issue a landmark wrong in a decision. [laughter] ron had an office in my view but perhaps that shows what an exceptional lawyer he is to ecure it. what an exceptional lawyer neil is to secure it. since january neil argued in two of the terms' most important cases. the voting right case involving the district and in another case involving a novel constitutional argument involving convicted felons and access to post-conviction to dna evidence. last, but certainly not least, michael carbon. he is currently a partner in the law firm of joan's day where he specializes in constitutional appellate civil rights and civil litigation in the federal courts. he's argued several landmark cases including a dispute in the apportionment of seats in the u.s. house of representatives. before his private practice, mike served in the u.s. department of justice as

principle deputy assistant attorney general in the office of legal council and of relevance for some of the cases this term as deputy assistant attorney general in the civil rights division. one of his other notable appearances was before the florida supreme court in the leadup to the bush v. gore case. i should add that miguel estrada who completed the argument in that historic case, but mike has participated in several high-profile cases involving voting rights act in other apportionment issues including filing a brief in this year's case challenging the constitutionality of the provisions, for abbey thernstrom and others. mike is also a return guest and several people in the audience will know how shy and understated he is, so hopefully you all will help encourage him

to tell us when he really thinks about the cases this term and other matters that may affect the court next term. with no further ado, let's start with miguel. >> thank you for having me. i was going to start out when you made the very kind remark by responding that you have now ensured that my wife will take out a contract on your life, but i'll let that go. please, i'll start with three cases that make you think sometimes that you're not quite sure if the supreme court is actually running a court or, you know, the line, the tv lineup for the network. let's start with fox, fcc with the weighty issue with the court is the extent to which a no-name starlet can go on national

television and say the "f" and the "s" word. it used to be the rule for many, many, many years as the court got into these issues that you cannot use indecent language if you use the "f" word or the "s" word as mr. cheney made on the floor of the senate. you would not understand that the vice president was inviting -- and if that was indecent because as the fcc used to say this was only used as an intensifier than literally a description of sex or an activity. this change, i could not make my government up, okay? this is -- this change earlier in the decade when the fcc concluded that any and all words

of the f word or s word were indecent only to be said by their own assessment of the context. that got to the supreme court on the clear point of administrative law as to whether the fcc had enough grounds for flipping its definition and the court rheaumed for the fcc. what was interesting about the case is if you count nos, it is clear that the government will lose the next round on first amendment grounding with going so far as to say that he is -- and i'm sure people here will be shocked by this that he is now willing to overrule the whole rest of cases that have come up with different standards for television broadcasting than they're currently applied to newspapers and cable networks.

>> the next -- that's the 7:00 p.m. slot in the television and then we move on to the pot boiler which is the case that has to do with whether you are the ceo of a company that has a very important case in the west virginia supreme court. you can devote your efforts to having one person that you would like to be on the court because you think he might vote for you and actually be on the court and having that person be elected after you raise a good $3 million. this is more than jon grisham, on that set of facts. the case is the supreme court and 5-4 with justice kennedy in the majority with the people that are usually considered the liberal wing of the court with him. the court found that this was too much to stomach and there was a violation of due process because the litigant wasn't sure

of the impartiality of the court. it's the type of thing that makious think, joe, this really does make me queasy, is the constitution the best way to deal with these questions and the members of the minority led by the chief justice had a list of 40 question which is may prove difficult to answer for the lower courts as we move forward as to what happens next. sure, you might think this case is easy, but there are any number of things that come up afterwards as to where you go from here and finally for the tear jerker, that's the 9:00 p.m. slot in the television is why there is levin. this is a very tragic case of an accomplished musician who lost her forearm, as i was told, of having acquired gangrene when a drug was injected through what's

called the i.v. push method. what's significant again it was 6- because justice thomas is willing to cast a whole preemption for the proposition that even though the label and the drug had been approved by the fda and ordinarily it would be very difficult for the drug manufacturer to change it that that was not a defense when she sawed sued the manufacturer in state court and effectively you could have a jury in the position of coming up with the additional warnings that also have been put on the label that the fda didn't think of asking the manufacturer to actually put on the label. this case is significant. it was a headline case.

it was very important for the business community which, when it's convenient finds that there's a lot to be said for the federal state balance, and it just points to a great deal of instability going forward in the preemption doctrine of the supreme court. there are many ways in which this case cannot reasonably be distinguished from the gire case which was some years ago and involved car safety, and that's going to be a very important area going forward. we don't know how the new justice will affect it? we don't know how it will affect it now that justice thomas is on the team given the leeway to the states in this area. that's all i have. >> on time. >> i'm watching the clock. >> good. good. neil? >> i want to begin by thanking todd and the heritage foundation for having me here.

i'm privileged here. you heard miguel was assistant general of 1992 to 1997 and in 1994 a young law student walked him and had him as his boss and that was me and miguel was an incredible boss. i don't know how he means that. >> i mean that. i mean that in giving the feed welcome back criticism and the really formative year. one thing stuck. i remember, miguel, who should i work for after i grad wait and he said one name, john g. roberts, g. for god and that was in private practice and i'm privileged to be here on the panel. part of my privilege as representative of the government is to not make any news so i won't make any news today. i'm talking to my personal capacity and maybe talking about a couple of supreme court cases, and i want to give you all for those that aren't familiar and

the word for the solicitor general's office and the united states before the supreme court. our office is very small. it's just 21 lawyers, but we're involved in roughly two-thirds of the cases of the supreme court and are arguing on virtually every day that the court is sitting. there's a great premium in our office placed on stability. we don't really change positions much from one administration to the next and unlike other parts of the justice department in which you have all of the deputies being so-called political deputies that is appointed by the president. in our office the majority of the deputies are career deputies and the one with the least experience, the supreme court has argued something like 60 supreme court cases. so that's not to say we don't ever think of a physician in a different way. we had the case of savannah redding this year. the 13-year-old girl who was strip searched for ibuprofen and

traditionally the justice department because our main -- one of our main institutional interests is representing the thousands of prosecutors who serve in our ranks. we generally come out on the side of not finding fourth amendment violations in the supreme court and there's only been one other instance in which i filed a brief statement which was a fourth amendment violation and here i did, we looked at the case and we thought this does go beyond the pail of what the fourth amendment permits. having said that we said the court should grant qualified immunity to the individual school officials who engaged in the search and that is what the court did on an 8-1 decision. it's a personal change for me being in the office in a number of ways. when i was doing these cases on my own with phil and others who are basically a bunch of students and brag tag team of people, i would do the table of authorities and contents myself. by the way, i never argued the med i en. i had nothing to do with that

decision. i argued hamdan with the guantanamo military tribunal, but medillen they had real lawyers and hamdan got stuck with me. our office, on a very small budget and the solicitor general's office and the office of $10 million a year were involved in all these cases and that is a budget that is in private practice that can spend on one case. this is what we do in a year and it's -- yeah. so it's a really quite remarkable thing -- >> it's what you charge for a case. . so it is really -- i think it's a very good dollar value in d.c. with that in mind, let me talk about two cases, the first is the voting rights case which i had the privilege of arguing in the last term in northwest austin. this is a case about the 1965 voting rights act preclearance provision and five of the voting rights act that for certain

jurisdictions if they want to change their voting practices, they need to get preclearance from the justice department and from a federal court to do so. this has been a landmark provision in the civil rights laws and there's obviously debate although it should be retained and i think both sides before the court and in both sides on the court recognize the historic importance of the preclearance provisions and the success we have in franchising millions of voters. northwest austin, the small municipal utility district challenged the voting rights pre-clearance provision and it's straight beyond congress and powers under the 14th and 15th amendment and arguing a statutory argument that even if the court weren't to decide the constitutional question they should find a way for the small utility district to be exempt from the pre-clearance

requirements to seek a bailout and be outside of having to be pre-clearance for every voting change that they make. the decision came to the supreme court with a very strong court of appeals decision behind it. 121 pages written by judge tadel. they came to the court with a very extensive record in congress. they'd been reauthorized four times, most recently in 2006 after 21 different hearings spanning over ten months and with the 16,000-page or so record and it was something that the senate had voted unanimously to affirm the voting rights act and the house of quite similar and it was signed into law by president george w. bush. when the case came to the court i think many people thought this would be an occasion for the court to make a great constitutional pronouncement about the kind of reach of congress' powers.

instead the supreme court said that the bailout provisions should be read in order to permit this district to bail out. i think that was a very tough argument on the statute. i think for the court to do. i think the statute defines those who can bail out a certain way and the court basically had to engage in creative re-writing of the statute in order to reach that result, and that might be the right result and one debate and that will be all we'll be having in the next year is whether or not in a multi-member court fidelity to principle is the most important characteristic. if it were, i think your answer for who the leading just oits supreme court is right now is very simple and it's justice thomas who stakes out in that case and in many other cases this term and others the clear, consistent position that is unmuted by kind of other considerations including getting other justices to go along with his position. chief justice roberts took a

very different position in the case in which he built a consensus. this was what he was prof sized to do at his confirmation hearings and this was a ringing endorsement of those who thought he might do so. maybe in my next set of remarks i'll talk about osbourne versus alaska because i'm out of time. thank you. >> mike? >> thanks. i'd like to peculiar up on the civil rights cases and not only the northwest case that neil just chatted about, but there were two others and one was the ricci case involved in the new haven firefighters that's gotten an awful lot of attention on this because judge sotomayor then on the second circuit and still on the second circuit upheld what new haven had done that said we don't have enough african-americans that passed the test in a way that would reasonably promoted to firefighters. we'll scrap the test and therefore disable all of the white and hispanic firefighters who werel ij for promotion. there's another case that's very important that hasn't gotten any media attention called the

bartlett commission which involved section two of the voting rights act and basically i'll describe these cases individually, but the main point i'd like to make today is there seems to be a consistent theme in this case, reflecting, in my view, the fundamental tension and dilemma in civil rights law for the last 20 years. and that is a conflict between a number of civil rights statutes that have the desperate impact test and the constitution's requirement that you can't disfavor anybody on the basis of race or not. i'll take a step back to explain what i mean. an effects test essentially means even if you have completely neutral motives never consider race, and if you have a high school diploma requirement that has this impact on african-americans and hispanics that is illegal under title 7 and there are similar provisions in the voting rights act which have a discriminatory results and the election schemes that's illegal even if you had no intent to disadvantage minorities.

the basic point, i think that the media tends to miss and scholars tend to miss is they think both the intent test, you can't discriminate intentionally on the basis of race and the effects test are two different ways of rooting out discrimination of the effects test being a more muscular version of an anti-discrimination principle. in reality the effects test is a mandate for discrimination against non-minorities. i think as justice scalia pointed out in 1989 when they were involved in title 7, an effects test is in effect, a quote or requirement. if you say that you need to hire -- it's illegal to hire fewer blacks than there is in the proportion in the relevant workforce or in the neighborhood, let's call it 30% for discussion sake. if you have 30% or higher that's a requirement that you engage in representational quotas. you hire or promote 30% blacks.

that's a pure effects test. if you didn't have an excuse on behalf of the employer or the government that said, okay, we're presumptively illegal to not have 30% blacks and we have some justification for why we did engage in this quota hiring and the fight over the quota in the last 15 years has been an effort since they understand -- >> pull the microphone. >> for the c-span audience, we want them to hear all of your brilliance. >> there you go. since you've made the justification standard incredibly demanding like business necessity, then in essence, you've mandated quotas unless you have a compelling government interest not to do it. if you've made the justification relatively weak, is it a reasonable thing that the employer did, then the employer would have a lot more discretion not to engage in the quota of hiring and not to discriminate against non-minority. so the debate and the congress got involved with the '91 civil rights act is how tough a just

tication can you do this, can you impose on people and how much is there between the esh effects test and the standard. ricci engaged in sort of a classic thing that public employers do all of the time. our numbers don't look right. we haven't met our goal and quota so we'll scrap the test and start all over again. when the court grappled with this issue, they had sort of two polar opposite justification -- rationales in front of them. the firefighters were arguinging, look, no matter how bad the impact and no matter how justified what the employers do, it's never a justification for them to intentionally discriminate with rich and i other hispanic firefighters just because you want to avoid an impact test and the court said no, there are certain circumstances that you can do it. the justice department and the descenter said the employers want to do it, let them do it. we'll call it a good faith belief and it's a meaningless

test and the court quite rightly said for justice kennedy, that's a de facto quota. they understood that these effects tests are a de facto quota requirement so they came up with the middle ground in the affirmative case chess is the substantial basis in evidence and the strong basis in evidence for thinking that their desperate impact is illegal and if they do, then you can engage in race-conscious efforts to, quote, cure the problem. you know, obviously, they're still trying to straddle the tension between the test with these sorts of things. the point i'd like to make here is they imported the constitutional standard into title 7. so the point is now that private employers also have to engage in a strong basis in evidence in terms to justify this sort of thing. no more sort of gratuitous feel good diversity efforts where we'll boost our numbers. we have to have some strong basis in evidence that you

didn't engage in those race-conscious activities, we would face title 7 liability against non-minorities and the other case in which we came up with is clearly the bartlett case which is a complicated thing and i'm not going to have time to describe the basic presence of it, but the gist of it was that the people arguing in favor of the broader interpretation of the results test under section two lost in front of the court and the reason the court gave for their loss was even if this is a district where a minority could win the lech, if they were either 30 to 35% of the relevant district, that doesn't give them any entitlement to winning the election, because it doesn't guarantee minorities that it will win the election and what it guarantees them is they'll have equal to other groups and no other group in society 30 to 35% of the electorate can expect

to win the election and the other point they made was if you expand section two in this way, you will inject race into every redistricting effort made by local and state governments and that is something that creates this incredible tension with the shoreline of case chess say you really can't engage in pure race-based redistricting. going forward, justice kennedy's consistent theme throughout every one of the last voting rights cases has been there is this inexorable tension that i was describing between this notion with what the justice department was imposing under section 5 and maximizing minority representation and the same result under section 2 and the constitution's command of colorblindness. i think i know i don't have time to discuss the case that neil discussed before, but the northwest austin case i thought was a clear signal to congress that they've got to reform section 5 or at least five of

the justices are going to strike it down in the years to come, principally or at least partially because of this dilemma i've been talking about where the statutes are mandating that the relevant governmental authorities include race and all their voting and employment decisions and constitution is trying to extricate those racial considerations. >> thank you all. lawyers staying relatively under or relatively on time. i won't take their time. we've agreed to at least one, probably two comment periods before we recognize audience questions, and i'm happy to be corrected by neil about which landmark wrong-headed decision he argued. it was the one that maybe is more con sequentially wrong that set the stage for the wrong headedness. so with that, we'll go back to -- >> should i respond to that? >> i'll give -- we'll give you an extra 30 seconds, but let's start with miguel, if you don't mind. >> well, i -- i -- i just don't

know where to begin. i mean, it does seem to me, i tend to agree with neil that what the court did in the section 5 case whether you being get out of the preclearance requirement was very difficult to justify. and the court, i think, recognized that and i think that goes to show that the court said you do have to have the southern states under the supervision of the justice department as you get decades and decades away from the forms of discrimination and as you get to the state side of the federal state balance and that becomes harder and harder to justify and i have, you know, i have no doubt that congress will do nothing about this, but this is a sign. the court is telling the congress you get one shot and

you better fix this because it ain't going to fly and i'm confident that there is nobody in the hill that will say let's take the constitutional role and look at this and see if we can come up with a more tailored approach and therefore the writing is essentially on the wall that that will fall on the next challenge that congress has done nothing. on the ricci case i tend to agree with mike. i find it hard to understand how this is a closed question. i mean, i understand the point that there has been discrimination in the past which, of course, you know, which is a compelling one, but in so far as nobody claimed that it was actually a remedy for actual discrimination that had occurred. the notion that you're going to take individual members of the public of any race to single them out on the basis of the

race was really troublesome, and if any of you have had time to read what justice alito had to say in his concurring opinion which was joined by two of the justices, this was not only troublesome, it was just ugly, ugly, ugly. if you get into what was going on in the new haven government about this is this it ran racial politics and vindictiveness and ugliness and one of the sad things is that they could be from the supreme court of the united states. >> a whole extra minute. >> so on the -- i appreciate the comments by both folks on this. i guess i tend to disagree a little bit, miguel. i don't read the court as saying that in 1965 it was appropriate to cover southern states and now it may not be because after all, the remedy that they dealt with that they provided in the case

was not to give a remedy to southern states like georgia and others covered by the act, but to give it to the little individual districts. what was animating the court's decision was the fear that there was a worry that the voting rights act had been expanded not to cover the states when they do say redistricting decisions or things like that, but rather it had been extended through court decisions to cover even these little tiny, itty-bitty utility districts or school boards or things like that, and if it is going cover them the court said if it is going to get out of the voting right it is act and if they have no history of discrimination. i think it is rather hard to read into that something with what the court is saying with respect to the future and whether they'll strike it down and for similar reasons i'll say that to mike and they've done powerful, important work and demonstrating in a variety of areas that the commitment to

equality under the law, his intention ultimately with his effects test and it's something that is gnawflawed, but it does give any indication that they're troubled by the equality concerns that mike is raising as well as the question of whether or not congress has power under the 14th and 15th amendments to enact this law and on that, i think, we'll have to see what happens. i think it's a very open question. i think it would be hard to read into the eight-justice majority. something that says they'll strike it down and it would be hard, after all, the founders and the 14th and 15th amendments gave explicit textural commitments to congress to enforce the meaning of the amendments through appropriate legislation and they have a clear, textural warrant and they have historical evidence from

the original evidence at that time that will, i think, make it tough for the court. i'm not saying it's impossible, but i think it's a very difficult question. one last thing about the effects test that mike was talking about. mike said they would inexorably become a quote or requirement. i'm not sure that's all right. one can envision job qualifications that have nothing whatsoever to do with merit. you can say, for example, deputy solicitor generals must, in order to get the job, bench press 150 pounds. that has nothing to do with what we do. if that were a requirement it would have a disproportionate effect on women, but it would be illegal for that reason. that isn't a quota requirement. that is simply an underlying view in merit and i understand that sometimes those effects tests go off the rail and do defend into the stuff that mike was talking about and the core to some of the effects doctrine which is simply about something

i believe and most people in this room believe in which is plain old-fashioned perity in making sure the tests actually measure the proper skills for the job. >> let me respond first on the northwest case. look, i want to agree up front with neil. i don't think this tension between the effects test and the non-discrimination mandate of the constitution was underlying what was going on in northwest austin. i'll come back to that. i will point out, though, that each though it wasn't presented in the case the court went out of its way to sort of make this point. they said that, quoting again, justice kennedy, race cannot be the predominant factor in redistricting miller v. johnson, yet considerations of race that would go to the 14th amendment or section 2 would save it under section 5. so my basic point is it wasn't the central issue, but there is this tension between section 5's effects test and what went on in the constitution. a point that wasn't noted in the

court's opinion and that will become prominent when i bring the next challenge was the point we made in our amicus brief which is unbelievably enough in 2006, they didn't just continue ret choirments of section 5, they said no, what we had done in mississippi in 1965 really isn't enough to cabin the incredible racism of these coverage jurisdictions in 2006. things have gotten so much worse in the 1960s, so we're going actually ratchet up the standard and we changed the law to say there could be no diminution in the ability of minorities to elect their candidate of choice, meaning, of course, you have to draw every district in a way that ensures, as best you can, that the minorities preferred candidate of choice will be elected. coincidentally outside of dade county that will always be a democratic candidate. so the court is now going to be confronted with a situation where they didn't just perpetuate the status quo. they actually made the status

quo worse, and that's very important because this case may not get back up into the court until after the next redistricting cycle and the justice department will be -- have a huge sort of damocles hanging over its heard in terms of how race conscious they are in section 5. they're the principle forces of section 5 and in the '90s they engaged in a straightforward maximization requirement that the court consistently struck down both in statutory cases and in the shoreline of cases. what did bother them in the northwest austin case and why it is not entirely right that the congress can never fix it. first of all, neil correctly says they went off on the statutory question, but they also devoted four pages to discussing the constitutional issues. if you're a minimalist and you think something vile eights the statute why would you reach the constitutional question? >> right? >> the reason you have it before

constitution is because you don't have to wade into all of these areas and you have a voluntary choice by the court to discuss the serious constitutional questions involving section 5, and i think that that was not in any way unintentional, and what they said was there's two basic problems with extending this absurd statute which served an obvious purpose in the 60s and the 70s in terms of creating voter equality, but now that it's morphed into this situation where you're requiring proportional representation for a representative and the biggest problem is you can't show that the situation in georgia or the other coverage jurisdictions is worse than in the jurisdictions that are not covered by section 5 like arkansas or these other things. how can congress fix that problem? they have to change a formula which i want to emphasize was based in 1968 and 1972.

what rational person. it's as if congress in 1965 said we need to divvy up the united states and find the bad states and the good states. so we're going to go look at the fdr hoover results from 1928 or 1932. no rational person did this. why did they engage in this absurd situation where they looked at a 40-year-old election results because no congressman with the possible exception of john murtha is going to say i've got a lot of races in my district and you really should cover us and let georgia off the hook. so congress is never going to redefine the formula and every objective measure of racial equality from registration to minority represents shows that the coverage jurisdictions have no worse situation than the uncovered jurisdiction and that was not rational enforcement of the 14th or 15th amendment. >> either that or they ran out of time like we are. >> this this -- i suppose the

next round instead of teasing our guests kind enough to come over his victories, i want to focus the pan ole a point he made in the opening remarks that justice thomas seems to be the lone most principled justice and we had a lot of talk in the confirmation hearings for judge sotomayor over different conceptions of what the rule of law is and what law is to those who are texturalists and originalists that the approach thomas is taking is the principle one and the others are doing something else or at least sometimes doing something else of politics -- or what are they doing these days? what is the roberts' court. it's gelled now for a few years. it will get a new member next

year. are there any differentes in how it's behaved this past term? do you see any new trends? >> are you asking me? >> i'm asking all of you. >> yes and no. i think one should be very wary of drawing conclusions on the basis of a single term because the court swings one way or the other on the basis of what's in the docket and what's in the dock set to some extent, they have some choice in it for tootous and the sexton case may lead to the news of next term. in some cases, frankly, are easier than others. so i do think the court is largely -- and i would say largely a minimalist court. they tried to decide only what's needed. the section 5 case, i mean, i think i would love to take the fantasy life that neil has because if you think that you were not getting a real shove to

say these are constitutional questions and they concern us very much and they so much concern us that we are willing to do radical plastic surgery on the statutory claims and we may go on that basis, then i will lose hope for the justice department. justice thomas is very principled, but so are they. they all have different conceptions of the judicial function. many of them are very similar to each other even if they use different methodologies. i would say that i don't particularly find that everything that justice thomas does, although undoubtedly very principle side really constructive for the rule of law at large. you really cannot have a system of case law in which he is as willing as he is to discard longstanding case law from the court. people have to be able to look

at the books and see this is what the case law is. you have to rely on the court to see what has been ruled on and to my mind he's a little bit too swift to discard precedent where he was hard with an original matter and he's willing to disregard 200-plus years of constitutional law. >> you've got use a baseball a nal sgee this week. and so i think, yes, it is a very principled stand and not necessarily one that i think commends itself to me as the most consistent with the predictability of the rule of law. >> thanks, neil? >> one major difference that you may see this term as opposed to past terms to answer one of your questions is the rate of descent. in the last term, the statistics show that the average case you'd have a descent by 2.04 justices

which going back to 1995 is the highest rate of disagreement among the court in an average case. i think in, for example, the october term 2005 it was 1.23. so again, that may be a function of what cases came to the court this year and it also may suggest something about the particular dynamics on the court this year over the last term. i didn't mean to suggest that there's only one metric for being principled and that justice thomas undoubtedly meets it. i think there are a variety of different ones and that one is sticking to your guns and adhering to your consistent philosophy in case after case, it doesn't matter what your other colleagues say, i think justice thomas has the lead. there are a number of other ways miguel says maybe one other version of principle is respect for precedence, something that justice o'connor made much of. for me, i think, one thing to think about is whether or not

people are being faithful to the tradition of deference to legislatures and to congress and engaging in judicial restraint. on that model, justice briar would do quite well, the statistics would show. i guess i am a little concerned that sometimes our constitutional dialogue, and i think you heard it here with mike a moment ago when he refers to the voting rights act as a quote, absurd statute and maybe absurd is a policy matter and that is something that the congress overwhelmingly disagreed with mike in 2006 and that doesn't always make something unconstitutional and i do think that sometimes in our constitutional dialogue we're losing sight between the distinction between what is bad policy and what is unconstitutional and on this respect this is not something that has been consistent and i would like to point out what justice is outer said in his last descenting opinion which is in the dna case, and there's a

model for one way of thinking of about what a principle judge is and this is what he says. we can change our own views just so fast and a person is not a stick in the mud for refusing to endorse a claim without having some way to think through it intellectually. with the limits of experience affect the capacity of the individual to affect the legitimacy of a moral position and the broader society needs a chance to take charge in the political back and forth about a new liberty claim before it makes sense for courts to declare unsympathetic national laws arbitrary to the point of being unconstitutional, and what he's staking out there is the tradition of conservativism they think has been a bit missing in the dialogue and whether or not he consistently adhered to it or not, i think that opinion will go down as kind of allowing us to rethink some of what being a great judge is all about. >> let me begin by clarifying that i wasn't saying section 5

was an absurd statute. i almost said precisely the opposite. i said it was absurd to take a law that was a temporary emergency measure to deal with the obvious problems in the southern states in 1965, and in 2006 extend that to 2031 without updating your coverage formula, which again was analogous to using states that were problematic in 1932 to justify what you did in 1965. and that's not only absurd as a policy matter. it obviously violates the text of the constitution, which says you can enforce the 14th and 15th amendment. but section five doesn't enforce the 1th a4th and 15th amendment. it prohibits discriminatory effect and worse still, it only implies a higher standard on a certain subset of our states. it would not be rationale, congruent, or proporptional to say every state west of the mississippi has to come to

washington, d.c. on bended knee to a bunch of bureaucrats but those east of the mississippi do not, and that, since they're using a formula that has absolutely no relation to current day realities is precisely what congress did in 2006 with overwhelming republican support because republicans understood that the best thing that ever happened to their party, and i was in the midst of making this happen, was majority/minority districts because the adjacent districts were, of course, predopp namina white districts in the south. i think the principal reason for the republican gains in the '90s in the south was because of section five of the voting rights act. so, of course, being people who are interested in their own enlightened self-interest, the republicans were more supportive of continuing this section five regime than the democrats. to get back to the basic topic here, trends in the court. er every year we get all these august describes and scholars to

look at trends. it's kennedy's court. whatever justice kennedy wants, that's the trend. if the cases come up in a way that he sides with the conservatives, then it's going to be a conservative term. if it's issue he tends to side with the liberal bloc, it tends x 8%á fú fjx f)á úúá áa

as delivered so eloquently by áa judge sotomayor who said just like justice thom, no, what you do is look at the terms of the law and you apply it without favoritism to discrete insular minorities or any other group i happen to believe in. i'm very excited. i have been arguing about this for 30 years. it seems every democrat on the judiciary committee has now abandoned this nonsense about looking out for the little guy that led obama to vote against justice roberts and justice alito because they were not sufficiently sympathetic to the groups he likes in american society and have such a ringing endorsement for neutral application to the rule of law. you may call me cynical. i don't know if this will translate into the way she actually decides the cases, but i was certainly very happy to see that in terms of her articulation of her philosophy. it was very much in the justice thomas mode and very much a

rejection of the obama mode. >> a philosophical debate was certainly very interesting, but now we are going to turn to other philosophers in the audience. when i recognize you, i want you to wait for the microphone. we've got a couple of people on either side of the room, as much for our heritage.com viewers as well as the c-span audience. and please try to make your question a question. why don't we begin with -- two gentlemen right here that caught my eye first. >> is this thing on? hello? >> no. >> well, apparently not. yeah. accuracy in media. i wanted to ask you some related questions about the coalition building justice roberts has been doing in represent to the

juris prudential and political elements of what he's been doing. do you see him being a counterweight to the current regime and trying to create reaction that could re-create what happened during fdr's first few years? also do you see justice roberts taking this sort of anti-voting rights act slant towards anything more radical, like say a rejection -- thank you. >> you'll have to restate the question for the audience. let's try to get the microphone fixed while we're answering. >> i mean, there are certain assumptions in the question that i don't agree with. i mean, i think -- i don't think that he -- that he, meaning the chief justice, has an agenda on a political question. as i said earlier, i do think that what the court tends to do

term to term tends to be a function of the docket that comes to them, and i do agree with mike carvin that the outcomes tend to be those that seem legal and enlightened to justice kennedy. and so i don't know that even were he so minded, which i don't think he is, the chief justice had the capacity so implement any sort of political agenda. i do think that he is sticking with what he said at his confirmation hearings having looked at some of the sections in the section five days, which we discussed, i find it very hard to believe that any motivation other than pure modesty, the narrowest possible basis could explain the outcome in the section five days. and i ultimately don't think it is an anti-section five

motivation. i think it is a desire to see congress do its job. i mean, they are, you know, one of the sad realities of the debates over the court is of that people tend to have a great deal of respect for stair ri dee sigh sis for cases they really like and not a great deal of regard for it for those that they don't agree with. and so, i mean, i think it would be good to see the court as a whole take an even approach to the doctrine. obviously, there are cases that are no longer working and have to be discarded, but i think on the whole they tried to do a very good job of putting aside their politics and just ruling on the law, and i think that that's true of both sides of the court. >> let me just also say something about that. i mean, the thing that bothered

me the most in the coverage of the voting rights act argument afterwards was the number of journalists who said things like, well, chief justice roberts wrote memos in 1982 that was hostile to the voting rights act, and so it's not surprising that he gave the defenders of the voting rights act a hard time and stuff like that, which i just thought wassaily. th this is a man whose entire being is bound up in the supreme court. to being a justice clerk to judge rehnquist, to private practice and so on. the notion he's going to try to kind of re-enact some policy memo from 1982 into the constitutional law and supreme court decision making i think is just rather farfetched, and i think if you take that view of chief justice roberts, you might also answer the other part of your question, which is do we expect a replay of 1935 and the supreme court basically -- the

supreme court acting the way it did during fdr's legacy. i think that was a tough moment for the court, and i think people who care about the court i think will be very hesitant to replay something like that. >> okay. mike, i don't know if we got the microphone to work, but we'll relay your question. shout it out. >> michael roberts. [ inaudible ] it's possible that the court will adopt the line of cases when they do consider that question, which is a fairly rigorous review of congress' power under this congruence and proportionality test. if they do, isn't there a problem with the section two effects test as there is for section five? isn't there a problem for the sg's office because to justify

section five, they have to say, well, those jurisdictions are really different, but to justify section two and the effects test of section two, they have to say, well, there are problems everywhere and that they require congress to go beyond mere constitutional violations, which has to mean the congruence and proportionality test. >> too brilliant for me to repeat, but mike, can you begin? >> actually -- >> i'm sorry. i'm sorry. >> i'll answer for neal. >> and he'll be bound by the answer. >> and i think we'll have to conclude -- >> go ahead. >> please. >> well, you're getting into very complicated stuff. i would make two points, and i'm sure you would, neal, would clearly disagree with both. as i said, and you got to get into the minutia of the law to

understand this, the court over the last 15 years has sought to weaken the race conscious mandate of section two. it's made clear that the minority has to be 50% of the relevant population, that you don't have to draw these ugly districts, that you don't have to break county lines and break up communities of interest. what section two has been essentially reduced to from this incremental approach from the court is basically, look, if in normal circumstances you would draw a majority/minority district because it's a nice square kind of district where minorities for whatever demographic reason constitute 55% to 60% of the population, fine. but if you have to hook up this group with that group and cut through a river and over a jurisdiction, you don't have to do it. so on the one hand they have ratcheted down the race mandate consciousness of section two. they've done a very similar thing with section five. in the ashcroft and the bow

injury parrish one and two decisions, they have said essentially it is okay for jurisdictions, for example, to convert majority/minority districts into 30% to 45% district. we're not going to handcuff the jurisdictions on this front, the point i was making before congress said we don't like the ash craft decision. so we're now going to put a straight jacket back on southern jurisdiction that is wasn't present in mississippi in 1965 and say if you've got a 60% district today, you can't diminish that proportion. you've got to keep it where it is. we're also going to reempower the justice department to say if you can create a 55% zishth or a 35% district over here, we're going to say your failure to do so constitutes a discriminatory purpose. both of the things that bothered

the kout most about section five. the straight jacket on southern jurisdictions and the empowerment of bureaucrats, congress consciously reinstated in 2006. if they do get into things other than the coverage formula, if they get into the comparison of the results and effects test, like mike rossman was just saying, i think they're going to look very skeptically on what congress did in 2006 and they're going to say for that reason alone it's not congruent and proportional, and i suspect, this is an incredibly long-winded wane to your question, that they will never get to the section two dilemma that you articulated because i think they're going fob very concerned about the ramping up of section five in 2006. >> just briefly, section two and section five are really rather different. so section two is really an after the fact remedy, after something has been changed, a voting practice has been changed, you can then bring a lawsuit. section five is preclearance. it's before hand. it's a more intrusive remedy,

and it's a much greater incursion on, as the court recognize recognized, traditional notions of state sovereignty. section five's basic point is to say 60 days before an election or something like that, jurisdictions can change the requirements, and you won't have time really to get a section two lawsuit going and in place and then you'll have that person elected under that unfarrah jet stream and then they will have all the advantages of incup ban si put on them. i agree with mike entirely that the changes to section two and five in the 2006 amendments are going to be fertile areas of troduction here to our second

panel. robert alt, senior legal fellow here and deputy director for the center of legal judicial studies at the heritage foundation. it's fitting robert will host this panel because he has a journalism background in addition to his legal background. he wrote 30 columns in 28 days during a very busy time. also went to iraq in 2004 for five months to serve as a war correspondent there writing for national review and the weekly

standard. he's published articles in many journals, including "the wall street journal", the washington times," the new york post" and national review online. prior to coming back to heritage, he taught national security law, criminal law, and legislation at case western reserve university school of law in cleveland and he's also a fellow in legal and international affairs at the ash brook center for public affairs at ashland university. so robert, i will turn things over to you to introduce our second panel. >> thank you, rich. there were many questions on the hill this past week about cameras in the courtroom, and so it is appropriate that we now take up the scribe's panel highlighting a band of reporters who provide a better window in the decisions and workings in the court better than any camera could. covering the supreme court is a difficult job. the hardy few reporters who cover this beat do not obscuflem

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to separate work unit agreements. still no -- okay. you have to know kennedy versus plan administrator, a tantalizing case looking at whether a plan administrator's reliance on beneficiary's designations where a divorce decree may limit a beneficiary's rights. great and exciting cases. why did you come today? because of the tmz like coverage of strip searching teenage girls. i know, i know. i'm sure that our distinguished panel will do a better job of picking cases to highlight than i have and so i shall move to their introductions. we'll begin with lyle denniston. lyle is a legend in supreme

court reporting. he is celebrating his 59th year as a journalist and his 49th year covering the supreme court. during his extraordinary career, he has covered one in every four justices ever to sit on the supreme court. he currently reports for the indispensable scotus blog which i'm sure you're all reading. if you're not, you really should. he also reports on the court for radio station wbur in boston and for justice talking, an npr program originating in philadelphia. he is the author of "the reporter and the law: techniques of cover the courts" and is a member of the hall of fame of the society of professional journalists. our next panelist really requires no introduction. juan williams is one of america's leading journalists. he's a news analyst for npra contributing political analyst for the fox news candlhannel, as

a regular panelist on fox news sunday. he's appeared on numerous television programs including nightline, washington week in review, oprah, cnn's cross fire where he frequently served as a co-host, and capital gain sunday. the author of several books including the biography of thur goode marshall american revolutionary, as well as eyes on the prize, and enough. apropos our discussion today -- i should note he also wrote a phenomenal forward to abigail thurn strom's new book on the voting rights act, "voting rights and wrongs." he wrote for "the washington post" where he served as an editorial writer, op-ed columnist, and white house reporter. he is won an emmy. his arms have appeared in publications far too numerous to mention. last but certainly not least, we have quin hillyer. he's a multiple award winning

journalist with over a quarter century in journal iiism and politics. he's a senior editorial writer at the "washington times" a senior editor at the "american spectator" and a columnist for the "washington examiner." he has been published professionally well over 50 publications including "the wall street journal" and "the washington post" and has been recognized by "the washington post" and msnbc as one of the nation's top political prognosticators. we hope to put his skills to work for us today as we peer into the crystal ball of what may be held in the supreme court's next term. so without any further delay, let's hear from lyle. thank you. >> thank you, bob. i'm pleased to be with you today, and i'm not exactly sure

why i'm here because in todd's invitation to me, he pointed out how wrong some of my coverage on scotusblog has been, so i went looking through my wardrobe today to see if i could find a pink shirt so that i could perhaps exhibit the quality -- the ideological quality that i think he ascribes me. what i found was an orange sthirt that in some lights looks pink and so perhaps maybe that's what todd's seeing, is something that really is of a different color entirely. but in any case i'm delighted to be here. this is a fine annual program, and i'm very pleased to be a part of it. in my opening i'm going to cover just kind of quickly a smorgasbord of things rather than concentrate on particular cases. but what i want to do is to make

sure that you plan to come to next year's scholars and scribes because this coming term is going to be a really spectacular term. we're, of course, going to have the hearing that begins in september before the term begins on constitutional questions involving the campaign finance law, and there's little doubt in my mind but what the court is going to change course markedly on that. we also, ever all of these years of debating the slaughterhouse cases, we are perhaps going to confront the continuing va lidity of the slaughterhouse cases and the attempt to revitalize the privileges and immunities clause as part of the court's consideration of whether to extend the second amendment to apply to state and local government. we're also going to have mike carvin's great case, the free enterprise fund case, which has to do with the appointment power

to the accounting board that congress set up after the enron scandal. there also is going to be a very early test for judge sotomayor when the court takes up what -- the briscoe case from virginia, and in essence the court is, i think, going to be re-examining a decision of just this term of the melon dez dee as case in which the court said if the prosecution in a criminal case wants to put in evidence a lab report, the confrontation clause requires that the chemist who prepared it be made available for cross-examination during the case. the vote was 5-4, and one of the five in the majority was justice souter, who is obviously retiring and will be replaced by justice, one suspects, sotomayor. she is, i think, more

prosecution oriented than justice souter was, and i think there is a chance that the court, if it's willing to be somewhat embarrassingly bold, it may actually cast aside melendez dee as and start over in that area of the law. bob had mentioned cameras in the court there. is no real prospect, whatever arlen specter thinks to the contrary, that the court is going to allow cameras in the courtroom. one of the reasons is that i think the court within the court there is a growing concern that the public portrayal of the court would, if there were cameras, be too selective. we've heard this argument over and over again against cameras in the court, but i think what i'm hearing is a new argument which is if we allow the portrayal in the public media, particularly television, of a

particular case, do we as an institution invite greater public attention to that and make that case seem more important than some other case that doesn't get the media attention? so there are principled reasons within the court why they are unwilling to go further with opening the court. john roberts has gone all the way i think to open the court up further, particularly with his gesture in authorizing the same-day release of the written transcripts, which is enormously helpful to us in the press. let me say before my time runs completely out a word or two about justice sotomayor, and let me get at that first by saying perhaps in disagreement with other people's perception of chief justice roberts, i think the chief justice is in a hurry to establish some new principles of constitutional doctrine. i think it's very clear that the

chief justice does have an ideological agenda and is actively pursuing it, but i think he must pursue it in a hurry because once tony kennedy leaves the court, and that could be sometime during president obama's tenure, the five justice majority on which the chief justice now can more or less reliably count is going to be gone. but what i think will happen when kennedy is gone is we will see the rise of what i call a new dynamic center, and in that center perhaps taking the place of kennedy alone will be a trio of justices. i think it will be steve briar, who will be on the left of the trio, and sam alito on the right of the trio, and judge sotomayor floating somewhere between the two of them, and i think that's where the future of the court, the control of the future of the court is going to lie. let me say in conclusion one

other point, we are experiencing continuously a decline in the caseload of the court, which is most unfortunate because i think it a really precious national resource is being wasted. when the court holds only one hearing a day, as it did several days in the march sitting of this year and only decides 74 cases, which is less than half of what it was doing in the 1982 and '83, something has gone wrong. the case selection process has become seriously flawed, i think, and major, major controversies that ought to be decided by the court are being turned aside, not the least of which are a number of sequels to the kilo decision in which the court has been asked to clarify what kilo really means and the court has simply refused to do so. one suspects that what is going on a lot of the time in the

reduction in the caseload is what we insiders call defensive denials. the four justices who might want to grab a case are unsure of getting a fifth vote on the merits, and so they're not voting for grants, and i think the overall effect of this, plus some other principles and some other influences, is causing the court to do less than half of what it ought to be doing. thank you. >> juan? >> thank you. it's a pleasure to be here. thanks for the invitation. this is such an interesting session to go through. i'm not going to go forward in the way that lyle did, but simply say that despite the hot weather today, it's been a pretty mild summer here in washington with the exception of what's been going on on first street, both on the supreme court side and on the capitol hill side. first, of course, with the sharp disagreement that we've seen in the rising number of 5-4 cases.

i think it's now a third of the decision that is were issued this term. in addition, if you were to add in the 6-3 decisions, then you get up to literally half of all the cases decided this year, and, of course, you have an increasing rate of decisions being reversed from the lower courts. so you see more and more of that kind of sharp divide right now demonstrated on the court. it reminds me very clearly of what lindsey graham, the senator from south carolina, said in the course of the sotomayor hearings. that politics and elections have consequences, and i think it's had sharp consequences in terms of the recent additions to the court and sotomayor simply adds, i think, to that sharp divide as is demonstrated day in and day out on the supreme court. i might add into this more ak row moanous mix you have to throw the obama administration along with the democratic majority on the hill pressing left, including, i guess the

best example of what would be the nomination of sotomayor. while, of course, to pick up on what lyle was saying, i think justice kennedy has been adding to the strength of the conservative majority there this term, as i understand it, by the count i have seen, 11 of the 16 5-4 votes he sided with that conservative majority and just that term he was equally split between left and right. that's a critical difference in this year as to last, and i think it is a portent of the direction which the court is moving. but the thing that comes to my mind in the midst of this kind of sharper political divide as evidenced on the court is the whole issue of, therefore, political legitimacy for the court. in the hearings for nominee judge sotomayor, democratic senators have been continually attacking the roberts court, and

i found this intriguing. i think one senator said he didn't know this was a hearing about the roberts court or even about president obama to that extent, but that's what's been on the table. ijz&

a railroad in senator feinstein's mind. so to that extent the court has become much more politicized during the last term and in the course of these hearings that are concluding this week, and with justices on the left at the upper end of the age speck strum, evans at 90, ginsberg at 76. i hadn't thought about the possibility of justice kennedy calling it quits anytime soon, but it seems to me probable that president will soon are more nominees before the judiciary committee, and it's likely that they will have clear left wing instincts further sharpening the right/left divide on the court. the left wants, i don't think there's any question if you're looking to the nation's law schools right now, if you're looking at the instinct being demonstrated in people that president obama has been looking

at, seems to me that they want louder, more strong-willed voices to counter the intellectual fire power that's coming from justices roberts, scalia, thomas, and that president obama is likely to try to give that to them. so to that extent i think what we're seeing is the politics of the recent vintage going back i guess the polarizing elections of 2000, 2004. the surprising results of 2008 now come to the court and to the law. and the question is whether or not the court can really withstand this rising tide of politization. the question is not whether the justices can withstand it, because i trust the supreme court family will hold. the question is whether or not in the public mind the court has legitimacy if it becomes simply a political institution in which you can absolutely count on votes left wing and right wing

and then it simply comes down to the likes of a justice kennedy swinging to and for from one side to the other and being the sole determinant of the outcome of laws in this country. thank you. >> thanks, juan. quin. >> thank you very much. i thank heritage for including me in this. i want to associate myself with lyle's remarks about how much of a shame it is that the caseload has gone down so far. there are a number of cases that i would have liked to have seen taken that have not been taken in recent years. i'm going to back into my discussion of the court's term by starting with some very unfortunate words from judge sotomayor, not to discuss sotomayor, but to eliminate my concerns about the direction of the court. judge sotomayor has been criticized but not enough for the first half of a paper she co-wrote for the suffolk

university law review in 1996. in it she effectively endorsed an approach to the law that makes the lawen ever more rarified realm, one less and less accessible to or understandable by the general public. what she endorsed were these sentiments. sentiments i think are profoundly wrong headed and i'm quoting directly from several of her passages. quote, the public expects the law to be static and predictable. the law, however, is uncertain and responds to changing circumstances, end quote. the public instead needs and wants certainty and clarity from the law but our society would be straight jacketed were not the courts with the able assistance of lawyers constantly overhauling the law. law must be more or less impermanent, experimental, and therefore, not nicely calculable. much of the uncertainty of law is not an you be fortunate accident, it is of immense social value.

she also spoke of what she called, quote, the public myth that law can be certain and stable. in short, this is law of, by, and for the lawyers. the general public is expected just to trust that lawyers will do the right thing because the public by these lights cannot be expected to understand what's going on. i think most people would rightly object to this supposedly ideal. i'm here to tell you that not by design but de facto the supreme court this term added to the public confusion about the law and to the sense that the law is anything but certain and stable. consider what the court did with regard to what it called the, quote, principle of constitutional avoidance, as has been discussed with this northwest austin municipal case. eight justices cited that principle in order to decide the days on statutory grounds alone rather than examining the underlying constitutional issues. likewise, in the ricci versus

the firefighters case, the court decided on statutory grounds alone rather than examining constitutional questions justice scalia raised in his concur rebs. on the other hand, in citizens united, the court expressly invited further briefs on the constitutional questions in full. now, granted this wasn't really a choice between deciding statutory or constitutional grounds, but rather a choice between narrow as applied constitutional grounds versus broader con strutional grounds, but the desire of the court to further push broad constitutional questions seems to run counter in its desire to rule as narrowly as possible in the two race cases. observers can be forgiven for being confused. is this a court that holds to judicial minimalism or not? should the lawyers try to provide justice was compelling grounds for narrow rulings or for broad constitutional

pronouncements? other confusions arise in federal preemption cases as miguel estrada mentioned. i don't want to eveovergenerali because the two confusing cases involve different laws with different presumptions. however the layman might have a hard time understanding why p preemptions was allowed in one but not in the other in 2009. then there was the decision in oregon versus ice, moving to a different topic, which held that a judge may add to the effective sentence of a convict based on facts found not by the jury, but by the judge. again, the question here was in some technical way slightly different from those in a new jersey case in 2000. one can easily be justified in asserting, along with a dissent by justice scalia, that the oregon case, quote, directly

contradicts what we held eight years ago and have reaffirmed several times since. justices stevens and ginsberg though were in the majority of both the seemingly contradictory decisions. so observers again have reason to be puzzled. and i'm puzzled, too, because i happen to like the old line of cases starting with aprendy. what i'm getting at here is not to suggest that it's illegitimate for very close cases to swing on particular facts. sometimes objectively speaking those facts require a result that appear to be contradictory but actually aren't. but it is to suggest that as in the two cases on the ten commandments from 2005, the court's decisions and jurs prudential approaches can have the effect of leaving most citizens thoroughly befuddled, and sometimes that befuddlement is increased when the decisions are examples of what tom goldstein called incrementalism

or ak tu aerialism, which is what chief justice seems to be trying to achieve. the ordinary zeb can be foregiven for starting to think that courts are aware if their outcomes are not like determining how many angels can dance on a pin, they are dependent on how many lawyers by chance can weigh in. i think this is a problem. our founders understood the need for stable laws. thomas jefferson said the instability of our laws is really an immense evil. alexander hamilton and james madison warned of the evils of laws that, quote, undergo such inses sabt changes that no man who knows what the law is today can guess what it will be tomorrow. i'm running out of time, but as one final caveat, to be clear i'm not saying that the court should strain to create brightline rules or broad constitutional pronouncements out of thin air. in fact, i'd rather them slightly err on the side of, you

know, of restraint than of saying things too broadly. but especially in the north austin case, as miguel estrada said, if seemed as if the court for -- maybe for internal political reasons was deliberately straining to find narrower grounds than the case naturally presented. again, what he said was it is very different to reconcile texturally how they reached the result. so whether by design or happenstance and whether individual decisions were justified or not, i fear the results of this term's jurisprudence was to further muddy the waters making it harder, not easier, for the public to understand the laws that govern them, and i fear this trend might get worse if judge sotomayor joins the court if she still believes what she wrote in 1996 rather than what she told the judiciary committee this week. thank you. >> thank you, quin. at this point we'll give each of

the participants a few moments to discuss and rebut. >> let me jump in, if i could, on the voting rights act decision and quin and juan have both talked about t my own sense of what happened there was that the court had after the initial round of voting in the conference, they had a majority to strike down section five. but that majority necessarily would have included justice kennedy, and if one knows justice kennedy's record, you know that he is very much concerned about his ultimate legacy, of what people will think of his career on the court in several areas, and one in particular is racial equality. i think what happened in northwest austin is that the court walked right up to the precipice of striking down section five and kennedy balked.

i think it certainly was very clear after the oral argument where kennedy's constitutional sentiments were about section five. i believe that he does regard it as mike carvin put it in some context, an absurd statute, at least as its presently applied, not perhaps as originally enacted. but kennedy is very concerned about running counter to the notion that raise should not matter in our society. he generally does not believe in race conscious remedies except in the very incremental kind of way, and i think what he was concerned about when the internal circulation of the opinions continued at the court, i think he was concerned about having it on his record that he had provided the fifth vote to

strike down what is i think undeniably been the most effective civil rights statute that has ever been enacted by congress. i think that accounts for the result more than the chief justice's purported interest in minimalism, and i think the chief justice's interest in inmallism is much more strategic than it is principled. he's interest in minimalist approaches when he can't control the five votes to go more broadly. and, for example, his push to take on the louisville and seattle cases three terms ago when -- two terms ago when there really was no division in the lower courts in that area, the court was being very aggressive in reaching out to take those cases and did so i think in order to make a statement, to make a declaration along the lines the chief justice

ultimately did. you remember that's where he made the remark that dividing us up by race is a sordid business. so i think the chief is getting too much credit for trying to press a minimalist approach. i think he does that only as a backstop when he can't control otherwise. >> let me pick up on the voting rights case because i think that was more evidence in my mind of the political nature, the increasing political nature of the court and the danger the court encounters as it becomes more and more politicizeed. i don't think there's any read of the law or history that wouldn't indicate that the voting rights act on the whole now stands as an anachronism and yet now a politically sensitive issue because of the significance in ending a disgraceful era of segregation

in this country in which you had segregationists utilizing strategies, everything from bubbles in a bar of soap to poll taxes to limit minority voting strength. that clearly was a period of shame for this country. but now you have, especially with regard to section five, a basis for this law that's rooted in data from 1964, 1968, 1972. that's the basis in which the reauthorization took place in the united states congress going forward. the court clearly felt that in terms of oral arguments, the court clearly was concerned that this was a violation of the u.s. constitution's guarantees of state sovereignty, especially with -- because of the assumption of the intent to

diskram nate by the states involved. you have nine southern states, seven others that are covered under section five, but the assumption that these states are intent on continued discrimination without any actual evidence that they are engaged in that, and if we're talking about this utility -- electric utility district in austin, texas, we're talking about an area that was not in existence in the '50s, '60s, and '70s. did not come into existence until the 1980s. these are the facts. i'm not here offering some opinion. so this is the case, and i think at this point then the chief justice or justice kennedy in lyle's mind go about making a political decision, and the political decision is that it's going to set off fireworks in the minds of those who would think that any decision by the supreme court that somehow might diminish the voting rights act is really the first step, and

you could have heard this on talk radio and the like over the course of these discussions, is really the first step or the camel's nose under the tent of taking away the right of black people to vote in the south. now, that sounds ridiculous. it sounds like i'm making stuff up, absurd, but that is the kind of freight that attaches, the fear that would attach to any effort with regard -- any ruling in the minds of some that might diminish the voting rights act in this country. and so you get the supreme court then, i think, looking for this narrow basis, trying to craft something that would get as many votes as possible. it ends up with an 8-1 volt. in this regard it reminds me so much of the efforts by chief justice warren in the brown case. find a way to get as many votes as possible, but again i think that was the instinct of a former governor of california understanding the political impa impact. here we have chief justice roberts, justice kennedy in your mind lyle, making i think a

similar political calculation, and i think that if you had to come to some judgment about this, you would say that they -- the hope was that the congress will act, that the congress will go back and take responsibility for this political initiative, what should be a political initiative, to somehow settle this properly, and that this warning was coming almost as if a political light was flashing atop the supreme court on one side of first street to alert the other side that if you don't do something and we are confronted with this case again, we may not act in such a limited fashion because of our political concerns. but it's all about politics. >> i agree with everything juan just said. i think it was an unfortunately highly political decision, the northwest austin case, and for all the reasons that he said, i could go on for 15 minutes off the top of my head about the problems i see with section

five. >> our timekeeper would -- >> exactly, exactly, which i won't other than to say it's sort of odd to give these bureaucrats in the justice department who themselves can be very politicized power to overturn state laws and state constitutions and then, you know, even if they are so wrong that the entire supreme court years later slaps them down as happened in reilly versus kennedy in alabama. but what really bothers me and gets back to my theme about the public not being able to understand, you have a situation where the court had to jump through hoops to avoid a constitutional issue when one was really squarely presented, and what came out was a muddle that says, okay, well, we'll sort of send it back, and you

have this bailout provision and then come back to see if somebody else can bail out and we'll tell them that and then maybe we'll get to the constitutional question later, and you end up having it just as bad as these five-part tests on other constitutional issues that the court has made up out of thin air. you've got a court for political reasons not reaching a constitutional question that anybody can understand, and instead throwing everything into a much bigger muddle, and that's why i thought it was unfortunate, and that's why i thought that justice thomas' separate -- was it a decision? his dissent was right on target when he said sometimes constitutional avoidance is a dodge and it is not appropriate, and in this case the constitutional question is squarely before us and they should have handled it.

>> by the way, if i could just intrude a little bit on the audience's time here, i think we will see this case -- or this issue back very quickly. first of all, it seems very clear that congress is not going to respond. congress does not want to reopen section five and try to find a new formula in which -- unless the entire country is brought under section five, which i don't think there's any political instinct to do that. and also people like greg coleman, who brought this case and mike carvin, are already working on developing new litigation, and i think the more likely next round of a lawsuit will be under section five. it will not be a little political subdivision that has a clean record. it will be a state that has been recently denied clearance in washington because there's one way that you can read in

northwest austin case the decision by the court. it's indicating there is an exhaustion requirement for a political subdivision. in other words, it cannot raise the constitutional issue in the next round until it first attempts to get a bailout and is denied it. so i think the strategy will be to move to get a state that has had a recent election law change invalidated or denied by the justice department or by the three-judge court in washington and then you can have an immediate and direct test of the constitutionality of section five as presently written. >> all right. well, i'm going to -- because i understand that infringing upon audience question time could lead to revolt, i'm going to shift to that, although i will exercise the moderator's prerogative to ask the first question and to make it as unfair as possible. and so i ask you to put on your

prognostication caps. it's been said that replacing a single justice on the supreme court does not simply add one justice, but it changes the entire court. with that in mind, what impact do each of you think that a justice sotomayor would have on the court, and i'll just offer i previously have written that i don't think it's a zero sum game. i think you can take -- despite the sort of caricatures of the 5-4 court, that you can see areas where souter has been the decisive fifth vote, be it in some criminal procedure cases or perhaps of more import to a sotomayor nomination certain business law cases where she's been more hostile, i'm that iing thinking in particular her merrill lynch case where she was overturned by the supreme court. setting the stage, what impact do you think sotomayor's replacement of souter might

have? >> somebody else take it first. >> well, my sense is that in the short term what you have here is judge -- justice potentially, justice sotomayor i think will try to adhere as much as she can to stay within the mainstream and to hold to this notion that she is someone who does believe in precedent. now, i think if you were to look at instinct, and people have talked about the instinct of justice roberts is to rule with corporations and big government, i think justice sotomayor's instinct has always been to rule against the big guy. i think if you wanted to have some testimony to this effect, you'd ask the baseball owners going back to that strike when they had -- when she ruled without -- i think she said it was a 15-minute hearing. president obama said, as i recall she refused to hear

additional witnesses or document and simply ruled against the owners and said they were trying to take baseball back to the 1950s and the precurt flood area. in general i don't think she's going to abandon the 17 years that she has had on the courts in this country. i think her record is pretty much an indication of the type of judge she will be. my guess is that free now from the constraint of being challenged, cases taken to the supreme court, you might see more of the leaning that you're touching on especially, antagonism toward big business, but i don't think it's going to be out of the mainstream. i think she has more trial experience than anybody as we've heard repeatedly from the democratic senators during the course of the hearing. i'm reminded that when justice marshall died, i remember talking with the likes of

justice rehnquist and justice scalia and they said simply having someone with that much experience as an actual litigant, someone who has been around as thurgood marshall had been in representing people who were charged with capital crimes and the like, makes a difference in panel. so the sensibility that she might bring as a poor kid from the bronx will certainly add to the discussion, but i think she -- you know, it might be more relevant to the general public to think of, well, here is another yale law school graduate, another ivy league graduate. i think we only have one who is not an ivy league graduate. >> justice sterchs. >> and here comes another catholic. for the most part i think given what my inclination is to think about future nominees coming from the obama administration, i think she would be rather centrist by that measure.

>> you're just trying to scare me, juan. i'm just going to hazard a guess that her speeches are far more reliable indicators of where she will go once she's not restrained by higher courts than there are any other indices. i think to quote a totally unfair statement that chuck schumer made about now 11th circuit court judge bill pryor, i think, and i know people here are going to disagree with me on this panel, but i think her record absolutely shouts out advocate and doesn't even whisper justice or justice or j. doesn't even whisper judge is the direct quote. so i feared that her -- that her speeches really indicate a crusading mentality.

>> bob, my sense about it is whether she will be most challenged in the beginning is in oral argument. i think on the second circuit she has been one of the most active members of the bench, but as you know, the courts of appeal sit in panels of three. the supreme court sits always in the panel of nine and this particular collection of justices, even without justice soutor is what they call a hot bench. it will be difficult for judge sort mayor to become as actively involved unless she has sharpel elbows that i think would be tolerated on that bench. she's going to have to find ways to get questions, and i think the -- i think a lot of people underestimate the importance of an oral argument in the dynamic

of a court's work because if you know how the court functions procedurally, the oral argument is really the first time at which the justices actually discuss the substance of a case. they don't do it at the so certiorari and thai don't do it among themselves in preparing for oral argument so that when they come to the bench it is an agenda-setting moment and what happens in the oral argument is that the court there frames what the debate will be when they cast their first votes in conference, and by the way, i think clarence thomas really denies himself a signal opportunity to participate in that agenda-setting process by not participating actively in oral arguments. so i think sotomayor will really be challenged to adapt to an

eight-member actively questioning court, and also, i really say this with some hesitation because of the possibility that we'll be misunderstood. i don't think she is as smart as justice souter and was to my mind i have covered a lot of very smart people on the court, but no one at least since -- had or has the intelligence that david souter has and that came out very importantly in oral argument where he was the one justice who could most quickly get to the heart of any kind of a case that was up there. so i'm not sure she's that good again. she may develop better over time, but i would say she's got some way to go to catch up with david souter's standard. >> let me make one 12-second remark which is an example of where oral argument was really important was in this northwest

texas case where almost the entire excuse that the eight justices used to -- to constitutional avoidance was the single question they asked to the plaintiff's attorney and he answered a simple one-word yes and they built their whole argument about why they could avoid the constitutional question on that one response. so that's a perfect example of what he just said. >> all right. let's turn to questions from the audience. once again, raise your hand. please do wait for the microphone so that the listeners at home can hear and state your name and affiliation. as is tradition and to encourage food fights between the panel if any of the members of the prior panel, it would be first.

all right. yes? >> a.l. media. are there any decisions this term that justice souter came to that any of you are certain justice sotomayor have decided differently. >> well, in my opening, i mentioned that i think is a real possibility, that's melendez diaz on the question of bringing lab technicians in to be confronted with cross-examination, and i would be very surprised if he would take the same position that he did. i can't think of any other off the top of my head. i think -- i think she might well have been in favor of allowing convicted individuals to have a right to have dna

evidence retested when there's a legitimate or at least an arguable claim of innocence. justice souter did not join in that opinion and, by the way, neil read from his very compelling separate statement in that case as to why he was joining in that case, but i think judge sort mayor, had she been on the court for that case, she might well have provided a vote in favor of allowing a right to re-test dna evidence. >> i can't think of any. >> i'll defer. any other questions? yes, in the center. >> mark pack with senate republican policy committee. i heard everyone talk about how the court has become more politicized, and i'm wondering, i don't know if you want to address whether that is a good

or a bad thing and some people may have differences of opinion on that, and i'm wondering whether you think the responsibility for that lies primarily with the justices or perhaps with the media coverage that the court's docket receives or some other factor? >> i think it's the argument i was making in my presentation and my sense of it is that it's a result of election results and more the polarization of the american electorate and a sharper divide. the problem going forward will be having the american people continue to believe that these nine people are worthy of their trust and it's not simply a matter of votes, political votes and actually a matter of the law and that we live under the constitution and that we should, as an american people, always relegate our political beliefs

to a trust in the higher power of that constitution. i think that gets worn away, eroded, if you will, if the politics continue and when you see people make political decisions, even decisions that you might agree with with going back to the voting rights case when you say, you know what? i just don't see the law as the ultimate authority in this ruling. >> let me add something to that. there's a number of contributing factors to it and i think juan is exactly right. i think the court internally has become more politically dispute ashs as well as ideologically or philosophically. among the factors that i think contributes to that, one, which may surprise you is i think the small case load gives more importance to each case. it allows the justices to dwell longer upon their differences

between the two. if you have to decide 150 cases, you are not likely to be as inclined to indulge yourself as greatly in dispute with your colleagues because you have to move on, and you also have to make more alliances. so if the case load continues to stay small and we continue to have the confirmation process over the kind that we've seen over the last half dozen justices' nominations, i think you will see no decline in the politization of the judicial process. justices, i think, like to persuade themselves and like to try to convince us that they really are not affected by what's happened to the confirmation process because once they put on the robe, then they respond to different kinds of influences, but i think each one of them now knows what it is

like to go through the process to have withstood that kind of process and to have had actually survived it, and i think you carry with you, perhaps a good many years after you become a member of the court a sense that you had to run the gamut and, by god, you're going get even in some way after you're on the court. i know justice thomas, as a matter of fact, has indicated that one of the reasons he plans to serve a very long time is because of the hard time he had getting there in the first place. so i think that is an influence. >> nothing to add, i agree, actually, and i agree entirely with again the point about the low case load. i think it does have those effects as well as the other bad effects that have been talked about. >> i think if we have a question that can be answered in one minute, we can take one.

>> from the heritage foundation. i just want to follow up. it does seem that the media, to be blunt, does not do a great job of talking about the law in the case that is decided and often talk about it from an interest group analysis and, for example, in the ricci case, i saw very few citations of the actual text of equal protection clause which means no state shall deprive any person of the equal protection of the laws. would you agree? it seems that many of your colleagues want to pit groups against each other when they write on supreme court cases. >> i'll give you, and i'm sure bob will appreciate this. a very brief answer. i think the general mainstream media coverage of the supreme court is nothing less than disgraceful. >> i would like to agree with that and also to say that is one reason why outfits like the blog

are so essential because they do an absolutely wonderful job even when i don't agree with their analysis, they do a wonderful job covering the real facts and the real principles and the real things that the supreme court is deciding. so hats off to you. >> i would simply add that it's not the -- i think i disagree with the premis and the question that there's sort of collective coverage. it's to my mind absent of coverage, until it comes time for the actual ruling to be announced, and then it's announced much as you would announce the final score in a game or sporting event and people say who won and who lost and then it's off to the races with the political interpretation and analysis rather than looking at the basis in which these cases -- or the rulings have been made. you know, i can understand why did they emphasize this or that,

but i think it's a scarcity, a dearth of coverage of what are fascinating issues for the american people, and i think what offers the sense of our common birthright in terms of being americans and what it means to have, you know, the gift of a supreme court and a constitution in our lives. >> i think, one of the things they think is very evident in media coverage, and i don't think this is exclusive to supreme court coverage. i think it applies in politics. i think it applies in coverage of medicine. it implies to coverage of science. virtually any subject in that area that has its own kind of universe and its own kind of vernacular. the media, the general media are not interested at all in process. they are only interested in outcomes and so a case like the

northwest austin case, if you follow the history of section 5 and the constitutional questions, this has been debated for a couple of generations. the constitutional issue, but to read about the austin case in the general press this year and last, you would think that this was like a baby that had been dropped unwanted on the doorstep of the court. it came from nowhere. where did this case come from? and i would not be surprised if many people in the american reading public ask themselves when a case comes down like austin or rich and i where in the court does that come from and why does the supreme court think it's business to be deciding that? >> let me add another personal note here. >> i'll have to have you draw to a close before our c-span friends. >> i think, for example, that bush versus gore was one of the worst covered supreme court

decisions in my time, my 50 years of covering the supreme court, and that's because people did not understand through the media what was actually going on there as a constitutional there as a constitutional matter, seeing it only as if it

the panel negotiations will run through at least wednesday as members consider amendments. live coverage here on c-span3. >> anybody on the staff know where the -- okay.

good. on friday, at friday's committee meeting, the chairman in the nature of a substitute which pending when the committee recessed, the substitute is open to amendment at any point. however, to promote orderly and thoughtful deliberation of the amendment, as i described in a memo distributed to committee members in advance of the markup, i will exercise the chair's power of recognition to give priority to amendments in order of division starting today with division c. i will also exercise the chair's power of recognition to prioritize recognition of members offering amendments that had been submitted consistent with a two-hour advance submission policy. i discussed in a memo to members in previous markup sessions. i now turn to the pending amendment with the nature of the substitute. >> will the gentleman yield for

a question? >> yes, certainly. >> on timing. i think the chairman may be aware, ymay not be aware, but there are rumors floating about about this markup, one of which was that we weren't even going to convene today. so you've already disproved that one, which is good. could you inform the minority what your intention is for the rest of today and then beyond that the rest of this week in terms of your markup schedule. >> we are going to be meeting until there are votes on the floor. then we will break to respond to the votes on the house floor, usually that occurs around 6:30. we will then return. the chair is providing dinner to both sides of the aisle. we thank you in advance. for members so that we can continue our markup and we'll probably go to 11:00 or 12:00.

and we will be meeting tomorrow and i think we're going to -- i believe we're going to convene tomorrow afternoon. >> but it is, as of right now -- >> we will then go into the evening. >> it's your assumption as chairman that we're going to have a complete markup and not db you don't see a scenario where we would suspend or stop the markup sometime this -- >> we're in the markup. we'll continue with the markup. there may be changes but that's my intention. >> okay. we totally support that on the minority. we, as you know, have a number of amendments and we fully look forward to a positive and constructive markup process this week in this committee. >> thank you. >> thank you. >> so we have pending before us amendment in the nature of a

substitute to the republicans would go first with an amendment. since the last amendment we considered on friday was on the democratic side. mr. deal, you're seeking recognition? >> question yes, i do. >> what is the number of your amendment? >> the number i have is 298 mandates on states number 3. >> let me ask the clerk before we consider that amendment, is this an amendment to division c? was the amendment submitted with two hours lead time for committee review? and are there copies for distribution at the desk? >> one moment, mr. chairman. i'm checking.

>> mr. deal, what's your number again? the number of your amendment? >> 201. >> mr. chairman, i'm informed it it's 201. >> i'm sorry. >> i asked the clerk a series of questions. >> we have it, mr. chairman. >> i asked the question whether this relates to division c. >> it does. >> two hours in advance and you have amendments to distribute. >> yes. >> the answers are in the affirmative. >> amendment offered by mr. deal of georgia. >> without objection the amendment will be considered as read and i recognize the gentleman from georgia to speak on his amendment. >> thank the chairman. mr. chairman, this amendment

relates to the authority of the health choices commissioner and would restrict that authority so that he could not deem a state that offers a state health insurance plan to its state employees as being out of compliance with a federal standard. as we all know, our states choose to offer plans of health insurance for their state employees and those who under their state law are entitled to coverage. and i do not think that it would be the intent of this body to allow this federal health ch choices commissioner to in effect override the decision that has been made by the elected officials at the state level as to what they think is appropriate to be offered to their state employees. and this amendment would simply

clarify that fact. let's take, for example, we do not know for sure what would be a mandated coverage question, but let's assume that it it may be something as, at the federal level, that would mandate that an abortion or a botox or things that might be out of the mainstream be required at the federal level and a state plan might not offer that. i don't think we would want the state to be told that they're going to have to pay an 8% employer tax for being out of compliance with the federal standard. that is is the gist of of the amendment and i would urge its adoption. i'll yield back. >> gentleman yields back his time, which is to be recognized be on the amendment. the chair will recognize himself for five minutes. as i understand this amendment,

while we're considering it it in division a, it would ordinarily be thought of as something that would come up later in the bill. but it is a provision that does only one thing. it requires the state and local governments in their roles as employers to follow the same rules that all other employers must follow, no more, no less. and the gentleman from georgia would strike that requirement in the legislation. it is in the public health service act part of the bill, unlike what other employers being covered under division c, becau because if the governments don't provide what other employers would be required to do, then they wouldn't be eligible for federal funds under the public health service act. this is the way this committee has reached other requirements such as the cobra insurance

continuation and other matters that relate to local government. we don't rely simply on mandates that are in part a because there are some in the legal community that argue that under the constitution the federal government can't simply order the states to do things. so what we say is that the states don't have to do this. they don't have to provide their own employees' coverage. but if they don't give their own employees coverage, they're not going to get funds from the federal government. in all 50 states, local governments are created by state law. they must be -- they may be called cities or counties or parishes, but they're creatures of the state and the statutory language requires the states to assure that localities will comply in the same manner as the states do. it doesn't the cut off funding immediately, allows flexibility for the states to work with

localities to come into compliance. if we're trying to get people in this country covered with health insurance, we think that governments at the state level and the local level should provide insurance coverage for their employees as well. and the gentleman from georgia's amendment would strike that requirement. we think that requirement should stay in the bill. so with all respect to the gentleman from georgia, i disagree with his amendment and urge members to vote against it. further discussion, mr. barton. >> mr. chairman, i'm going to rise in support of the amendment. before i do that, i have a question or two for counsel. under the provision that mr. deal is attempting to strike with regard to the states, is it try that if we don't strike this and the bill stays as is that

the federal government could withhold grants from states if they didn't comply with some of the mandated requirements for health coverage of their state employees? >> yes, sir. >> it is a true statement. >> yes, sir. >> that's a straight answer. okay. is it true under the provisions of the bill if not struck or amended that if the federal government required abortions to be covered the state would have to do that or it it could lose grants? >> if the secretary acting on advice of the benefits advisory commission had made abortion a minimum benefit for any acceptable insurance package, yes, sir, they could withhold that. >> thank you. and thanks for the nontechnical answers. i appreciate that. mr. chairman, i do want to

oppose -- i want to support this amendment and oppose the base of the bill that congressman deal is attempting to amend. i don't think too many members of this committee really want to tell a sovereign state of the union how to manage their health care plans, and i certainly don't believe we want to give a commissioner, as i understand the bill's term right, the authority to enforce those health mandates by withholding grants. i'm only aware of one provision in federal law where currently we give an administrator or a cabinet secretary the ability to withhold grants. in the clean air act we do give the epa administrator -- i don't know if we give the direct right to withhold highway funding, but

we certainly -- it is an option that the epa administrator can use when trying to get enforce or comply with certain of the requirements of the clean air act. and that particular authority has been threatened repeatedly, but i'm not waaware that it it' ever been used unless it may have been used once for the city of atlanta. >> maybe counsel could answer that question if it's ever been in the statute before or ever been used. >> mr. barton, mr. waxman, this provision is modelled on one that is already in current law for the cobra continuation for health insurance that requires employee lawy employee employers to provide coverage for 18 months after severance, also subjecting all public health grants to jeopardy if the state were not to comply. there has been no noncompliance and no state has lost

eligibility from provision. >> it's a huge -- >> we're telling employers that we want them if they're going to provide health insurance to their employ yee employees to m minimum standard. why not tell the state employees to require minimum standards xs we can't tell the states directly what to do. we have to use whatever leverage we have over them. the constitution says you can't tell states what to do, but we can put a condition on it. if states want public health money from the federal government, one of the conditions would be that they are going to treat their employees as fairly as any other -- the other point i wanted to make is your question about abortion was a hypothetical question, not a real one. >> it's a real question. >> well, it seems to me highly unlikely that the secretary is going to demand that every plan in this country have abortion services.

i think we'll probably have amendments to that -- in that regard. >> let me make a point. the chairman's support of the amendment to me is an eloquent statement of why we shouldn't do it. it is chilling to me that we're on the verge of preempting state sovereignty and telling states, pressuring states, what they have to do. why have a state? if what the chairman just said is the -- i don't know how to say this . if that is the philosophy behind this bill, it really calls into question the federal system. >> would the gentleman yield? >> my time is expired. >> without objection, the gentleman will be given one additional minute. >> and i will yield to the author of the amendment. >> i thank the gentleman. >> i would simply point out that

this amendment will keep you , not uninsureds. why do we want to take this bill to the level of ache taking away all state rights, all local control on issues as fundamental as this? and if this amendment is defeated, you will in effect be doing exactly that. and i would -- >> the gentleman still has 30 seconds. there is just a basic

philosophical difference twent the majority and minority or between the chairman and congressman deal. we think competition in the marketplace is the way to provide the best health care plans the we certainly think states who don't nol normally pay as well as the private sector but most states do have premium health care plans should have the right to pick and choose and to develop the health care plans they provide to their employees. we do not believe we on the minority side that what we really want to do is create a system where a federal health commissioner is telling the states what they have to do in terms of their health coverage. so i would strongly support congressman deal's amendment. >> thank you, mr. chairman. >> the gentleman's time is expired. mr. stu pack. >> thank you, mr. chairman. you know, we brought up this amendment with everything from botox to adorgs. i want to assure members that over the weekend mr. waxman's

staffed and our staff have been working on compromise language so we do not preempt state laws in regard to abortion services. and that debate will really come up in division a so i would hope we would vote against this amendment. mr. waxman and i and all the staff has been working in good faith. i hope we don't start throwing abortion or reproductive services on every amendment we want to get through. there is a meaningful place they come up legitimately in this legislation and we're prepared to offer amendments at that time. we'll have our votes in, but i hope we're not going to use reproductive rights as a red r herring on everything pargment that comes p up. i hope we vote no. i yield the remainder of my time to mr. clone. >> thank you. i guess i'm just a little confused about what my colleagues on the other side of the aisle are saying because all we're really doing here is saying that the state has to act like other employers, your benefit package, whatever it is,

that we're requiring of our employers, that they would have to do the same thing. i guess i philosophically don't understand if the other side is saying the state shouldn't have to do that, then you're going to have people who have private employers doing one thing and putting certain requirements on that that the states don't have to adhere to as employers. it it seems to me that that's not fair. and i don't know how any other way to do this. this is like a book that as it explained we've used in cobra and hippa to basically say if they don't do it they're not eligible for federal fund in the public health services act. but i wouldn't want to see a situation where states didn't have to do what other employers do, whether it's a benefits package or whatever it happens to be. so i think i understand what my

colleagues on the other side are saying but i think it's the wrong way to go. we should say the states have the same obligation as other employers. this is the best way to proceed and one ha's already been tried and with cobra and works. i yield back to mr. chairman. >> gentleman yields back the time. mr. boyar? >> thank you. i'll be brief. i just want to make this note. both political parties will do this, it seems like we'd like to pick and choose when we want to set a federal standard and preempt and when we want to fight for state's rights. we're all subject to that. i just want to pause and remind us that if, in fact, we want to set a federal standard there better be a basis, in fact, for that overarching federal interest. so, for example, mr. chairman, when i made an amendment when we did the tobacco legislation to set a federal standard on fire-safe cigarettes, you said

no. you said no, steve, we're not going to override the state. now you're arguing the complete opposite. but i just want you to know, even as i have voted for a federal standard for medical malpractice, so i will recognize that we do pick and choose when we want to have a federal standard, when, in fact, we want to give respect to our states. but if we're going to set that federal standard, i just think we need a good basis to say why we want that overarching federal interest. i yield back. >> further discussion of this amendment. yes? >> mr. chairman, thank you. the question was put to general counsel by ranking member barton, could the secretary under this bill, could the secretary tell the states that they would have to have a plan

that covered hypothetically, you say, abortion? and i understood the general council said yes, she could do that. he could do that. and then mr. chairman, you said being we being, well being i don't think she would do that. many fact, we'll probably have some amendments that will come up later on in division a or division b to speak to that. well, you know, here we are at the very outset addressing a problem that my colleague from georgia, the ranking member on the health subcommittee of energy and kmcommerce of this committee recognized, has a straightforward commonsense amendment that would make sure that would not happen. why should we put all that issue until we get to wednesday or thursday or friday or next week or whatever? let's deal with it right now. i support the amendment. i hope my colleagues on both

sides of the aisle support the amendment. it's clearly stated. there's no ambiguity. let's prevent had and pthis and prevent it right now. i yield back. >> thank you, mr. gingrey. further discussion on the amendment? if not, we'll proceed to a vote. all those in favor of the deal amendment say aye. opposed no. no. the nos have it. the amendment is not -- >> i would ask for a role call. >> gentleman requests a roll call vote. let's proceed. >> mr. waxman? >> no. >> mr. waxman votes no. mr. dingle? mr. dingle, no. mr. markey? mr. boucher? mr. pa loan? mr. pa loan votes no. mr. gordon?

mr. gordon, no. mr. rush? mr. rush passes. ms. eshue? she votes no. mr. stupak? mr. angle? mr. engel votes no. mr. green? mr. green, no. ms. deget? ms. deget, no. mrs. katz? mrs. katz, no. mr. doyle? mr. doyle votes no. ms. harman? ms. harman, no. ms. schakowsky? many schakowsky votes no. mr. gonzalez? mr. gonzalez, no. mr. enzly? mr. enzly, no. ms. baldwin?

ms. baldwin, no. mr. ross? mr. wiener? mr. wiener, no. mr. matheson? mr. matheson, no. mr. butterfield? mr. butterfield, no. no. mr. bare rose? mr. barrow, no. mr. hill? mr. hill, no. ms. matsui? ms. matsui, no. mrs. christensen? mrs. christensen, no. ms. katzer? ms. katzer, no. mr. sorbet? mr. sorbet, no. mr. murphy of connecticut? mr. murphy, no. mr. spade? mr. mcnewer ne?

mr. mcnewer ne votes no. ms. sutton, no. mr. braillely? mr. braillely, no. mr. welch? mr. welch, no. mr. barton? mr. barton votes aye. mr. hall? mr. hall, aey. mr. upton? mr. upton, aye. mr. stern? mr. deal? mr. deal votes aye. mr. whitfield? mr. whitfield, aye. mr. schimpf kiss? aye. mr. blunt? mr. buier? mr. buier votes aye. mr. redone vits? mr. redone vits, aye.

mr. pitt? mr. pitt, aye. ms. bono-mack? aye. mr. walden? mr. walden, aye. mr. terry? mr. terry votes aye. mr. rogers? mr. rogers, aye. mrs. myra? mr. sullivan? mr. sullivan votes aye. mr. murphy of pennsylvania? mr. murphy, aye. mr. burr xres? mr. burgess, aye. ms. blackburn. ms. black burn votes aye. mr. gingrey? mr. gingrey, aye. mr. skully? mr. skully, aye. mr. markey? mr. markey votes no.

mr. stupak? mr. stupak votes no. mr. rush reported as pass. mr. rush votes off pass on no. mr. ross? mr. ross votes no. mr. space? mr. space, no. mr. shaddok? mr. shaddock votes aye.

>> have all members responded to follow the rule? if so, the clerk will tell me the vote. >> on that vote, mr. chairman, there were 20 ayes and thirt 35. the amendment is not agreed to. ms. sutton, for what purpose do you seek recognition? you have an amendment at the desk? >> i do have an amendment at the

desk. sutton 3. >> my inquiry to the clerk before we call up the amendment is first of all, is this an amendment of division c, was the amendment submitted with a two-hour lead time for committee review and are there copies for distribution at the desk? >> yes. >> and sutton 7. >> okay. @@ a point of

clarification from the clerk. the amendment number is? >> it is amendment sutton 3

underscore 001. >> mr. chairman, this is a very easy to understand amendment. it is an amendment that within america's affordable health choices act there's a clause which creates a national prevention and wellness strategy to better the overall health of americans. that's in section 2301a. this amendment would include the substance abuse and mental health services administration among the agencies that the secretary is directed to consult with regarding development of the national prevention and wellness strategy. samsa, the substance abuse and mental health services administration is within the department of health and human services. as we know, mr. chairman, mental health and mental illness and substance abuse are some of the most costly and disabling conditions affecting the u.s. population. severe mental illness costs the

u.s. $193 billion in lost wages in 2002, which exceeds the gross revenue of 499 of the fortune 500 companies. mental illness often accompany and greatly increases the cost of other chronic conditions such as diabetes, asthma, heart disease and obesity, but nonetheless mental illness and substance abuse are often overlooked in discussions regarding prevention and well ms. it occurses despite the pact there's a large body of research showing echktiveness of interventions at preventing mental illness and substance abuse and it would help us reduce our costs in the long run. samsa would be well equipped to advise the secretary on how to best incorporate the findings of the iom and prevention of behavioral health disorders more generally into a national strategy. samsa includes mental health promotion and substance abuse

prevention as core elements of its mission. with that, mr. chairman, i will yield back. >> i have no problem with the explanation you gave, but i would appreciate it if you could tell me if this community prevention and wellness activity section of the bill is where there is funding for bike paths and lighting which has been written about broadly in the press, including i believe in the boston globe. does the gentlelady know? >> i'm unaway of thre of that. no. >> maybe i could ask counsel. >> give me one second, sir. >> i can say that that has nothing to do with my amendment. >> i understand that. i'm simply trying to find out if this is that section of the bill. >> no, sir.

this occurs as a bill setting up strategy, it does not appear with offer of appropriations at all. >> so can you tell me where those funds are? >> yes, sir. they are i believe further on in subtitle -- >> reclaiming my time? >> if counsel will answer that later, i appreciate the gentlelady for yielding. >> certainly. reclaiming my time. with that, i will yield back. >> gentlelaid yields back her time. >> mr. chairman, i was a little confused on what mr. shaddock just questioned. the amendment actually before us we support. this amendment, aahca-09 001 is unobjectionable. we are supportive. >> that is the amendment that the gentlelady from ohio has presented to us. any further debate on that

amendment? >> withdraw the point of order. >> gentleman from louisiana withdraws his point of order. all those in fave of the sutton amendment will say aye. opposed, no. the ayes have it and the amendment is agreed to. further amendments. mr. gingrey do you have an amendment at the desk? >> mr. chairman, i do. it's 14a-001. >> mr. chairman, i reserve a point of order. >> i ask the clerk the following questions again. is this to the subtitle that is under consideration? has it been available for two hours and do you have copies to distribute? >> mr. chairman, yes to all of those questions. >> the answer many the affirmative to all those

questions. the clerk will report the amendment. >> amendment offer by mr. gingrey. >> without objection, that amendment will be considered as read and the gentleman from georgia, mr. gingrey, is recognized for five minutes. >> mr. chairman, thank you very much. this amendment would prevent any federal employee or political appointee to dictate how a medical provider practices medicine as a result of the development of best practices by the center for quality improvement. mr. chairman, doctors and their patients are really sacrosanct and the droctor/patient relationship is very important. the center quality improvement as i understand it is similar to the knight organization in the

uk health system, the national institute for health and clinical excellence, that makes decisions mr their system that basically denies certain coverage. and i would reference particularly in cancer therapy, chemotherapy, wherein the result that the five-year survivability of of prostate cancer and breast cancer is significantly less than it is in the united states under our current system. and mr. chairman and my colleagues, that is simply because this so-called n.i.c.e. oversight groups makes decisions based on cost and not necessarily clinical effectiveness. i have no objection to the quality improvement to do research, hopefully scientific

research, to come up with what appears to be best practices for each and every disease. but they have to take into consideration the fact that patients vary. and who knows that better than the doctor that maybe has been the treating that patient for 25 years? who specializes in a particular disease, whether it's diabetes or cancer, and knows that this patient is on medications that might conflict with a certain treatment that happens to be found to be the best practice by the the center for quality improvement, the least costly, let's say. but yet the doctor knows that this patient should not take that drug and that there is a

better drug for him or her for. you know, when we heard last week on i think monday the director of the congressional budget office, he talked about the fact that in looking at this bill and looking at the bill that was passed by the health committee in the senate, unfortunately there is a bending of the growth curve in regard to the costs of health care but it's bending in the wrong direction. so my fear in and the purpose really of this amendment, my fear is that when we sign up 97% of the people in this country for health insurance, universal coverage, near-universal coverage, that we're not going to be able to meet those obligations and it's going to be like knnoah's ark.

it may take a couple of years but it gbegins to sink. you need to get rid of baggage and you start to throw people overboard. who gets thrown overboard soonest? those that are sickest, suffering from illnesses, our precious seniors get thrown overboard. i think it's very important, very important, mr. chairman and my colleagues, that we don't let that happen. that doctors are smart enough to understand that the center of quality improvement says bwhat works best. they are going to take that into consideration, strong consideration, but they forced or should not be forced to practice under the dictates of some federal employee or political appointee who doesn't have medical background. they may be good at business or maybe a former governor, but

they don't practice medicine and don't understand the importance of this. so mr. chairman i would ask colleagues on both sides of the aisle, i would hope that everybody would agree with me that this amendment needs to be in there to protect these patients so that doctors can continue to practice medicine as they see best, taking into consideration, of course, the recommendations for best practices but not be dictated in regard to how they can treat. with that, mr. chairman, i'll yield back. >> the gentleman yields back his time. who seeks recognition? >> mr. chairman? >> we'll go in order of seniority. >> i have no problem if she wants to go first. >> ms. schakowskyschakowsky, yo recognized. >> i'd like to speak against this amendment. here's why. this amendment says that this would not allow any "federal

employee or political appointee" at the center for quality improvement to dictate how medical providers practice medicine. well, this is very, very broad language. so consider the checklist for health care associate of infection as written up in the new yorker last week. this is an innovation that both sides of the aisle have hailed as a major advance in care. when doctors follow a simple five-step checklist when doing certain procedures, certain types of health care associate infections can be nearly eliminated saving tens of thousands of lives and millions of dollars if implemented nationwide. if the center were to try to assist in the implementation of the checklist, this could easily be construed as "dictating the practice of medicine." but the checklist is exactly the prototype for what we want the center for quality improvement to develop, and this language

could prevent the center for quality improvement from k carrying out its essential tasks of improving the quality of health care in the united states. scientific advances, if done properly, should change the practice of medicineme. we would never pass a law that said to the national ins utes of health that if they develop a new life saving therapy doctors shouldn't use it or koncouldn'te it. ha's exactly what this amendment says. i urge my colleagues to vote against this. >> will the gentlelady yield? >> yes. >> just to add to the broadness of this amendment, i would agree that we want to really -- that we don't want to deal with how doctors practice specific medicine with their patients. but this is so broad, this could go to the rates the doctors charge or this could go to

overuse of -- it could go to many of the provisions that we're trying to get at with this bill to improve the quality of medical practice while at the same time making it more cost-effective. so while it looks appealing on the face, i think this is going to -- i think this will undermine the whole legislation. i would urge a no vote and i yield back. >> gentleman from illinois yields back the i'm. further recognition? mr. barton. >> mr. chairman, i arise in support of the gingrey amendment. it is simple. i'm going to read it. nothing in this section shall be construed to allow federal employee or political appointee to dictate how medical doctors practices medicine. it doesn't say bills the medicine. doesn't say research it. it says practices medicine. now, if the majority and

congresswomen don't want to prescribe how health care professionals practice medicine, we ought to accept it. all dr. gingrey is attempting to do is make sure these new components in the legislation don't end up actually giving bureau the considerate bureaucrates the power to tell doctors how to practice medicine. this ought to be accepted by unanimous consent. we're going to make this point over and over and over and over and over again many this markup. most of us on the minority side believe in the marketplace. we believe in transparency. we believe in choice. we believe in letting diversity -- we're not opposed, if you want to put out a

checklist for best prablgt iss, in fact, the next amendment is one going to be offered by me on transparency. if you want to put out results of surgeries and if you want to put transparency into pricing, we're all for that. if you want to compile best practiceses and most innovative research and make that available, you want to do health, internet technology, help i.t., we're all for that. but what we're not for is you create so many new bureaucracies, so many new positions of potential authority and mandate in washington with people that are not trained doctors have the ability to dictate to the medical community how to practice medicine. practice medicine. that's why dr. gingrey is so straightforward in this, you know. it it's not technical language. simply, we do not want the

bureaucracy created under this provision, under this bill, or the presidential appointees of either political patty if this bill becomes law having any hint of the ability to tell our medical professionals how to practice medicine. >> the gentleman yield? >> i'll be happy to. >> i appreciate the ranking member yielding to me to a second. you know, what he's saying is exactly my intent. the argument about not following best practices as determined by the center for quality improvement or n.i.c.e. or whatever the committee is called in whatever country, i'm not opposed -- i think doctors should pay attention, they should follow best practices if it's a five-step process, protocol or a 12-step protocol, i think that most physicians

would follow that suggested protocol. but let's say a situation where a neurologist has found that in the last three cases where he suspected that a patient may have a malignant brain tumor that he ordered a c.a.t. scan and the report was negative, that there was no evidence of a brain tumor, but his clinical acumen, his gut feeling, if you will, told him there was something wrong with this patient. so he felt like a more expensive test, yes, but an mri should be done and these cancers were detected and these paibts had an opportunity to very early get the appropriate chemotherapy. and not just improve their five-year survivability but hopefully to cure them.

i think a doctor in that situation would be willing to -- if the center for quality improvement wanted to slap him or her on the wrist and say, we're not going to reimburse you as much, we're not going to pay you as much, they would be gladly accepting of that lesser payment if they had in the final analysis the continued right to make those decisions which they knew were best for their patients. i yield back. >> i support the gingrey amendment and i yield back. >> the gentleman's time is expired. yes, mr. pallone. >> thank you, mr. chairman. i just want to stress because of what the previous speaker said that whatever innovations or practiceses that the center for quality improvement suggests or develops are not linked to a reimbursement rate or mandated on physicians. the concern that i have is that with the gingrey amendment and

this language that you kind of throw water on innovation, in other words, you suggest that somehow they shouldn't develop these practices because they may somehow hinder a physician from practicing medicine. that's not the case. there's nothing that they would develop that would be mandatory or say that a doctor wouldn't get reimbursed if he didn't do it. so the language really isn't necessary. the only thing that the gingrey language would do, and my concern, is that it it's going to hinder the development of these practices because there's going to be some fear that somehow we're interfering with the practice of medicine. i just want too stress there's nothing in here that's a mandate or link to the reimbursement rate because i know there was suggestion of that on the other side. i'll yield to the gentleman from maryland. >> just to echo that, i don't think any of us opposed to the amendment are suggesting that we

think doctors should be told how to practice. i think the concern -- and it's ironic because the name of this is construction -- is that this provision could get construed in a way that would end up discouraging the kind of best practices implementation which you agree ought to happen anyway. so i think it's the language of this and the potential for it to get construed such that you then create barriers to the enc encouragement of best practices, which is what we're trying to do and we want the secretary to be engaged many. that's the problem with it. it's not we want to stand in the way of the physician. we're worried this could end up working against best practices. i yield back. >> the gentleman's time is expired. >> mr. chairman, i withdraw my point of order. >> a lot of these comments, i

want to read this from the july 7th "wall street journal." the british officials who established n.i.c.e. in the late 1990s pitched it as a body that would ensure that the government-run national health system use best practices in medicine. as the guardian reported in 1998, health ministers are setting up n.i.c.e. designed to enshoe that every treatment, operation or medicine used is the proven best. it will root out underperforming doctors and useless treatments, spreading best practiceses everywhere. that is exactly what i hear my colleagues on the other side saying. what has n.i.c.e. become? it has become, in practice, a rationing board. as health care costs have exploded, even in this bill, cbo has projected that health care costs will explode, in britain as in most developed countries n.i.c.e. has become the heavy

that reduceses spending by limiting the treatment that 61 million citizens are allowed to receive through the nhs. for example, in march n.i.c.e. ruled against the use of two drugs that prolong the life of those with certain forms of cancer. after last year's ruling, n.i.c.e. political and health director noted that there is a limited pot of money that the drugs with were a marginal benefit and quite often an extreme cost and the money might be spent elsewhere. the board restricted access to two drigs for macular degeneration and blindness. in fact, they allowed this drug -- this guy was going blind in two eyes. they said, okay, we'll pay for the drug in one eye, but you can go without the other eye. n.i.c.e. has limited the use of alwazheimer's drugs, rheumatoid

arthritis, guidance that restraints certain operations. n.i.c.e. is the target of lawsuits. it has a mathematical formula for doing so based on quality-adjusted life years. i am telling you folks if we move down this direction to socialized medicine on the best intentions of best practiceses, we're going to end up with a rationed health care system where people who need care will have to try to find some other country to go to. and guess what? they're not out there. so if you want to set up this quality board and you you want them to subvert dr. gingrey and the doctor/patient relationship on the best intentions as they did in england in 1998, go. but we won't be any pat rt of i.

i yield my i'm. >> i think this is really straightforward and fundamental. read the words of the amendment by dr. gingrey. it says that a federal employee or political appointee may not dictate how a medical provider practices medicine. if you oppose that, then you have decided that a federal bureaucrat should be able to, can dictate how a medical provider practices medicine. if you're going to do that, then you're going to assume medical liability for every decision that you mandate. this has nothing to do with suggesting best practices. this has nothing to do with informing doctors of what is the least expensive fe form of care the most effective form of care. indeed, if a doctor were advised that the best practice was to do what was suggested and then he didn't do it or she didn't do it, that would be malpractice if it in fact caused any harm and indeed they could seek a remedy

for that. this is not a question of innovation. indeed, innovation can come from doctors as well as from government boards. but the question is, do you want to put the doctor between -- excuse me. put the federal government between a patient and his or her doctor? i would suggest to you that the practice of medicine is in part science where we can make suggestions as the federal government to doctors as to what they should or shouldn't do, what's cost effective and what isn't cost effective. but if you think that we should have federal employees telling doctors how to practice medicine, then we are abandoning medicine as it's taught in america's medical schools in this country and i think the ama better listen up. because the notion of a bureaucrat telling your doctor how to practice medicine, if that happens, we're giving up all form. pick up a dictionary. look up the word "dictate." it says mandate, command,

compel. read how. it's clear. should we give this power to the government or keep it in the hands of doctors? i yield back. >> the gentleman's time has expired. mr. green? >> thank you, mr. chairman. having worked on health care both in health insurance issues in the legislature and now for a number of years on the committee, the amendment is so simple it almost seems so easy. but it's probably the ultimate in gotcha amendment. i listen to the arguments on the republican colleague side, that we have the united kingdom socialized medicine making decision. this is not a socialized medicine bill. it is mott. no matter what you say it is, it's not. we're taking advantage of the 60% of folks who get their health insurance through their employer you now. that's going to continue.

whatever we plan for this, it it's not anywhere near a single payer like the united kingdom has. brought up medical malpractice. if we don't pass this, the federal government could be the ultimately the person who gets sue. we're not practicing medicine in this bill. nothing in this bill dictates medical practice any more so than since 1965 medicare hasn't told doctors how to practice. now, i bet you this amendment probably could have been jer mane in 1965 when medicare was created. we can go back and see, did medicare actually tell somebody? no. they tell you it tell you how t practice? no. it tells what you can be reimbursed for. blue cross does it with my insurance. that's what's happening now. but this bill doesn't allow any federal employee to do that.

in fact, if you make this argument against this legislation, then maybe you should have made it against medicare, probably the second most popular domestic issue in our country, only compared to social security. this has so many variations of it. i guess the closest is the netherlands who had national health care then backed away from it. they have an employer responsibility. that's what's in this bill. so this -- this is such a simple amendment, but it really has no bearing on this bill because it has nothing to do with the federal employee kel teleing a doctor how to practice medicine. and that's why the amendment should be voted down, if not i would consider it nongermane because we really don't have a federal employee provision here a political appointee who can

tell a doctor how to practice medicine. i yield back my time. >> further de@@@ employee per health care, what decision will you make? they are going to make in droves. a study shows 114 million people will be shoved off of their private plans on to the government plan. because employers don't want this hassle to begin with. you've set up a bill a very perverse incentive for them not

to offer health benefits to their employees. it's pretty dangerous. and the president found this out last week, the one way that governments controls costs in health care is by rationing care. and-or by reimbursing at a rate less than cost. welcome to medicaid and medicare. so now you have 100 million people getting shoved over on a plan that doesn't quite reimburse at the right rate and now you've got a huge problem and by the way, we used to make up that difference by the number of people on private insurance. oh, that's right. we're shoving 100 million people off private insurance. where does the money come from? so this notion that you can tell people and look them in the eye and say no, you'll get to keep fit you want it. only if your employer offers it. and there's every incentive. talk to your employers back here. talk to the small guys. they can't wait for this to happen because they're going to shove people off of their private insurance. >> will the gentleman yield? >> just a minute. i'm going to tell you another

story and why comparative effectiveness is so dangerous to me. i wouldn't ask my mother or taughter to go into a system that i know would not allow them to survive breast cancer at the same rate that we have the ability today. and that happens. let me give you a great example opinion a 19-year-old presents to the doctor with blood in the urine. healthy 19-year-old, playing football. the doctor's practice comes to the conclusion that person has been jarred. take a few days off of football, you'll be fine. thankfully a doctor in that practice says you know, i've watched this patient for 15 years, something is not right. doesn't seem right. i can't quite tell you, i've reviewed the tests. everyone in the practice says nobody, don't do it. it's crazy. 19 years old. thankfully that woman doctor wins out. that patient goes down and finds out they have bladder cancer. the statistics of that were almost impossible.

had that doctor not been able to act on her hunch and her medical science and history with the patient, that patient would have been dead at 26. that patient was me. i take this very seriously. when you start talking about getting involved between a doctor and patient, this bill will do it. don't kid yourself. this bill will do it. you do it through best practices and comparative effectiveness. it's the only way you can cut costs. they would have said statistically you can't have that person. that person can't have bladder cancer. that person shouldn't have treatment. that's exactly what they do in canada, it's exactly what they do in great britain. it's exactly what they do in denmark. >> will the gentleman yield? >> i like that because it's the general population, it's not that anecdotal story. survival rate is pretty close to 99% with treatment. in those other two countries

total combined is 75. it's the same for breast cancer, cervical cancer and skin cancer. why? because they made the tradeoff we're going to stretch this queen sheet over a king sized bed and we will accept in those countries the fact that some of our young women are going to die of breast cancer. we'll accept that. that's the tradeoff they made. that's the tradeoff this bill presents america. that's why i think if we work together and start saying we're not going to get it. let's not draw that line in the sand, we will not allow a bureaucrat or a politician to get in the middle between that doctor and patient. i yield my time to the doctor from georgia. >> he's talking about the art of medicine. it's not an exact science. and those practitioners of the art who are really good at physical diagnosis and understand patients and

understand what signs and symptoms mean, with this bill, with these -- with this ability for the center of quality improvement to mandate, you take away that art from the practition practitioner. and even more serious maybe than that is those people in our society with chronic illnesses, when bureaucrats are suffering for revenues that's when they're going to deny coverage. this is a good common sense straightforward amendment that lets peel, practitioners of the art of medicine continue to make the final decision. >> gentleman's time has expired. mr. dingell? >> mr. chairman, thank you. i would like to direct some questions to the staff about this. there's a couple interesting words here that concerns me.

first, nothing should be construed. what does the section -- what did you the word section cover? >> it refers to section 931 of the public health service act. >> so it covers the whole public health services act? >> no, sir. section 931 of the public health services act. >> okay, what does that do? >> it's a new center for quality improvement established by this bill. >> all right. and then it says shall allow any federal employee or political appointee who would those be? they would be anybody? it would be the food and drug inspector, could be the secretary of hhs. it could be the administrator of

the social security program. it would be the -- it could be cms? >> it is prodly construed as any federal employee. that includes the commissioner of food and drug or the director or the centers of disease control or the director of the cancer institute. >> so anybody in the fe ral government dealing then with federal law would not be able to do anything that would be construed to dictate how a medical provider practices medicine is that right? >> yes, sir. >> who would a medical provider be? that could be a doctor? >> yes, sir. >> medical provider could be a nurse? >> yes, sir. medical provider could be a doctor on the floor in a hospital who is going to decide

when a person was going to get a particular shot. >> yes, sir. >> would this relate to the handling of controlled substances? >> to the extent that it is other wise covered in this section, yes. >> it relates to food and drug. you can't give this particular drug because it's unsafe? or it's -- or it is outside the approval that has been given by food and drug. is that right? >> to the extent that it is other wise covered by this section, yes, sir. >> all right. now, it could include a wide array of other people. would it include nursing homes? >> yes, sir.

>> hospitals? >> yes, sir. >> could it include laboratories? >> yes, sir. >> could it include anything in relation to billing practices? >> i'm sorry, i don't know. it's about a medical provider practicing medicine. i don't know if that's considered a billing practice. >> could it relate to who is qualified to administer a particular treatment? we have quite a fight going on between the nurse practitioner -- the anesthesiologists and the nurse anesthesiologists. could this relate to the making of a decision in that kind of a matter? >> to the extent that it is other wise covered by this section, yes, sir.

>> so what is a sweep of this amendment. it virtually says that the a administrator, the social security administrator, administration, the head of cms can't address questions like what kinds of activities are permitted to be practiced, whether an individual is going to get a shot at a particular time or not? whether or not steps are take with regard to seeing it that a patient doesn't get bed sores because he or she is not rotated enough? isn't that so? >> to the extent other wise provided for in this section, yes, sir. >> might it also prohibit food and drawing drug from say ang unparticular safe pharmaceutical

can't be used or has to be recalled? >> to the extent that it's other wise provided for in this section, yes, sir. >> mr. chairman, i think we have a dangerous amendment here. probably needs some rather extensive redrafting. i yield back the balance of my time. >> the gentleman yields back the balance of his time. gentlelady from tennessee? >> thank you, mr. chairman. i do support the gene green amendment. i always said how do we ensure access for health care for tennesseans, for my constitue constituents, for americans. and i think that's at the crux of what we are dealing with as we look at this legislation.

now, some of us are very concerned that we have a bill that's going to put the bureaucrat in the exam room between the patient and the doctor. and of course, we have had so many people go through different provisions that have been bandied about, not the written legislation because that made it to us too late, but everyone says the patient is left out of this equation. and certainly when we hear some of our colleagues across the aisle talk about how is this going to be paid for? how is it going to be funded? well, we're going to raise taxes and the wealthy are going to have to pay. small businesses are going to have to pay. we're going to achieve savings from medicare and that's going to be used to helpoff set the increased cost of that national health plan. and those seniors fear

rationing. they're talk about it a lot and i'm very grateful they're talking to us about their fears. they're afraid of losing access. there are so many children that have chronic diseases that need ongoing care. they're very concerned about the restrictions and the caps that are going to be placed on care, that are going to deny those children access to those processes. and i am very grateful that mr. gen green has brought this amendment forward to say look, you can't do that. you can not let a bureaucrat practice medicine and make those decisions. they can not interfere with the practice of medicine. and i am very pleased that he's brought this amendment forward. the amendment deals with section 931.

it deals with the center for quality improvements. i think it's important for us to realize. that you can't have a bureaucrat making those decisions. i'm appreciative of the amendment and of his efforts to make certain that this legislation moves to being something that is patient-centered, rather than something that is going to be more power to the government. and with that, i yield the ball wlans of my time to mr. gen green. >> i want to address some of the questions the distinguished chairman asked of council. i appreciate the depth of his experience. as the gentlelady points out. this is a narrowly drawn amendment. it is applicable to section 931. let me just repeat it.

this amendment would prevent any federal employee'x !"fii%r&r& time. mr. doyle? >> it's always amusing to me when you hear this argument that we don't want to let bureaucrats make these decisions for patients. like the current system is somehow -- let's patients and doctors make the decisions. i would love to see a poll of americans and ask them whether they would like to see someone down here in washington with no profit motive make a decision on what gets paid for versus a bean counter at an insurance company.

because that's the comparisons we're talking about today. mrs. blackburn just said parents fear this bill because of caps on care that's it posed on it. what does it say about annual and lifetime caps on health insurance coverage? >> i believe that other portions of the bill, not division c before us do not allow for annual or -- >> in division a, does it not say that annual and lifetime caps on health care coverage? it bans them in division a. does it not? >> some of the things are taken care of in this bill. >> let's have another reality check here, too. i hear someone say people are going to be forced into this public plan. that company can dump their employees down into this public

plan. number one, it will be probably at least eight years before that can happen and it's up to the secretary of hhs to make that determination, but once someone makes the decision to go into the health exchange, there's going to be a whole list of private companies, as well as one quality public plan. people make the decision.. once their employer says we're going to the exchange, they make the decision what plan they pick and they're going to pick from a dozen plans. they can pick from probably one of a dozen private plans and stay in private insurance. nobody forces them into public insurance. let's at least get the -- you know, get the terms of this debate straight. nobody is being forced into anything. i would rather have somebody here in washington without a profit mode make a decision who pays for my health care than any

bean counter from the health insurance tri. >> would you yield? >> i yeield to the chairman. >> i was hoping you would yoeld to dr. christiansen. i wanted to point out the american medical association has sent a letter in support of this legislation. and it's hard -- the american medical association, and they support this legislation because it is key to an effective, comprehensive health system reform. i hope you yield to the -- >> i would be glad to yield to my colleague from the virgin islands. >> thank you, representative doyle. as a family physician, i'm very adverse to being dictated as to how to practice medicine, but i've read this section 931, section 931 over and over again and i see nothing in there that suggests that anyone in the federal government would have

any authority to dictate to a provider how to practice medicine. and certainly nothing in there that would suggest any kind of rationing of care. in fact, the implementation speaks to what sounds like a voluntary arrangement within a state or region to implement the practices and some insent vising of those entities that enter into those agreements. and so i opposed the amendments. i think a lot of concerns that have been raised are really not relevant to this particular section. i don't think a federal employee would get between the patient own their doctor. >> do you wish to yield to the

colleague that wish ds-- no, no you have time. >> we just had an investigation on this. there are 16 million americans that buy individual policies and what happens when they get sick.. the insurance companies have 1,400 to 2,000 codes which triggers a rejection of their policy because it may cost the insurance company too much money. if you reflect back upon that testimony, the big three insurance companies indicated they save $300 million by rejecting, by doing a post market review. so when you get sick and you submit a prescription, or as mr. rogers said, you have blood in your urine which may lead to something more serious, they automatically reject you. and we asked them to stop the practice of rescinding insurance policies once america get sick. the big three told us no, we're going to continue.

we'll continue and the only way to solve it is to have national health insurance. >> mr. chairman? >> much like the program you put forth here, mr. chairman. so for all the reasons, we should reject this amendment and move on with this debate on more meaningful things and not automatically reject americans who may get ill. >> the gentleman's time has expired. gentleman from oregon. >> thank you, mr. chairman. i move to strike the last word. i just want to make a point about the lewin report, many americans won't have insurance they have today if this becomes law. i was a business lawyer for 21 years and eight months. i sign the front of a payroll check. i understand the cost of health care insurance and providing it. i have evaluated the penalty here on small employers. i can't run a calculation where it makes financial sense for a small employer to continue to

provide health care the way this is crafted. if your payroll is $300,000 a year, your penalty is 2%, if i'm reading this right. health insurance costs are probably 12%. and so i've been trying to figure out all weekend as i've been working through this bill. this is a perverse incentive that will encourage those who are providing health insurance today to stop providing it because it's multiples times cheaper to pay the penalty than to continue to provide and operate under this government mandate. so i think you may not believe that that's what will happen out there and that economics doesn't work in the real world, but i think they do. i think economic principles continue. and i think employers are going to make some tough choices, especially in a down economy. and when they're faced with a mandate, if they go along and this requires them to provide

health insurance for the employee and also the family and pay 72.5%, i believe it is, or 75% for the employee and 60% for the family. if they're not doing family coverage now, that's a huge additional cost under this bill so it's even more of an incentive to pay the 2% or 3% or 4% and opt out. so you are destroying the health care opportunity that's out there today for people who have it through their employer. that's going to go away. everybody is going to be put in the exchange. i yield to the gentleman from michigan, mr. rogers. >> i just wanted to clarify that health care did pay for it then, but it would not have fit the profile under what the government-run care has to do a checklist of things that are approved as a best practice or comparative effectiveness. because it wouldn't by statistic, wouldn't have met their threshold. that's the danger. i'm going to read all of the cancers, and this is put out by

the national cancer intelligence center and the canadian national registry. these are double-digit less survivability rate in those countries because they make the choice of not covering person things. they say they're willing to have people have a higher mortality rate when you get these cancers because they're going to provide government-run care. i'm just going to read them down. prostate, skin, breast, bladder, cervical, kidney, nonhodge kin lymphoma, colon, leukemia, ovary, melanoma, brain, stomach, esophagus, lung and pan korcrea. given what their priorities are, they're willing to have more people die of these cancers in order cover more people. we're trying to cover 15% of the people. this amendment gets right to the heart of this bill. stay out of the patient-doctor relationship. and the only way that they have shown to do it in these very

civilized government-run health care systems is by rationing care. it's the only way they can contain costs. so when you take 100 million people and take them awe of their private health care and put them on to this government plan, guess what? they're going to have to ration care. and how do they do that? they do it with your best practices checklists, and your comparative effectiveness checklist. that's how they do it. we have to set a tone very clear up front if that's what we're saying is true that we won't put up with that in the united states of america. >> i would yield to the gentleman from georgia. >> i want to ask counsel only questions. you' been asked some hypotheticals as it relates to this amendment. i want to ask you specifics as it relates to this amendment. this is an amendment that relates to section 931. is there anything in section 9 1 that would take away the

authority of the fda to regulate drugs or devices? >> under other bis existing statutes, no, sir. >> is there anything under this 931 that would change the regulatory scheme for dangerous drugs for schedule to or three drugs? >> under other existing statute, no, sir. >> not in this? >> no, sir. >> is there anything in this section that deals with changing the scope of practice as to what a nurse or a doctor can do? >> under other existing statutes, no, sir. >> but not under this one? >> i mean to say if there are authorities under other existing statu statutes, they would remain unchanged by this amendment. >> and this amendment would not change any of the law relating to any of those subjects, would it? >> all i'm trying to do is to reserve there may not be current law under these topics. but to the extent there's

current law on the topics that you're laying out, this amendment would not change those other statutes. >> would the gentleman yield? >> time has expired. we'll go to the democratic side. ms. eshoo? >> on this issue of caps, if you read the bill, the lifetime limit on caps has been lifted. and this is a very important provision in the bill. back in 1996, i introduced legislation and called at that time christopher reeves who was still alived and asked if he would allow his name be placed on the bill. he was obviously a very good example of someone who incurred something that was catastrophic. most people don't realize what's in their insurance policies. where this is acutely

experienced and felt is in the disabled community. and so i think it's important to note that has been cured in this bill. members have made reference to the lewin report. the lewin report was written months before this provision became part of the underlying legislation. and i think it's also important for members, if you don't know this, you'll find it interesting. if you do, it's a refresher. and that is the lewin organization is owned by united health care. the united health care came before the investigations and oversight subcommittee said no, we're not changing our practices for rescission. so come on. let's get our facts straight. i know we have philosophical differences. they should be debated and debated really well, but we need

to deal with the facts. when you're talking about caps, the caps are no longer going to be in existence and i think the american people are going to be 1,000% better off as a result of that. thank you and i yield back. >> mr. blunt? >> i wanted to debate the amendment here, but since nobody wants to do that, i guess that would be out of character. this amendment deals with federal employees, not directing insurance companies but directing medical professionals. my guess is most americans would not like a detached bureaucrat that had a bad day the day before to make that decision instead of their doctor. that's all this is about. there are other sections of the bill that deal with insurance companies. in fact, i think you would find substantial across the whole

committee interest in making the insurance system more competitive, making it more responsive. competition has impact on price. the way the current system grew up, it grew up to where you really@@@@@@' people would leave their insurance. on this bill they said 114 million to 125 million. that study was less than two weeks ago. i realize this bill was less than two or three days ago, but

it was pretty close to this bill. it's hard to score this bill when you don't see this bill. and then to have this thrown up to us, nobody has scored this bill yet, that they scored a bill two weeks ago instead of this bill, everybody believes that if you have a public competitor that is somewhere near medicare, that the private competitors would get smaller and they will eventually go out of existence. this is a debate about whether a federal bureaucrat can dictate to a medical provider, medicine practice decisions. 's about best practices. it's about federal bureaucrats and medical practitioners. we can have a debate on all the parts of the bill we want to. i would hope that this committee would decide that the doctor-patient relationship is more important than the bureaucrat patient relationship. and i support the amendment.

>> i would yield to the chairman. >> i thank the gentleman. i reiterate what congressman blunt says. this is about the practice of medicine. that's what this amendment is about. i would use the word innocuous. if i asked for a show of hands, how many people think somebody in washington should tell your doctor how to practice medicine on you, i don't think anybody would raise their hand. i wouldn't raise my hand. i don't want my doctor to be told how to practice medicine on me or my family. that's all dr. gingrey is trying to do. >> would the gentleman yield? >> if i'm allowed to second-degree yield, i'll yield, sure. >> i think the difference in the argument is who is standing between patients and their doctors. >> we don't want anybody to stand between their patients and doctors. >> we believe that insurers do

time and time again. i haven't met a -- over the phone a really publicly, pleasant welcoming helpful bureaucrat from an insurance company. i have to tell you that. i dealt with a lot of them when i still had my mother and father. this idea that there are just bad guys in the government and good guys every place else, i think it's just overly -- >> reclaiming mr. blunt's tame ti -- time for me to use. i have unfortunately because of health problems i've had in the last three or four years been in several examination rooms and even a few hospitals with various ailments. i have never had an insurance agent in the examination room or in the hospital room when my doctor or doctors were in there trying to discern what was wrong

with me and then what to do about it then implementing their strategy. again, if we want to have a debate about insurance companies, i have a feeling some of us on this side would -- in fact, i know i support mr. stupak and his investigation. but this is about doctors practicing medicine. if you think the doctors should be able to practice the best medicine he or she knows how on you or your family, vote for dr. gingrey. if you don't think they should be allowed to, vote against him. it's that simple. >> is there further debate? >> mr. chairman. >> i would like to ask my good friend from georgia a question. isn't it true the harm you're trying to prevent with your amendment is already prohibited by the tenth amendment to the constitution?

>> well, if you can explain to me what you mean by that, explain to me what you think the tenth amendment says in regard to preventing harm. >> absolutely. the tenth amendment to the constitution reserves to the states all rights that are not specifically spelled out to the united states or that aren't prohibited to the states. and we all know that right now the practice of medicine is regulated in all 50 states. so in your amendment, you're trying to prohibit a practice that's already prohibited by the tenth aelt. isn't that correct? >> the gentleman yielding back to me with regard to that. and i thank him for the question. i guess then the gentleman would for the first amendment offered by my colleague from georgia represents a deal. the ranking member of the health subcommittee when he brought up that point maybe an hour ago. the fact that the states have

that right as protected by the tenth amendment. but we heard general counsel say that absolutely under this bill that the states could be preempted by -- under this section by the center for quality improvement. it says, el, awell, all plans ho cover certain mandates maybe including abortion coverage. i'm glad you asked me the question, quite honestly. >> i'll reclaim my time. i think the bottom line is that the purpose of the amendment is already protected under the constitution because nothing that we do in a federal statue can interfere with the constitutionally protected rights of the state to control the practice of medicine. that's the way the constitution applies to the practice of medicine right now. i want to taunt about the issue of comparative medicine research.

i want to share with you a situation that conveys why comparative effectiveness research is so important. in 1981, a well known doctor, working as a fellow at dana farber cancer institute in boston developed an experimental breast cancer therapy. dr. peters came here and probably presented a presentation to some of the members of this committee and said if they did not pass approval for this experimental treatment, that 70 breast cancer patients in the audience, half of them would be dead in a year. and he told members of congress, as you look at a woman across the table from you, ask yourself is the price of this woman's life worth the price of a luxury car? well, here's the rest of the story. dr. peters worked with another physician named craig henderson at dana far bber. and he warned dr. peters from

accepting high-dose chemotherapy without validation. and he was ostracized by his warnings. and yet dr. peter, the one who invented this treatment became concerned enough that in 1991 he convinced the national cancer institute to fund a clinical trial to make sure that his treatment was safe. and that it was effective. so five clinical trials were presented in the summer of 1999 at the annual meeting of the american society of clinical oncology. those five clinical trials found no advantages in outcomes between conventional treatment and high dose chemotherapy with bone marrow transplant. so what was the price? well, roughly 42,000 women, 30,000 in the 1990s alone were subjected to the risk of this entirely experimental treatment. $3.4 billion was sent on the procedures and they later determined that 9,000 of those patients died not from their cancer but from the treatment

that they hoped would be their cure. that's why comparative effectiveness research is important and that's why it's important to make sure that we have it in this bill and that it is unbiased and people can rely on it. >> are we ready for the question? we've had a lot of debate on this amendment. who seeks recognition? >> i do. >> mr. hall. i would ask you, if you would to yield for others who are seeking recognition on your side. >> i don't think i'll take my full five minutes to say what i want to say. i guess i'm going to do what you tell me to do. >> mr. hall, you're recognized. you have your five minutes. if you don't use it all, yield to others on your side. >> we talked about the tenth amendment and all that. even the second amendment. just 27 words and there have been millions and millions of statements made about it. this amendment is so simple that

there's not a high school kid in the united states that couldn't understand it. and here we are, we've talked almost an hour and a half, maybe two hours on it. it simply says nothing in this section shall be construed to allow any federal employee -- now think about a fet federal employee first -- or a political appointee, get him over here or her to dictate how a medical provider -- he's in the middle -- how he practices medicine. well, you' read that. is there anybody that doesn't understand wra what thhat that ? you have to construe the act based on the most simple medical practice. that's delivering a baby. or the most severe or serious medical practice, a coronary bypass. i just wonder who would be the most capable federal employee of here. probably the architect of the

capitol. he may be. i don't think you want him making any kind of decision like that. who would be the greatest political appointee. i don't think it's the guy who has control of the trade for all the other nation in the world. he's from dallas, texas. a very smart guy. i don't think you want him telling your doctor. the sque would you want any federal employee to tell dr. coburn, senator coburn over here, delivers babies. goes back to oklahoma every week and delivers baby, would you want the architect of the capitol telling dr. coburn how to deliver a baby? i don't think you would. would you want any political appointee, any of them -- pick any of these that obama has appoint pd would you wathe woul of them how a coronary bypass would want to be done? that's absurd and ignorant. reread the construction here. nothing in this section shall be construed to allow any federal employee, any architect or political appointee to dictate how medical provider, that's dr.

cobu coburn. it's that simple. and i don't know why we have all the problem with all this, if you're trying to knock insurance companies. of course insurance companies try not to pay losses. they -- the plaintiff's lawyer is trying to say an ingrown toenail makes him total and permanent. but the medical doctor sometimes will testify that if you had a leg off it might grow back. that's just law business. here it's so simple. anybody in the world ought to read this and vote aye on the amendment. i yield back my time. >> when i was a state senator. i wrote the patient bill of rights. that was to deal with the issues with managed care because insurance companies were making a lot of decisions.

and having people who did not practice medicine take over the decisions of medicine. the government is going to get into the insurance business. we have to understand if that which is not specifically forbidden is permitted, this specifically fored byes it other wise it would be permitted. i would hope my colleagues be cognizant if the government wants to get into the insurance business, we should make sure we do not repeat the mistake that occurred before with managed care. >> gentleman yield now to me, mr. hall? mr. hall? >> yes, mr. chairman, i yield back my time. >> why don't you yield to mr. boyer. >> if, in fact, we're going to have the center for quality improvement that will set, quote, best practices, will it be setting standards and thereby having an impact upon medical liability that uses community

standards? >> mr. buyer, the provision in this section is to identify best practices. it does not have an ability to set enforceable standards for any practitioner. nor does it have the authority to set community standards for liability concerns. there's research to figure out best practices. >> i think that's helpful to us. none of us want anything to come between our doctor and a patient ore ourselves. and that's what mr. gingrey is about. we don't want there to be a government board that's going to mandate these standards. you're telling me that's not in this law. well, then everybody should support gingrey's amendment. >> i'm not going to yield back

to anybody else. i just want to simply close with rereading this. nothing in this section shall be construed to allow any federal architect or any political appointment, the secretary of the treasury to dictate how medical provider practices medicine. read it and then vote. >> the gentleman's time has expired. are we ready for the vote? first i want to enter into the record and make unanimous consent this report from the louisiana state medical society that just came out opposing this legislation be entered into the record. and i quote they say, a number of reasons they cite, but they say finally the most radical of the bill's provisions, the public plan option is clearly against louisiana state medical society policy, which is in option to a national single-payer health insurance system. it represents a gateway to a vast expansion of government

control of the nation's health care system and is the stocking horse of a thriving competitive insurance marketplace. so clearly, you know, maybe what we touched on is a nerve here that's a debate. but the biggest concern we've expressed over a government-run plan is looking at the history of the other countries that have this. you look at canada, you look at england. the first thing they've sdoen they've rationed health care for people in their countries. >> the gentleman yield to me? >> i would yield to the cheryl. >> you don't think we have rationing in this country? there are people who can't get access to any medical care because the insurance companies won't insure them and they have nowhere to go. >> you chaublgly tax those people that are uninsured and the congressional budget office said you impose $29 billion in new taxes on people who are currently uninsured. that's on page 167 of this bill.

you're taxing people. the congressional budget office said $29 billion for those who are uninsured. >> do you support the amendment? >> i do. it shines light on the fact that this is going to ration care. i'll show the organizational chart of this bill. if anybody can show and say that government isn't interfering between the doctor and patient relationship, then you haven't see. this is the patient and this is the doctor. these are all the bureaucracies being set up in this bill that get between the doctor and the patient. it's in the bill. what dr. gingrey is doing is remove all these federal bure ratth democrats away from the relationship so that the doctor and patient can choose what's best. instead of what canada does and england does. we've got those experiences. we see what they do. and i would be happy to yield to my friend and doctor.

>> i thank the gentleman for yielding. i want to bring up a point regarding his point about the louisiana medical society not supporting this bill and their concerns over the public option. ly tell you that my state of georgia feels the same way, and is leading a coalition of about 16 other states that are all part of the american medical association that do not support this bill because of the government option. and so it -- you know, the chairman mentioned and others have mentioned the support of the ama. great organization, represents about a fourth of the physicians in the united states. so, you know, i don't think that speaks to all of the practices doctors. but let me just say this, as we come to, i think, near a conclusion of this debate, mr. chairman, on my amendment. the arguments that i have heard in the last 30, 45 minutes from the other side is nothing but an

attack on the insurance industry. look, we can agree with a lot of things in this legislation. certainly ending this practice of rescission of a policy after a person is in the hospital on the operating table, because some technical glitch in the way they filled out their application, they're denied coverage. we agree with that. we agreed with most of the insurance industry reform that's in the bill. not deny coverage for pre-existing conditions, community rating. we agree with the need for electronic medical records, transparency. we agree for equalized trax treatment over the purchase of health insurance so that individuals and people that are employed in a small company get treated fairly. we agree with all these things. but the problem as we reform the insurance industry is we are morphing into a situation where we have a new insurance company

that needs to be reined in. and that insurance is the federal government. boss hogg telling -- i yield to my friend from arizona, mr. shadegg. >> will the gentleman yield to me for a question of mr. gingrey? >> i yield to the chairman. >> yes, mr. chairman. >> i want to know, since we've already had medicare in operation for a very long time. has medicare told the doctor or any bureaucrat at medicare told the doctor how to practice medicine? dictate how medical providers how to practice medicine? has that been your experience? have you had problems about that? >> mr. chairman, no question ability it, they do that by forcing the doctors to, you know, either accept medicare,

accept assign. or have their reimbursement cut -- >> that's not the practice of medicine. that's the practice of reimbursement. your amendment goes to the practice of medicine. we have a government-run medical program for seniors called medicare. it's been in adopted since 1965. does medicare tell doctors thousand practice medicine? >> absolutely. medicare denies coverage. >> of course they can. >> the gentleman's time has expired. let's proceed to the vote. all those in favor of the gingrey amendment say aye. those opposed say no. the nos have it. roll call is requested. let's go to a roll call. >> mr. waxman? >> no. >> mr. dingell? >> no. >> mr. dingell votes no.

mr. markey? >> no. >> mr. boucher? mr. pallone? no. mr. gordon? no. mr. rush? mr. rush, no. ms. eshoo? ms. eshoo, no. mr. stupak? >> no. >> mr. stupak, no. >> mr. engel? >> no. >> mr. green? >> no. >> mr. green votes no. ms. degette votes no. >> ms. capps? votes no. mr. doyle? mr. doyle votes no. nz harman? mst schakowsky? >> no. >> no. mr. gonzalez? mr. gonzalez, no. mr. inslee? mr. inslee no. ms. baldwin. >> no.

>> ms. baldwin, no. mr. ross? >> no. >> mr. ross, no. mr. weaner? >> no. >> mr. weiner, no. mr. matheson? mr. matheson no. mr. butterfield? >> no. >> mr. butterfield no. mr. melancon? >> no. >> mr. melancon, no. >> mr. barrow? >> aye. >> mr. hill no. ms. matsui? no. mrs. christiansen? no. ms. castor? mr. sarbanes? no. mr. murphy of connecticut? >> no. >> mr. murphy, no. mr. space? >> mr. space votes no. mr. mcnerne sgl no. mr. sutton? >> no.

>> ms. sutton, no. >> mr. brale y? >> no. >> mr. braley no. mr. wellch? no. mr. barton? >> aye. >> mr. barton aye. mr. hall? aye. mr. upton, aye. mr. sterns? aye. mr. deal, aye. ms. whitfield, aye. mr. shimkus? aye. mr. shadeg, aye. mr. blunt votes aye. mr. buyer, aye. mr. radanovich, aye. mr. pitts, aye. ms. bono mack, aye. mr. walden, aye. mr. terry? >> aye. >> mr. terry, aye. >> mr. rogers? >> aye.

>> mr. rogerser aye. mst myrick? >> aye. >> mr. sullivan? aye mr. murphy, votes aye. mr. burgess, aye. ms. blackburn? aye. mr. gingre sgl. >> aye. >> mr. gingrey, aye. >> mr. scalise? >> aye. >> mr. scalise, aye. >> have all members responded to the call of the role? if so, the clerk will tally the vote. >> mr. chairman, there were 24 ayes and 33 nos. >> the amendment is not agreed to. we have votes now on the house floor. we will take a recess and i urge members to return to the mark-up

as soon as we complete the last vote on the floor. >> mr. chairman, what time do you think we're conclude this evening? >> we'll go, i think, till 11:00 or 12:00, maybe longer if we're going to take this much time on every amendment. >> i just need to know how much coffee to drink, mr. chairman. >> stand in recess.