39: What Al Franken Really Thinks About Deadlock in Washington

With Donald Trump now the Republican Party's presumptive nominee for the presidency, the debate about the vacancy on the Supreme Court is ramping back up. As you may know, there's been an opening for the ninth seat on the highest court in the land ever since Associate Justice Antonin Scalia died in February, and in a nutshell, Democrats would like to fill out with Merrick Garland, picked by President Barack Obama, while Republicans believe whoever wins this year's election should get

to fill the vacancy. One of the less looked at aspects of debate, though, is how this vacancy could affect the US economy's business sector. It's sort of a weird time for the economy right now, if you hadn't noticed. Where in the middle of an election season. So business leaders are are already wondering what sorts of new regulations might come down the pike. The Federal Reserve is deciding whether to raise interest rates again in June for the

second time. And to top it all off, having a vacancy on the Supreme Court generates its own amount of uncertainty when businesses aren't quite sure how the Court will lean on different issues. So before we get too far into this, I'm going to introduce our guests. First off, we've got Senator Al Franken, the junior Democratic Senator from Minnesota.

He is a member of the Senate Judiciary Committee and presided over the confirmation votes of Supreme Court Justices Sonya Soto Mayor and Elena Kagan, and you may also remember him from his days on Saturday Night Live in the seventies and eighties. Welcome, Senator, Thank you. But when I presided over those I was in the chair presiding. It was actually a coincidence that I ended up being in the chair when both Justice son of my heir and Justice Kagan were confirmed. It was it was neat. It

was neat, you know. And I had just kind of gotten there with the son of mayor. And we've also got Greg's store here with us. Who is Bloomberg's rock star Supreme Court reporter. He has been with us since shortly after he graduated from Harvard Law. Welcome, Greg, I thank story good to be here. And I just want to say that I I asked to have the Supreme Court beat. It wasn't just given to me because it was the only thing Harvard Law school. So you were kind of like a lawyer kind of guy. I was

kind of a lawyer. That's and you're a rock star, evidently, I think I think a metaphorical I actually have no musical talent. Well, let's jump in to sort of what's going on with the Supreme Court these days and how we got here. I feel like Greg gear pretty well equipped to walk us through the path here. Well. Justice Scalia was was really a kind of a conservative icon. He was really the kind of the anchor of the courts.

Conservative wing believed in interpreting the Constitution and accordance with with the original meaning of its words, interpreted statutes very strictly, and when we're talking about business cases, very often ended up on the conservative side, corporate. But he he was. He was very often on business side. But so many Supreme Court cases don't divide along those lines. They are not the ideological cases that that we get in with,

you know, abortion, affirmative action. You know, a lot of times they'll be seven to two decisions or nine nine to nothing decisions. But it's it's fair to say he more often than not was on the business side when it was say a business versus consumer dispute. Sure. What's interesting is I hear sometimes and I've heard this in the Judiciary Committee when we've been discussing their unwillingness to

have hearings for for Garland. But I've heard um Scalia being by Republicans described as not an activist judge, and I found him very activist. Where did you find him? Activists? What? What? What areas are you thinking about? Well, for example, overturning the Voting Rights Act, This was something that I mean, my understanding of activists is a justice who will overturn uh for example, a law that passed the Senate unanimously as the Voting Rights Acted. Yes, that's the point. In

other words, I you hear very often from republic alkins. Well, um, I you know, I don't want an actor. I don't want I want to, let you know, legislative bodies to make the laws, not the court. And so I want I don't wanna, you know, I want. I don't want an activist judge. I want to judge like Justice Scalia, who had such contempt for the Senate. He said that the Congress had passed the Voting Rights Act because of its name. You remember him saying that, because I'm sorry,

because of it because of its name. Yes, because yes, in the arguments, he well to me that that was an incredibly telling remark, that he has such little regard for Congress. That Congress had virtually unanimously and it was unanimously in the Senate, or at least with no sent had voted for the Voting Rights Act, that that he voted overturned. But he said that, well, you know, with a name like the Voting Rights Act, they had to vote for it. They felt, you know, because they're stupid.

I mean, it was it was so much contempt for Congress that to me, I don't understand when some of my Republican colleagues say that he was the opposite of an activist judge. To me, he was a very activist judge, and this has been an activist court as far as I'm concerned. I want to read it in for just a second so we can get to Merrick Garland, who I think is very interesting and we'd love to hear

your thoughts on him as well. So Obama has nominated him to fill Scleeze vacancy, and it's unclear what's going to happen there. We're hearing a lot of different scenarios play out. And you've met with him, right, Yes, what were your impressions? He pretty much was what I had

been totally was. He seemed like very smart, very um a good guy, just like you know when the administration called me before his appointment or before his nomination, uh saying you know, who do you want to see or I said, I I don't have a person, but i'd like someone who after hearings that the American people would say, I want nine of those. And what I asked him about he has been he has a reputation, he's chief judge of the m d C Circuit and which is

essentially the second accord in the nation. And he has a reputation as being a consensus judge. And what I asked him about is how do you do that? How do you arrive at consensus? His approach was very sensible and very smart, and he just seems like a pretty brilliant by all um all accounts. He's a you know, Roberts said, when you disagree with him, you're in You're in bad You're not in a good position. So bipartisan appeal here, yeah, oron Hatch and or Orange Hatch had

nice things to say about him earlier. He when there was another vacancy a number of years ago, or in Hatch uh suggested Mary Garland to somebody who could get bipartisans. What I understand is he said something recently about him before Omama made his pick, and he said that if he picked someone like Garland, that would that would be good. But he's expecting the president to pick some you know, liberal progressive lefty or something. And then I think he

had to eat his words. So girl. It certainly has a reputation as a consensus builder and Senator I'm I'm interested to know, is that the kind of justice do you think we need on the Supreme Court now? And I'm sort of wondering is this plays out um. The Republicans, of course, have have said they didn't want to hold the hearing, don't want to bring up a vote, and they want to let the next president decide. Well, not necessarily.

They've also said that if the Democrat wins, a number of them have said they would consider him in the Lame Duck. So on the one hand, and I you know, we have um executive sessions in the Judiciary Committee, and during these sessions, we've had a couple of sessions that

were pretty much devoted to discussing this. And I would sit there to the whole session and listen to people, and I have my Republican colleagues come in and out, and a Republican would sit down and say, you know, the people have to decide, and so it should be the next uh next presidents. And then someone else would come in and go like, well, if the Democrat wins, I think we could take what we like Garland and

we should take him up in the Lame Duck. And and I spoke and I said, well, my question is do you guys talk to each other, because this was they and evidently they don't because it was a completely contradictory stance they were taking. One. This is a matter of principle. Let the people decide. Now. I think that people did decide when they voted for to re elect President Obama in two thousand and twelve. The Constitution is

pretty clear that the term is for four years. In February when that's when Justice Schoolly unfortunately died, scientists told us there were eleven months left in the president's term, you see. And then in the constitution is very clear that the president makes you know, we will nominate when there is a vacancy, and there was a vacancy. And then they kept citing the Biden rule or something, and the Biden rule they took a speech that Biden had

given and took it completely out of context. He had said that if Bush this was in I think October. I believe it was in June of an election year without without a vacancy at the time. What I'm interested to know from you is, um, you know, if Hillary Clinton wins in November, I know you you hope she will, should she be free to nominate somebody other than Merrick Garland. Would you rather see somebody he? I mean, he's described as a moderate. He may well become the new kind

of center justice on the Court if he's confirmed. Would you rather see somebody, um who is more like just to threat a name you've you've mentioned, Pam Carlin. Uh, somebody who is more of a kind of a more liberal, perhaps more ideological, or at least more interested in in

kind of sweeping constitutional changes. Well, I think that begs the question whether Republicans will take up the Garland a nomination if if say Hillary wins, and a number of them had said they would, and I think that, uh, some of them are making the argument that, I mean, it would be Hillary's right to she'd be the president, and would you want to see her do that? Would you want to see her use this nomination to make

more of a change on the Supreme Court? Well? I must say I really was impressed with Garland, so I wouldn't be terribly upset if she nominated him. I think he was a perfect nominee for this moment because he is a consensus builder, and I think he was actually following the Biden rule. If you listen to the Biden speech where he said if you just you, you know, if someone resigns, if someone games, he was really basically talking about adjustice gaming nos and resigning so that Bush

could then nominate someone who you know, was very right wing. Well, then he said, don't do that. We won't take that person up. But if you come to us and if that situation happens and you we come up with some kind of consensus figure, then of course we'll take him up. It seems to me that there's a lot of deliberate It's not obfuscation, it's it's kind of misrepresentation of terms and of of certainly what the Vice president said then

and again what kind of justice Scalia? Uh Scalia was So since there is so much deadlock on this issue, it seems like very likely we won't have a ninth

justice before November. Maybe I think that part of this was the you know, Member Jerry Moran at a town meeting in Kansas said he thought we should take up Judge Garland and then uh, some moneyed interests on the right threatened him and said that if he continued with that stance, they would dump about ten million dollars to primary him and so he reversed his position, and so maybe after the primary season is all over, there won't be that kind of pressure perhaps these Republicans, but I

think that it is very likely, yes, that we will not see them take up Darland. I think they'll pay a price for it. Given that, I think, I think the Republican candidates who are incumbents, who are in states like Hampshire and in Ohio may very well pay a price for that. Pennsylvania. Well, let's talk about then, how the court is operating now that there's the vacancy and it may not be filled for quite some time. Um. Greg, it's more likely that will have four four splits um.

And we've had we've had we had already, and a couple of punts, yes, including a significant punt on the Obamacare and the requirement to have contraceptive coverage. And they've also got rulings on deck or their schedule to make rulings on cases of concerning affirmative action, immigration, Puerto Rico's debt, and all of these issues touch our economy in one way or another, whether it's you know, education which it

gets income, etcetera. Um, whether it's immigration in the size of our labor force or effects on wages um or pretty goods debt, which we just had an episode about a few weeks ago on the podcast What Happens Then? How do how do business leaders know how to navigate this sort of situation where they're not really sure what's going to happen, what the what the ruling is going to be, or any any precedents that might come down.

I mean, how do how does that play out? Well, of course you could say the same thing about the political situation right now, and so much of this is tied to who the next president is, who ultimately nominates the next justice. And there are also some significant business issues where you could see the court being has been divided four to four octously be five to four with Justice Scalia and and the next justice will make a

big difference. So we can talk about things like class action law suits where uh, there was a five justice majority with Scali on the court to limit class action lawsuits. And we can talk about arbitration, arbitration, mandatory care a lot about yeah, where where the again the five majority has said we will enforce arbitration clauses between you know,

your cell phone company and consumer. Are you know, probably between employers and employees, and those are areas where I think that that I think it sounds like the Senator agrees that it could be a big difference depending on who. We've had a whole bunch of five four decisions by uh this court and usually UM, you know, when you make big decisions that, especially ones that overturned precedent, then

you usually want consensus. And so this has been I think an unusual court and and and an activist court UH in that that they've overturned a lot of precedent with five four margins, and they've done it in pretty hinky ways. As the citizens united, they decided on a question they weren't wasn't asked in the case and UH, and they did buy a five four margin. Now that it's four four, we're seeing a lot of uncertainty. And you've seen a lot of business saying we don't like this.

We'd like to see you know, seeing a lot of letter you know, a letter from two corporate business lawyers that I saw a similar letter writing and saying we don't we don't like the vacancy. Our clients are asking us about this. Internationally, it may damage the way people perceive the U S and its ability to make decisions. But that is I mean, I think it's probably the same letter like to learn thirty seven lawyers. That's that number six in my head for some reason, but um,

probably not right. But anyway, I think it's probably the same way. And you're seeing some uncertainty. Obviously when the circuits are divided. That's when things come to the Supreme Court. And then if you do a four four and either just stalemated four four or or in in this last case on the the birth control in a c A piece, actually go back and ask the circuits questions to resolve.

It's very hinky, I think, and it's and I think it creates a lot of uncertainty, and it does create a certain issue with the international business in terms of is the US reliable? You mentioned Citizens United, and you've also talked about judicial restraint overturning precedents. Would you like

to see that decision overturned? And is it important to you that Yeah, I think I think, uh, most of the activism to overturn it at this point, I don't think so, because I think it was a very improper, uh use of judicial activism then and Also, you'll remember that Kennedy in his in his majority opinion, said that this is great because now we'll have this disclosure happening because of the Internet. We'll have this disclose, immediate disclosure

of who's giving money to what. Well, of course we don't have disclosure, so the way he envisioned it was with disclosure, and there's no disclosure. We had a vote several years ago where we this is when we had fifty nine Democrats and um forty one Republicans and it was skins and shirts on this folte. We we had to disclose that where you could disclose where you would have to disclose people gave money to these packs would have the disclose, and and every Republican vote to vote

against it. I want to take a quick break, and when we come back, we'll go into some more questions about the court. I'm particularly interested to know whether there is any good that can come out of just having eight justices on the court after we come back from this break. All right, so we are back, and I want to pick up right where we left off the good that can come out of having just eight justices. It's a contrarian opinion, Greg, what's the good. What can

come out of this it's good? Well, they're not doing a whole lot of bad things, are they. The absence of bad is by definition good. I think the the argument is that, um, they are having to compromise more by the nature of of a justice is the fear of a four four split. They are deciding things narrowly. You know, one of the Garland said about how he gets consensus is decided narrowly. Yeah, yeah, I mean in one example this is this is not the siding narrowly,

but rather not deciding at all. There was there was a case one of the four four is I suspect you're happy about. That is a case involving public sector unions and whether workers have a constitutional right to say we're not going to pay fees to help support the

collective bargaining. And I think all all of us who covered the court a lot of other people thought the court was gonna say five to four there is a constitutional right there, and it would have been a ruling that would have really changed the change the rules for public sector unions. Instead, the court uh divides four to four and they leave the law in place where workers in In about twenty some odd states, uh can be

required to pay those fees. So there was a case labor union fees, yes, um, and this is just public sector workers that we're talking about. But there was a case where, um, by only having eight justices, they didn't do something that would have been a really a you know, a major, a major shift in this country. It would have been it would have been again another five for

big decision, overturning precedent. It would have been another activist decision. Uh. So I think that, Uh, yeah, I think there was As you know, basically, these unions do the bargaining even if you don't belong to the union, and UM, we're you know, collecting fees from uh the employees that they

were bargaining on behalf of. And the uh you know, court, if if Scalley had been there, probably would have ruled that they can't do that, that the union can't collect fees for bargaining on behalf of these people even though they are the beneficiary of the bargaining. I could probably take off a whole long list of decisions that I think you probably disagree with over the past ten years or so that were decided five to four, and I suspect you would have been happier to have those be

four to four. The Voting Rights Act as one example. I mean, most of the big decisions of the Roberts Court, when we think about the conservative decisions that they have issued, there are by and larger, perhaps even entirely five to

four rulings. Yeah. And I think that was one of my my problems with it, which is when you do overturn precedent, I think you've got to be very careful, and to do it on five four basis something as big as cusins united something is some of the decisions on the Voting Rights Act we mentioned, but also on our arbitration on class actions and arbitration overriding the States. On that, I think we're very again activist pro business decisions.

And Greg, you were telling me when we were sort of preparing for the show that the broader history of the Supreme Court, would you say that it leans more towards I guess pro business over the grand scheme of things or yeah. I think if you just look at using as as a kind of a convenient metric, the cases where the Chamber of Commerce has filed a brief as sort of a proxy for our case. You know, a business case where businesses on one side. This is

the US Chamber of Right. Business has won over the past, you know, the time I've been covering the court, the past fifty and twenty years, they have certainly one uh more cases than they have lost. Maybe you know, close to two thirds of them I think is roughly probably probably the number, So that is fair. But not all of those have been five to four um those are

it can be seven to two decisions. And there's actually one category of decisions that I find fascinating because Justice Slee is on the side you wouldn't expect them to be on, which is uh. About ten years ago, limiting punitive damages was a very big constitutional issue, and the Court was willing to put some limits on it. But the justices who said, no, the Constitution doesn't provide any limits were actually the justices we think about as being on either end of the spectrum. So you had Justice

Ginsberg who said no, constitution doesn't put any limits. But also Justice is Thomas and Scalia, And so there's a case where at least in that particular issue, the next justice may actually make the Court a little more favorable to business. If he or she believes that the Constitution does provide some limits on punitive damages. How does all this play out? We know Trump came out with his list of nominees and on it it was pretty I

read your story. You said it was sort of pretty by the book in terms of not stepping too far out of the conservative box. Off five of them were those also suggested I guess by the Heritage Foundation. Um, oh boy, So, I mean, what if we get a president Trump? What what happens? Greg? I'm gonna have Greg play a little bit of a Devil's advocate with you on this one. Well, you know, if you look at this list, you know, as I said, it is somebody

who would be you would expect from a Republican president. Now, Donald Trump has also said, oh, it's just a guide, and then that night he put out a tweet saying my list was very well received and I may actually put more people on the list. So, um, you know, I'm not sure exactly point one at a time. I haven't had a chance to. Okay, I think that's a

good first question if you get an interview. So I think I think there are a lot of conservatives who care very much about the Supreme Court who are not

fully confident. But that said, I think it is certainly fair to assume that um or or or likely that he is not going to shift the court significantly from where it was with Justice scale on it that whoever he nominates will on uh, certainly be to the right of who we would expect Hillary Clinton or Bernie Sanders to nominate, and highly likely to be to the right

of of Merrick Garland as well. Yeah, I mean you're you're assuming, of course, that my Republican colleagues don't well, if say Hillary wins, that they won't go with Garland. But then then the Hillary wins, Trump wouldn't win. So never mind, I should say that Judge Garland, you know, but I will I will say this about that list. He was just trying to unite the party, like putting out a list that you know, conservatives will go like,

oh okay, those are I like those guys. You know, I don't think that you know, that was a pretty uh you know, that's telling put a list together for

me that will accomplish that. Red State put out an argument a few weeks ago that's sort of along the lines of I think what you seem to be hearing from some Republicans, which is Republicans should just go ahead and phil the vacan see because it's more likely that Hillary will win than Trump, and she may nominate someone who's much more liberal than to go ahead and confirmers excuse me, yes, you could go ahead and suld go ahead, confirm any thoughts on this from from either of you.

Do you think that's something that they're mulling right now, Senator, Well, you know, I think what they're mulling literally is election. Hillary wins. Hearings Garland literally, I mean, as bad as that looks in a way, the election is over. I think that there is a real respect for Garland and almost an affection for him. You know, one of the first Republican senators who agreed to meet with Garland it

was Jim Inhoff. And that's because of that Garland was the prosecutor in the Oklahoma City case, and that he has stayed in touch with the families of those were killed at Oklahoma City and he's kind of revered there and so, um, this guy is kind of an extraordinary guy. So I think that that play, you know, may very well make sense that they could go, Okay, we lost

the election. Hillary will probably appoint someone more to the left. Also, we hopefully got our butts handed to us the other day, and there's gonna be a lot more and maybe the Democrats take over the Senate. Yeah that's what. Yeah, that's what I was saying. Hopefully, you know, That's why I said hopefully, and I hope that happens. Uh So they may actually bring up Garland and then we'd have to do a gut check and see, uh you know, and I actually think Obama would be okay with that. I

don't know where Hillary would be on that. How do we get out of this, this this box that we're in with these nominations they have, and we can of go back and point fingers as to who who's at fault. But we're in a in a world where Supreme Court nominations have become so partisan and increasingly it seems like

they are looked upon as a zero sum game. And the way you describe your your view of how the Republicans are acting, it sounds like you think they are perceiving this in that same way where where if if they get to the point where they say, oh, you know, Merrick Garland is you know, the best we can do at this point, then we'll go ahead and confirm him. But how do memory because I think what this does is undermine their respect for the court because it's approval

ratings to the extent they matter. Have have you know, plummeted plummeted along with with you know, those of Congress and other institutions. Yeah, Well, I think there's been sort of an assault on legitimacy of government for a long long time. We saw that, you know, with ging Rich, and we've seen that with the Tea Party. And I think that the Republican Party has sort of created Trump in a way. Um made a bargain and I think

that's this is what you get. And I think it has been partly an assault at the legitimacy of the government, you know, including threatening to default on our debt. Trump's Trump's saying that he says a couple of things. One, you can bargain with our creditors, and that us presentably as people who who hold bonds. So I don't know how they would would bargain with me. I don't know where I'd be in on that. And which is a that's not good for business. I can tell you that

I don't. I'm on Bloomberg. I think Bloomberg would agree that's not good. And then there was the other thing. I said, we can't the fall because we print money, which is kind of crazy. So this is who who the Republican nominee is. And I think that this has been a process of uh playing foot see with people who don't believe that the government has a legitimate role to play. Well, I we're going to wrap up, but I would probably lose my journalist card if I didn't

ask this question. Are you being considered by Hillary Hillary Clinton's campaign for vice president? Is that something you'd be interested in? I really enjoy my job with representing the people of Minnesota, and I am gonna work very hard for Hillary, going around country for her. I, um, I don't. I think that's just conjecture and I I don't think that's going to happen. I guess we'll see, all right,

anything as possible. I'll make you bet how much well you mean one of the odds, because I'll bet you a thousand bucks. I mean, I mean, you're on one side of this bargain. Is it doesn't seem very fair for me. Yeah, it's very unfair, isn't it. Thank you, Tori, thank you, thank you Greg. That's it for today's show. Benchmark will be back next week, and until then, you can find us on the Bloomberg Terminal and Bloomberg dot com,

as well as on iTunes, pocket casts, and Stitcher. While you're there, take a minute to rate and review the show so more listeners can find us and recommend us to a friend. If you like us, also let us know what you thought of the show via Twitter. I'm at Tori stillwell, and our guests are also on Twitter at at sin Franken and at Greg's store. Also, if you'd like to email our producer, he is at a McCabe mc c a b e at Bloomberg dot net.

And if you enjoyed our show, you may also want to check out Odd Lots, a podcast about the twists and turns of financial markets, posted by my colleagues Joe Wisenthal and Tracy Alloway. See you next week.