic first criminal trial of a former
president is nearing a conclusion. Manhattan jury will decide whether the former president falsified his company's records to hide a hush money payment to poor and star Stormy Daniels and influence the twenty sixty election. The case could be in the jury's hands as soon as Tuesday, after closing arguments by both sides and jury instructions. Joining me is criminal
defense attorney Jeremy saland a former Manhattan prosecutor. Let's start with the cross examination of Michael Cohen, the prosecution star witness. The defense attorney was very aggressive. How effective was he in undermining Cohen's credibility which sort of hangs by a thread.
Anyway, I think that there was diminishing returns in the time frame that a Blanche kept him on the stand, the lack of what I thought was enough leading questions as opposed to open ending questions from what I read. And I also thought that there were times when he hits some of the same points over and over, and that goes back to the diminishing returns. And it's not just diminishing returns in that you lose the jury they get the point, but you also run the risk of
opening certain doors. The end of his cross examination went flat. It could have been better, but at the same time, it exposed Michael Cohen for who he was, which is a conniving, dishonest, selfish person with an agenda to really hurt the former president. Now I will say this though, and this shouldn't be lost in anybody. When we think of John Gotti, by a show of hands, how many people think the man was innocent. He was convicted after trial. And I'm not comparing the two and saying Donald Trump
is John Gotti. But who was the main cooperator in that case? It was Sammy the Bull. So when we hear up beating up Michael Cohen, and we hear about the attacks on Michael Cohen, you know he's not Sammy the Bull. And if Sammy the Bull, who was alleged to have committed I believe some nineteen somehid murders could cooperate and have credibility and there could be a finding of guilt against John Gotti. So that matter. How many people love the movie Goodfellas that's based on Henry Hill.
Henry Hill was a cooperator who had a rap sheet in all sorts of bad things. And people loved Henry Hill, or at least they loved Rayleiota in the movie. So you know, let's have some here. You don't catch the main bad guy, you don't get the kingpin, you don't get the main drug dealer. You don't get the main mobster, not saying again that that that's who Donald Trump was.
But you don't get him or her unless you get the person who is next in line, a lieutenant, a worker, the dealer, the guy who cuts the drugs, the guy who counts the money. You don't get that unless you have some of those dirty hands. That's how you get the big boss.
There were some things that Todd Blanche, the defense attorney, brought out that cast out on Cohen's testimony at trial. For example, that phone call he made in October of twenty sixteen where he said he was updating Trump on the Stormy Daniels payment, and it came out that he probably was not talking to Trump.
Well, I don't know if that's how it came out there. It was probably not talking to Trump, because you'd have to think that Michael Cohen would call Trump's right hand man, was speaking of ninety seconds about some teen harassing him. Maybe maybe not, but any New Yorker understands this. I think if you were born and or lived in New York at any point in your life, you know this. If you're sitting at a light and you're sitting in traffic for thirty seconds for a minute, you got something
to do. That's an eternity, it's forever. In other words, ninety seconds to be on the phone very well could have included three seconds, ten seconds, seventy seconds of conversation about this teenager. But it's not mutually exclusive. Just because you're talking about one doesn't mean you're not talking about another. A minute and a half is a long time.
The defense called two witnesses in their case. The last one was lawyer Bob Costello, who I think they called to damage Cohen's credibility even further, but he ended up acting out on the witness stand, being disrespectful to the judge, rolling his eyes, muttering on the stand, and incredible. The judge said at one point, are you staring me down right now? And the judge cleared the courtroom.
The way this happened, though, is atypical, and it's really disappointing if I'm Donald Trump's team in Donald Trump, because you have a witness who objectively could have shared some really valuable things and information about Michael Cohen, supposedly telling him, meaning Pastello, that Donald Trump wasn't aware that basically Donald Trump was not in the noah on what was going on, but it was lost in the petulance, sophomoric, amateur behavior from a guy who served in his senior capacity at
the US Attorney's office. This is not his first rodeo. What he was thinking, he shot his own credibility in the flot. You know, don't run your mouth, show respect to the court. You may be a fed and you look down on the state. Maybe that's a little des arrogance.
I don't know.
But you're in a court of law and follow the court's instructions. And as I tell every witness, every witness, kill him with kindness. Looked the defense or prosecution in the eyes, look the jury in the eyes, be respectful, be the bigger person. That's what he did not do. And I'm really surprised.
I'm really surprised, experienced lawyer. So the biggest news to come out of the trial this week was no news. Actually, Trump had vowed to testify in his own defense and started backing off. I don't know that any defense lawyer would have encouraged him to testify. So was that the right decision?
I know, quivocally absolutely, and any criminal defense attorney would say, especially in a case like this where he has a chance to hang. Do I think he's get an acquittal? And know? But I'm going down on the limb here. I may be completely totally wrong. So I could read juries, I would be charging a lot more. I think we all would. But none of us could read a jury's mind. But you know I've used this term before, and I'll go back to what every New Yorker knows. Every New
Yorker knows the term hutzbook. And he did not have the hutspur to get up there despite his behavior and his demeanor. He would get eviscerated, He would get hung
by his toes and hung out to try. And if he has a chance of beating this case, he would have lost it if he ran his mouth, because he would have opened up door after door, and as bad as Costello was, and as good, frankly as Michael Cohen was, none of them even on their worst dand would have done what Donald Trump would have potentially done on that stand. So it was a smart move, an intelligent move, common sense move, not to get up and testify.
Looking at the prosecution's case. Has the prosecution made out its case?
Do you think I thought the evidence. Again, if I wasn't in the court room, but from what I've read, I thought the evidence went in pretty well. There is an element of common sense that is so critically important here. You know, if I'm the prosecution, I'm arguing saying, you have Weifelberg's handwriting on these notes. It's not just Michael Cohen. It's not just Stormy Daniels. You have you know, phone logs,
you have other witnesses. You have Whope Hicks, who puts people in certain places at certain times, who describes Michael Cohen these are my words, not as a getting generous person that he's going to go out on a limb. Here, a man who I believe made roughly a half a million dollars a year and took a whole equity line of credit out to hide it to why he was getting them the money and to hide it from his wife, and was going to bear responsibility and take ownership of
those dollars. That seems, like, you know, pretty unlikely. So I think very much that the evidence went well. Will the jury convict, That's tough, but all they need is want to remember, All they need is want to hang in the defense.
Yeah, So now legally, the case gets complicated because with the prosecution, as you know, is out to make these misdemeanors of falsifying business records into a felony, so it has to be done with the intent to commit another crime. How tricky is that? For prosecutors, it's tricky because a couple things.
Let me sort of work backwards a little bit. When the jury gets the case, a judge can instruct the jury on what's called a lesser included offense, meaning the judge can tell the jury you can consider the felonies on the indictment, but even if you don't find the felony, you could find for the misdemeanor's variety or flavor of that same falsifying business records. That's what's called the lesser
included defense, even though it's not actually charged. Now, the question I would ask is, if I'm the prosecution, do I ask the judge not to submit that? If I'm the defense, do I ask the judge to submit it or not to submit it? Why do I ask that? Because in my view, a conviction on the misdemeanor is a loss, and that's end. On the face of Alvin Bragg, it's really all or nothing. So it's either a conviction
on the felony or an acquittal. If I'm the defense, do I want to make the jury make that decision and don't give them the sort of compromise. It's either is or it isn't. So it's an interesting question whether they're going to want the judge to instruct the jury or it's all or nothing. That's number one. Number two. The other difficulty is, you know, what is that other crime? Now you don't have to prove that crime beyond a reasonable doubt that you're trying to conceal some election crime.
So don't misconstrue that to prove this secondary element to make it the felony, the intent to commit or conceal this other crime, that you have to actually prove theon a reasonable with doubt that other crime. But you know, I see as much strong evidence as you did about the actual direct evidence of falsifying business records or the circumstantial evidence, it was more difficult. So I see the misdemeanor as an easy conviction. Frankreet, from what they've done,
thee going to be a little bit harder. I think they did a good job, but I think it's still going to be hard.
The jury instructions are always important. How much depends on how the judge frames the instructions for that second crime.
Well, there was some argument back and forth if I recall about whether there was two intents, and that's what the defense was asking for it. It's the intent to defraud and deceive, and you have to have the intent to commit another crime. There's an expanded definition of intent.
For example, that's in the actual jury instructions, where there's a charge solely for intent as opposed to the intent you will find in the charge for the particular crime, which is the same across the board, which is basically it's your objective and goal, which there is an expanded version. So the jury instructions, they're going to argue back and forth, and they've already started that process as to what they believe both the defensive prosecution should be given to the jury.
But this is a complicated case, but it's not. It's fairly straightforward, and if the jury has problems, they can go back and ask for the judge to reinstruct them. They can go back and ask to hear the trance script again and to listen to testimony again. But framing it has to be done on the right way. I have confidence that the court will. I have zero worry about that. But people are people. This is an intelligent jury.
These are New Yorkers. They could find reasonable doubt, I'm sure, and they could find proof beyond a reasonable doubt.
Has there been any real testimony or evidence on Trump's intent or motivation?
The prosecution does not have to prove motive. That is not an element of the crime, to be very very clear, As much as we want to add that in as prosecutors and defense attorneys may challenge or add their own motives,
it's not a requirement. So, for example, if your motive was to protect your family, as the allegations were on the home of President's side, as opposed to prosecution, which was to fix or protect the election, there is no requirement that that motive be proved beyond a reasonable doubt. I will say, however, if I'm the prosecution, I would say, even if you believe that that was his motive, that was to protect malaim if, what I would say is
they're not mutually exclusive. You can want to protect your family and have the intention of protecting your family, and there's the intent, not the motive, but he also had the intent to protect himself in the election and make sure this didn't get out to protect the election. So it's a mixed bag. And in terms of the evidence coming in, this goes back to that common sense. This
goes back to why are they paying for it? If you believe Trump had his hands in it, you know, why is he paying for this at this time, right before the election is about to hit, as things were going sideways, and you have Hope Hicks telling you that, you know, this could be really, really detrimental to women voters. I think they did the job they needed to do, even if not directly because you don't hear from the president, but circumstantially through all the other evidence and testimony.
We may find out what the jury says about all this as soon as next week. Thanks so much, Jeremy. That's criminal defense attorney Jeremy Salande. Coming up next on the Bloomberg Lawn Show. President Joe Biden is in another race with former President Donald Trump, this one over the number of judges confirmed during their term. I'm June Grosso and you're listening to Bloomberg. It's a milestone for President
Joe Biden. On Wednesday, the Senate confirmed his two hundredth judicial nominee, putting former President Donald Trump's total of two hundred and thirty four judges potentially within Biden's reach. Joining me is an expert on the federal judiciary, Carl Tobias, a professor at the University of Richmond Law School. Carl tell us about the milestone that Biden reached with the confirmation of Angela Martinez, a US magistrate judge, to Arizona's bench.
Well, he appointed his two hundredth lower court judge. In fact, there's another one yesterday, so there are two hundred and one federal judges whom he has appointed. And today Biden also named four more people, two for appeals courts vacancies, one in Maine on the first Circuit and one in the sixth Circuit Tennessee, and to find district nominees. So
he's following up on that milestone then moving forward. But especially important is the composition of the federal bench in the ways in which he's changed it, and we've talked about that a lot before, but especially diversity in terms of ethnicity, gender, two thirds. I think of all appointees are either women or people of color. He has broken all records for those two demographics as well as pointed as many LGBTQ people in three years as Obama appointed
in eight. He's been extremely successful also experiential diversity. Twelve of the appellate nominees are former Criminal Defense Council and so he's bringing experiential balance to the bench. All of that I think is very positive.
Is Biden in sort of a race to beat Trump's total of two hundred and thirty four judges.
Yes, he's been very candidate about that. He pledged that he would do that when he was a candidate, and he has carried through the White House Council's office has had very strong and careful people working on finding the very best nominees and work closely with red state Republicans to ensure especially recently as the blue state seats have been filled, to bring forward people whom Biden could agree with the home state senators on and there have been
some fine nominees from red states like Utah, Wyoming, and a number of other South Dakota two people just were confirmed I think last week. So they've been doing a lot of important in careful work on filling the bench. I think that's where they're headed and hoping that they will have enough time to eclipse Trump's total number of appointees.
Biden inherited less than half of the vacancies to fill that Trump had. Do you think that he can make up the difference in the amount of time left in his term?
I think so. But you're exactly right, as you remember,
and we've talked about before. In twenty fifteen sixteen, when the Republicans recaptured the majority in the Senate, McConnell just refused to move the nominees and they would go for weeks and even months without hearings, and so they ended up, i think, confirming two circuit nominees, which left a whole number of appellate vacancies for Trump to fill, and he did that fifty four, which I think is a record for the first term of any president, to the detriment
of District nowe But they filled all of them, the first time since nineteen eighty four during Reagan's administration, that all one hundred and seventy nine were filled. So there were very few whom could be succeeded. At the beginning of the administration, but some, especially appointing of Democratic presidents, did assume senior status, and Biden has named and confirmed forty two and four are waiting to be confirmed. But
you're exactly right, the numbers just are not there. I do not think that it's possible unless some others assume senior status and very soon that Biden will be able to match that. But again, these two today are very helpful, and there I think four or five other vacancies that still remain that could be filled. So it may be closed. I mean, he may have fifty or he may even
come up to fifty four, but it seems unlikely. Still, he's way ahead of Trump right now on district nominees, and so that's promising.
Why has the confirmation to the Third Circuit Appellate Court of a nominee who would be the first Muslim to serve on a federal appeals court? Why has that been stalled?
A deal among the is very well qualified. He's a longtime partner at a very prestigious and tourisfic firm in New York, and he has done an enormous amount of
pro bono work, especially involving religious freedom. But the Republican senators on the committee and off the committee basically attacked him and asked him many questions, most of which were improper during his hearing, and two Democratic senators from Nevada have said that law enforcement officials came to them and said that he had done some things that they didn't think were appropriate. So they have said so far that
they would not vote for him. That may change, it's not clear, but time is running out, and so some are suggesting that monkey stepped down. But the White House has been firm and said, you know, we're behind the nominee. It's his decision and he needs to make that decision himself.
And so far he has hung in there and had strong support from Biden, from the New Jersey senator's Booker, and Menendez and most of the Democrats, all of you know, the Democrats on the committee voted in favor of him as eleven to ten.
Menendez is out of the picture, I think while his trial is on. And then if you have two Democratic senators who won't vote for him, he can't win in the full Senate.
Unless some Republicans don't show up, and they haven't shown up recently for certain nominees. I've been watching that. Sometimes as many as eight to ten have not voted. If that were to happen, it's conceivable, but I expect McConnell will. It is very hard to have all of the GOP members there when the vote is taken, if it's taken, but so far we just have to see what's going to happen.
They're also languishing. Dana Jackson, who would become the first American Indian judge on Montana's District Court, wasn't given a hearing on Wednesday, and also the nomination of Mustafa Kasubai for the District Court for the District of Oregon. I mean, does any of this have to do with the fact that they're people of color.
Well, the GOP senators again in the committee, have questioned them in terms of ideology. For example, certainly Kasubai, I think they have accused him of being woke, if you will, and some other questions that they had. I think he'll be confirmed when the vote is finally taken. And I
agree with you about Dana Jackson from Montana. But Steve Danes is heading up the Republican Senatorial Campaign Committee and he has not returned the blue slip which is unfortunate because she's a very fine, experienced nominee and has held a number of important positions in federal and state government, and so I think hopefully he will lift that. And of course he's trying to defeat John Tester, who is
a longtime Senator from Montana. I think that may in part explain his retaining the blue slip, and he said some pretty incendiary things in his statement on the day she was nominated, So we'll see. She would be the fifth Native American woman to be appointed by Biden, which is more than half of Native Americans who have served on the federal bench in history, and she's a history maker. So of course the optimistic that he would lift at that hold.
Yeah.
I mean, roughly a quarter of federal district courts have never had a non white judge.
From what I understand, that's true, but Biden is determined to remedy that as well. For example, Jasmine June over in the Western District of Virginia had never been anybody on that court who was a person of color, and she's a Korean American and very impressive, and she overwhelmingly was confirmed to that seat, and all around the country people of color have been desegregating, if you will, a number of the district courts that have never had people of color. As article three judges.
Trump got to a point three Supreme Court justices, Bien only one, and some progressives are calling on Justice Sonya Soto Major to step down to give Biden a chance to appoint his second justice. What do you think about those calls.
I think that people have to make up their own minds about what the best thing to do is. And some people were very critical when they called. Others called for Justice Brier to step down when I don't think he was really ready to do that. So it's a very personal decision that every justice or judge has to make for himself or herself. And I understand because of what happened with Justice s Ginsberg, and so those are
the counter concerns that people have. But it's it's already pretty late, and I think Justice Soto Mayor is in relatively good health and so I think she'll continue on. So we'll just have to see. People are entitled to do whatever they want, of course, but with some respect for sitting justices.
I also want to get your input on this controversy. Over the flags outside Justice Alito's house and summer house, similar to ones carried by the January sixth rioters.
Well, I think it's unfortunate for the Court. There was already the problem of the leaked opinion and dabbs other ethical issues involving Justice Thomas and Justice Alito, and concern concern from Judiciary Chair Durbin and a number of Democrats
about losing respect for the Supreme Court. And so it seems like there are two at least two cases, the Community case and the other involving the January sixth defendants, and the question of whether, for example, Justice Alito ought to recuse and Justice Thomas as well from those cases, given the connections and given what's happened, and if you remember, they did finally agree on the Screme Court to adopt some kind of ethics code which I think mirrors twenty
eight Usc. Four fifty five, which covers conflicts of interest and speaks of appearance of a conflict, would be enough to a neutral observer. And so I think there are real questions about whether what Justices Thomasin and Alito have done that might bear on the refusal question in those two important cases. But I haven't seen any sign yet that they are inclined to do that.
It certainly doesn't look like it. Thanks so much, Carl Bes, Professor Carl Tobias of the University of Richmond Law School. And that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast Slash Law. I'm June Grosso and this is Bloomberg