What We Learned from Justice Barrett's First Arguments

professorial than one might expect from a longtime academic. Of course, Barrett is no stranger to oral arguments after her time as a judge on the Seventh Circuit and as a clerk for the late Justice Anton and Scalia. Court watchers learned a little about Barrett from her questioning. With one

exception joining me is Kimberly Strawbridge Robinson Bloomberg Law. Supreme Court reporter Kimberly explain how the first arguments are usually a chance for people to see how aggressive a new justice will be and the new dynamic on the court, and why that didn't happen with Justice Barrett right. So typically a new justice often kind of take the backseat during their first arguments you kind of lay low at the you know, and the hang of being a justice.

But we have some notable exceptions. In particular justice such Mayor and Justice Courses were very vocal in their first sittings, and they remained so on the Supreme Court bench for Justice Sparrett, those things are a little different because the court is hearing arguments remotely and instead of having this kind of script for all style or justice just just

jump in whenever they're ready. The justices are taking turns asking questions, and so we don't really know what kind of justice or what kind of question or justice Sparrett is going to be in fancy actually gets into the courtroom. Also, you missed the facial expressions that people who are actually in the room can see in body language. That's right, and some of the justices are very big on their

body language. And so the justice that comes to my mind it is justice, so you know, you can often see exactly what he's thinking about an advocates argument or about another justice is questioning right on his face. He doesn't take any precautions to really cover that at all. And of course we missed that one while on the phone. And I remember Justice course a cutting in to correct the Chief Justice and then cutting in again to correct

his correction of the Chief Justice. That's right. And so one thing that really stands out for me whenever I think about the kind of justice that Justice Courtshiches is one of these arguments from his first sitting, where as you mentioned, he interrupted the Chief Justice to correct him about which highway runs through Montana, and then later on in the argument he had to interrupt again to say that he had actually been wrong and the Chief Justice

had been right. That sticks out to me just because that's the kind of justice that Justice courses. Has been on the bench since, very self assured, willing to interject whenever he has a question. And again we didn't get to get kind of personality from Justice Sparrett, just because of the way that these arguments are taking place. What's your impression of her questions generally, Well, she seems to be very direct. She's not really showing her cars on

how she's going to rule in these cases. She is showing her cards in the sense that she wants to make it clear why she's asking a particular question of the advocate. She really wants to make sure that the advocate answers her question and has an opportunity to kind of address the things that she's been thinking about. At least that's the way it seems as an observer. She was a law professor for about fifteen years. But does she question like a law professor? For example, do we

hear a lot of hypotheticals? We do not. And so one of the other justices on the Court who was a law professor is Justice Brier, and he is known for his varied, long and involved hypotheticals. But that she's not something we've seen from Justice Sparrett so far, and not something that we saw from her while she was sitting on the Seventh Circuits for a couple of years as well. You said she doesn't really tip her hand, and I wonder if that's calm men to most new

justices on the Court. I remember thinking that Justice Kavanaugh didn't tip his hand very much during his first term on the bench. That's right. So Justice Kavanaugh was more along the lines of what we traditionally see from a new justice, somebody who kind of hunk back, laid low, didn't really to his hands, and we've seen that's really

how he's been on the bench since then. But you know, there's a saying among the justices that it takes five years to really settling into being a Spreme Court justice. So Justice Kavanaugh is still pretty new. I hadn't heard that before. Is there a reason why they settled on five? I think five is just a nice round number. I think the point is just that it takes some time to really get into the rhythm of the court and get into the rhythm of hearing cases and writing opinions

and considering what cases to come before you. It's a lot of work for a new justice. Now, there was one instance where Barrett may have tipped her hand in a case pitting religious freedom against gay rights. Barrett's signaled that she might be willing to overturn employ Division versus Smith, a thirty year old precedent written by Justice Scalia. What would you replace messwith? Would you just want to return

to Sherbert versus Verner? Yes, she did, And so one of the questions that the petitioners specifically asked in this case is for the Court to overrule what's really been a very unpopular Supreme Court decision, and she seemed open

to doing that. And of course that's important, not just because of the impact it would have on religious freedom, but also because of the implications for other precedents that she might be open to overruling things like ro versus Wade and things on a permanent action and similar more controversial issues. I've been talking to Kimberly Strawbridge Robinson Bloomberg Law,

Supreme Court reporter. President elect Joe Biden has pledged to nominate a woman of color to the Supreme Court should the opportunity arise, but he's not said anything about his choice for Solicitor General, the country's top advocate of the Supreme Court, often called the tenth Justice. The office of the Solicitor General role argues by far the most High Court cases each term and has traditionally been a springboard for female and male litigators to build Supreme Court practices.

But the Supreme Court bar is still largely made up of white males, so many female appellate litigators and progressive advocates are saying Biden should make diversity a priority in picking his solicitor general. And she was a woman for the post. I was actually surprised to learn from your piece that only one woman was ever confirmed to be Solicitor General, and she's sitting on the court right now.

That's right, there's just Elena Kagan was the first woman confirmed to the post Barbara Underwood, who is now the Solicitor General of New York Head Circuit and acting role um. But an interesting note about Justice Kagan is that her first appellate argument came as the Solicitor General arguing on behalf of the federal government in citizens. So it was a good debut. I guess Biden hasn't, as far as I know of an any hints about who we might appointed to be solicitor general. So is there like a

concerted effort to have him appoint a woman as listener general. Well, I think one of the things that's driving, uh, this push to a point a woman is that what really sees that the number of female advocates versus male advocates is really abysmal. Uh. It ranges between twelve and twenty one percent in recent terms, and it's been very low, uh recently under the Trump administration. And part of the

RAM is the office of the Solicitor General. They argue by far more cases than anyone else in the Sucreme Court, and so having a woman in that top spot, and having more women in that office in general, would raise those numbers quite a bit and could go a long way to getting some parody among advocates. Is anyone actually making a plea to Biden to a point a woman a solicitor general. I think they think that it's in line with some of the goals that he's talked about.

So we we see not only that he's looking for diversity in the Supreme Court, but in his transition team in general. As you look on their web page, and they talked a lot about how their transition team are really diverse, made up not only of you know, male and females, but of different ethnicities, races, uh, And so I think they're they're thinking that this is along what he's going to be thinking of anyway. So tell us about some of the women who are being sort of

talked up for solicitor General. Well, I think most of the people we're seeing are people who have actually had some experience in the office serving as assistance to the solicitor General. There were a number of women who right at the beginning of the Trump administration left and took a lot of good experience with them into private practice

and have been building their resumes there ever since. And uh, you know, I think court watchers think that it's probably going to be somebody with experience from the Solicitor General's Office just because the office has uh don't think the little differently under the Trump administration. And so the hope is that we'll be able to get back to some of the norms under that office under the Biden administration. What kind of norms are we talking about that were

strayed from? I think most notably um this idea of trying to jump over the federal courts of appeals and get right into the Supreme Court. Not only has the Trump administration brought many of those requests more than any other administration, but the Supreme Court has been granting a

lot of those requests. And so we saw even Justice so to Mayor right up blistering opinion to her colleagues and chiding them for allowing the Solicitor General's Office to jump over the federal courts and not allowing the system to work the way that it's intended to work. Is there one candidate or two candidates whose names sort of pop up a lot there are. I would say there are about ten kingdodates whose name uh pop up. All

would be really great. I think some of the front runners, or at least one front runner in my mind, is a partner at Mayor Brown Nicole's the Harsky she asked me on her law firm. Bio mentions that she's argue the most cases of any woman in the last decade, and she was in the Solicitor General's office for quite a long time, uh, and so she has the experience. I think that people are looking uh for the newest

SG to bring to the office. Does the Attorney General have a lot of say usually in who the solicitor general is? Yes, and so we'll probably see the Biden administration UM try to pick their attorney general and their deputy Attorney general before moving on to the solicitor general pick um. Right now in the office was being headed

by an acting Solicitor General UM. But I would expect that to change, and first you know, staff attorney in the office to take over acting while the Biden administration exist too for the top federal government lawyer in the Supreme Court. Another factor is that there have been very few solicitor generals of color over the years, there really has only been a handful. Most notably is uh Lader Justice third Good Marshal who was Solicitor General before he

sat on the bench. Um. But definitely, you know, there are a number of candidates who are both female and who are attorneys of color who would fit the bill. So uh, you know, we could see Joe Biden kind of killed two birds with one stone. I want to turn for a moment to just as Alido. Justice Alito spoke to the Federalist Society and his remarks got a lot of attention, much of it negative attention. Can you tell us a little bit about what he said that

drew attention? Well, I think for me, the thing that really when I was watching the remarks that really stuck out to me both as he was talking about the COVID restrictions and he said that they had brought upon the most limitations on our civil rights than we've ever seen before. And he went into specifics. He talked about religion, he talked about free speech, he talked about gun rights. All of these things he said were under attacks under

the under the COVID crisis. And we just to point out that he is and along with Clarence Thomas, is one of the most consistent conservative votes on the Court. He certainly is so. He's an appointee of George bush Um and has consistently been on the conservative side of issues. We've actually seen him a calling for certain cases to be brought in front of the Court so the court can overturn longstanding precedent. So it's not as if we

didn't already know that Justice Alito was conservative. Um, So it was something to see when he was talking so forcefully about issues that seemed likely to before the court. UH sometimes do thanks for being on the Bloomberg Laws show, Kimberly, that's Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson. The stakes and the Georgia Senate runoffs in January, it couldn't

be much higher. Control of the U. S. Senate. Republican senators David Purdue and Kelly Loffler are facing off against Democratic challengers John Ossoff and Raphael Warnuck. With Republicans holding a fifty to forty eight seat advantage following the general election, the GOP could have as many as fifty two seats in the next Congress. While Democrats are trying for an even split, which would give Vice President elect Kamala Harris the tie breaking vote. So what are the strategies of

the candidates and their parties? Joining me as Kyle Triggs, Dad Politics editor a Bloomberg Government Kyle. They say turnout is the key in these runoffs. What are each party's prospects of getting their voters out well the birds in male voting, I think the benefit Democrats, who historically have

done terribly in runoffs in Georgia. I'm not sure they've ever won one for a federal rate, but the fact that they can get their voters to either registered to vote and then to vote early or vote by mail before January five, I think in the big advantage for them, Whereas in the past getting all their voters to turn out on a specific day has proved not successful. UM. So the Republicans go into this with the advantage because their voters are more likely to turn out at odd

times elections. The Democrats because of the pandemic and everything that's done on this year, UM and all the male voting that we saw in the November three elections. UM, it looks like this is a toss up brakes because of that. Has there been any analysis don about why Republicans have won these runoffs in Georgia, why their voters seem more willing to come out. I'm not sure that

there has. I mean, obviously, the Democratic Coalition relies on voters who don't turn out as often as Republican voters do. And it's sort of as simple as that, UM and run off to putting place sort of to help the majority party. And so that's kind of the basis of it. The GOP, you have Perdue and Loffler aligned with President Trump, including aligned on obviously on his claims that the election is rigged. Well, it helped them or hurt them that by the time this runoff takes place, Biden will most

likely be declared the winner by the Electoral College. So how does that affect the GOP voters. Well, I think the fact that more Republicans haven't come out to congratulate President elect Joe Biden or even recognize that he is the president elect. I think it's directly related to their turnout hope in Georgia. UM, they want Trump based to be angry and to think they got robbed and to

take it out at the ballot box, frankly. And so that is why you're seeing them a line with Trump having said that they also have to gin up turn out now. UM, And so you know you'll see Leffler saying Republican parties relying on us to not only hold the Senate, but to save the country. You know, they're

putting it in really big terms. But you know, given the way the math is, Republicans have fifty seats in the Senate right now, Democrats have and so that sort of sets up a quandary for Republicans who want to be able to express to their base, you know, the urgency of this vote. They want to say Democrats would take control of the Senate by winning both seats. But when you say that, you have to con see that

President Trump has lost. And so they're struggling that. You know, they're on this weird line right now of saying President Trump hasn't lost yet and yet sort of having to concede that he has lost that they can um signify to their voters what the stakes are. Then if Democrats limbos, they will control the Senate, Chuck Schumer will control what bills come to the floor, UM, and the Republicans were the Democratic you know, radical agenda will take over. President

Trump is notoriously unpredictable. What could or might President Trump do about Georgia? I mean, might he go down there and might he tweet about it? Or is he just not interested in it at this point? Yeah, it seems his interests are very much elsewhere, um, centered more on himself. Having said that Mike Pants is heading there. There is a huge Republican fundraising operation being run by Karl Rove

which is separate from Trump. UM. But I'm not sure if we will see Trump his I think the White House said, you know it's you know, it fits in his schedule, he might go down there. That tells me he's probably not going to go down there. But we do know how much he enjoys rallies, and if there's an opportunity to get down there um and have supporters, you know, be behind him and and perhaps get a couple of wins before he leaves office, you know, maybe

we will see him down there. Two things you mentioned bring up questions for me. First, bringing outsiders Senator Marco Rubio was down there and a save our Majority rally. Do Georgians really care that much about outsiders coming in and telling them what to do. UM. Not. You know, I think just generally speaking, uh, you know, having surrogates like that come to the trail probably doesn't do a lot.

But you know, I think Marco Rubio was there for a specific reason, UM, specifically to highlight Republican rhetoric that you know, Democrats support a socialist agenda. UM. And we saw that really take hold in Miami Dade County and Marco Rubio's home state of Florida, were um. Trump arly overperformed comp to what he did in while Biden got basically the same amount of vot Hillary Clinton, and it

led to Democrats losing two House peeps down there. And so we're going to see Republicans using that line a lot in this election, UM, and then for the next two years as well. No matter what happens in George. There was a lot of outside money poured into some Senate races, for example in South Carolina where Lindsay Graham. Eventually one are we likely to see a lot of outside money being poured in here to by campaign ads

and the like. Oh yeah, I believe we've already seen more than a hundred and twenty million dollars in TV time be booked. The Democratic candidates have both reportedly brought in about forty million dollars since the election. Um, you know, the Democrats around the country, Uh, as soon as they saw Joe Biden um was winning or about you know,

about to win, or what's the race was called. Uh, it looks like their attention immediately turned to George just to try to bring along the Senate with him and help him get his agenda across. So money is pouring in, you know, in states like South Carolina where Lindsay Graham obviously was reelected. Um, I think he was reelected by ten points. And um, you know, his opponent was the first candidate ever to raise more than a million dollars. So in deep red states we saw fundraising not really

helps Democrats that much. Mitch McConnell's challenger raised you know, something like ninety million dollars and she lost by double digits as well. Um, but Georgia is a battleground state now, and so the money and the message that the money is going to be paying for um, could really make a difference. Here. Are we likely to see negative campaigning attack ads? Perhaps? Yeah, there's plenty of attack ads flying right now there. So you know the there's two different races.

Of course. Raphael Warnock is challenging Kelly Lessler, who's the appointed senator UM, and they're running for to fill the final two years UM of Johnny isaac Le term he resigned at the beginning of the year. UM. So there's ads being run against Rossael Warrener, who's UM a longtime senior pastorate at the User of Baptist Church in Atlanta,

which was Martin Luther King Jr's congregation. UM. But they're the ads are criticizing him for speaking up to the support of Jeremiah Wright, who was President Obama's controversial pastor in Chicago. UM, and then for even for working at a church twenty five years ago UM in New York. I believe UM that had invited to del Castro to speak UM. So they're they're attacking him for you know,

things like that. UM. And then John off Left, the other Democrat who's challenging David Perdue, the Republican first term senator. I think they put him his picture of next to Bernie's, Nancy Pelosi's AOCS and Chuck Schumer's you know, with the big block letters, radical agenda, So you know those types of ads, and then it's it's going both ways as well. Um. Democrats are really hitting David Perdue and Kelly Lee Leffler um for the stock sales they made shortly after the

Senate coronavirus briefing in January. So you're seeing that in both races. So looking at Kelly Loffler and I'm wondering, does she benefit from being sort of tied here to Purdue or we're going to see more of the I think one of the ads was like rich, out of touch white folks. Both of them seem like the same kind of candidate in certain ways. Does she benefit or is it a detriment to her to be tied to Purdue. Well,

that's a good question. You know, as a as a woman, you would think she might have a better chance of appealing to some suburban Republican women who maybe had been turned off by Trump but would like to support a Republican down balance. Um, So you know, it's possible that being tied to Purdue, you know, may hurt that advantage that she otherwise would have had. But you know, Purdue has been around longer, people know him more. Um, so I think it actually is an advantage to her to

be tied to him. And yeah, this sort of goes to a larger point that you know, one party is probably gonna win both of these races, and so as David perdu goes, so goes Kelly Leffler and and same for the Democrats. So we'll see. But yes, I think Warnock criticized them as a way to show that he's sort of, you know, the regular guy who's gone through the same struggles as they have, versus these two former

CEOs who are very wealthy. And you know, it's it's interesting that he sort of goes after both of them in one ad, not just Kelly Lefler who's running again worn off and off off campaign together before the general. Are they likely to do that and what's their advantage or disadvantage to being tied together? Yeah, they are likely to do that. I think they've already appeared together in

the runoff at least once. But you know the other thing is that they can spread out now across the state and so, um, being tied to each other is helpful because you have it's almost like, you know, you have another you who can go out there and talk to voters. You can be in two places at once, UM,

and so I think that's the real advantage. Raphael Warnock is obviously he's black, and so he could probably he I think Democrats are hoping can appeal to the state's large black electorate UM and really motivate them to turn out, and so that would obviously be a benefit to off off UM. I think that's sort of the those are probably the main point that are you know, that's why it's actually a good thing for them. What is the path that the Democrats see to victory in the runoff elections?

What areas are they targeting? So there are two huge suburban counties outside Atlanta that have shifted from Republican to Democratic over the last four eight years, and those are Cobb and Gwynette County. They are just northeast and northwest of Atlanta, and Gwynette County is heavily immigrant. It features a lot of you know, New Georgians, people have recently moved to the state, either from out of state or from other countries. And then you have Atlanta, zonn and

Fulton County. That's the place where I think Biden one by you know, two hundred and fifty thousand votes. So they really need to get their margins up in those two swing counties that have gone blue, and then you know, make sure their turnout is huge in Atlanta, UM. And then you also have Chasam County, which is down in the southeast of the state and that's where Savannah is UM.

That's another huge Democratic population. And then you can go over to the west where Columbus Georgia is and that's not as big of a population, but it's still heavily Democratic. And so they really need to run up their margins there because in all the rural areas everywhere else and they're gonna be losing. And the problem to Republicans is all those other rural counties are pretty low in population.

I mean, it's really all about Atlanta, but there are other gets of Democratic voters that could make the difference in a very close elections. And everything we're seeing right now is these are going to be two very close elections. Trump and Biden aren't obviously not going to be on the ballot, so they're not going to be draws. Does that affect the Republicans or the Democrats more. I guess you would just take a guess. No, you know, I think we don't just have to guess, because we can

look at when when it's happened before. Republicans did terribly around the country. The Trump voters did not turn out, and so that is the big fear among Republicans right now. But Trump not on the ballot. Well, his strongest supporters who love him more than they love the Republican Party, well they turn out or not, and that is a big question mark that could be really bad for the GOP. Thanks Kyle. That's Kyle Trigg, stat Politics Editor, Bloomberg Government.

I'm June Grosso. Thanks so much for listening, and please tune into The Bloomberg Law Show every weeknight at ten pm Eastern on Bloomberg Radio. Get the Pending Attended the Pending Pending, the ADDI