hollywood. although she doesn't make an issue of it, but when it comes up he says as a line producer you get to hire a large number of people. he hires the best people at the best price he can get, and he has been accused of the usual things, of discriminating against people. he was working on a film which was essentially a black film and hired a crew of equal number of blacks and whites and was told to hire an assistant director who was black and he hired a white guy because he was better qualified and got him at a better price and so i asked him this must have cost you work and he said i sure it has. but at the end i have to live with myself and with what i tell my children and if i don't get to work on spider-man vii that isn't the worst thing in the world. >> host: that is a great closing line. ..

>> i think people on the left can profit from reading it. it's noting a ignorant book, it doesn't call names. it's funny. so it's a great book to take on a flight, read in bed, or

michigan to yell about at the dinner table. good luck to you. thank you, harry. >> guest: thanks for have egg me. >> editor michael avery discusses the book "we dissent," which criticizes the decisions of the rhenquist court. it's an hour and ten minutes. >> good afternoon, i'm thrilled to see our students here this afternoon on the friday afternoon of the last day of classes for our winter quarter, so you're you've to exam studying all weekend, i'm sure, but this will be a good transition to that wonderful task, because we're very privileged today to have two of the nation's leading lawyers and law professors who do a very important civil rights litigation, we have with us

michael avery from the the suffolk university of law, and michael has done a number of really interesting things in his life, including a three-year term as the president of the national lawyers guild. he served as president of the massachusetts lawyers guild. [applause] >> he had a dream job as a public interest litigator, being the head of the aclu litigation project? the state of massachusetts. iget get they're a commonwealth. so it shows that law professors can really do an interesting mix of theory and practice. we also have david rudovsky with us. david practices law with his good friend, david cary and paul messing, among others, both

always allovers, david carey is a distinguished member of temple paw school, and paul messing has been a teacher of trial advocacy at both rutgers and temple for men -- many years. it shows that professors can be in the real world as well. i'm embarrassed to be around david rue rudovsky he has a publication record that puts most professors to shame. he has published a number of articles in the university of pennsylvania law review, the university of illinois law review, and i first got to know his scholarship when he wrote a chapter in a very famous anthology on critical local

studies called "the politics of law." and for the students, if you want to get a good introduction you, i recommend you to look at that book. today we're going to be discussing "we dissent," which michael edited and has a chapter in it, as does david. we're going to discuss judicial selection under the new administration, which we would be starting with the supreme court sooner than we would like, but certainly is on our minds. in the law professor can world you can't do better than the other authors in the anthology that michael put together. one of the co-authors is jamie raskin. for those who serve in our marshal brennan program, that was invented by jamie. he is a great professor at american university school of

law. abbe smith is another one of the co-authors the book, and she visited us earlier in this academic term because she is the author of a wonderful book called "the case of a lifetime," another one of the coauthors -- it is a small word i-is eva pat pataki at -- patterson. she was the president of the student boding at northern. she was the first african-american president of the student body and was a law professor at the university of california at berkeley. so what a team you put together for this book. we're very interested to hear about the chapters you wrote and your colleagues wrote, and also hear about your views on appointments to be made. i guess the latest i saw is

there may be as many as 20 court of appeals vacancies already out there on the plate. so we're poised for a very interesting series of appointments very early on in the new administration. so, go to it, and very pleased that you're here. [applause] >> thank you very much for that very nice introduction. i want thank the philadelphia chapter of the lawyers guild for hosting this event and for inviting us to speak, and to thank drexel law school for having us here this afternoon. i want to start by talking a little bit about the federal judges that we have now, and then tell you a. bit about "we dissent" and then

i will close my portion by talking about the kind of judges that i think president obama should appoint to the federal bench, and then david will talk about some of the other chapters in wow be dissent," and we happen to leave as much time as possible for questions about the book or nomination of federal judges. george w. bush has now appointed approximately have the judges on the bench. his last major speech before he left office, in ohio to the federalist society, was a speech in which he talked about what he perceived to be his contribution to the federal judiciary and appointing these federal judges. the supreme court under chief justice john roberts can now be relied upon to protect business interests against legislation designed to protect workers,

consumers and the environment to halt the judicial expansion of personal liberty interests while expanding the protection of property, upping the antiat the on pleading requirements, stand can requirements and statutes of limitations. to weaken boundaries between church and state, and the lower federal courts are even more strongly in the green of conservative judges. it's important to understand this conservative movement in the law is not the work of one man, even the president of the united states. it's the result of decades of organizing and political strategy. all of the judges that were appointed by george w. bush were either members of the federalist society or were approved by members of the federalist society. many of the cases that the

roberts course decided in the first two terms of chief justice roberts' ten our are conservative rulings that were the result of litigation brought by conservative public interest law groups. and the conservative legal arguments that have been adopted by the court were first initially articulated by conservative legal scholars. so, if we think about it, the issue facing us today is only in part what president obama will do or should do, much more importantly it is what the progressive legal community will do to return the courts and the law to the service of human rights and constitutional principles. a long time ago, really about ten years ago, i had the idea of doing this book. this is the book. we have chief justice rhenquist on the front to remind us of his

contribution to american juris prudence. it took me a long time to get to do the book. the reason i originally wanted to do it is because i was struck by how many case were being decided by the court announcing very, very conservative prims of -- principles of law with either know disseptembers or very woke dissents. how many case were being decided by the court in which really no principle legal theory of a progressive or liberal nature was being articulated by any of the justices. the other reason that i wanted to do this book is because, after all, the law does not belong to the supreme court. it's an important aspect of our system of checks and balances and separation of powers that the supreme court has the last word on what the law is, and i firmly believe in that

principle. as compared to, for example, what dick cheney believes in, which is that sometimes the president has the last word on what the law is. i don't believe that. i think the supreme court has the last word, but the law doesn't belong to the supreme court, and anybody in society has the right to disseptember -- disseptember from what the supreme court is doing, and i wanted to put together a book which would show what some of the civil rights lawyers in the country and what some of the constitutional law professors in the country would do if they were on the court, what a progressive legal vision would be like if decisions on the court were written by truly progressive people. if we think about how the court might change, what we would do if we were going to change the supreme court, what president

obama might do if he were going to change the supreme court, or what our vision in "we dissent" is like, why divide that into two questions. first of all, what should the judges be like? what sort of people should the judges be? and, secondly, what sort of vision should they have about the law? what sort of substantive legal questions are particularly important right now? first, as to what sort of people the judges should be, have a very simple test as to who should get to be a federal judge. i call it the kleenex test. this is the clean cleanesque test. did you have to keep a box of kleenex on your desk because the people who came to see you were

scared and frightened and cried about their legal problem? if you didn't, you flunked the kleenex test and you don't get to be a federal judge. if you pass the kleenex test, you might not bet to be a federal judge either because passing the kleenex test doesn't necessarily qualify you, but flunking the clone ex-test disqualifies you. right now on the supreme court we only have one justice who could possibly pass the kleenex test, ruth bader ginsburg. we have a judicial system which is populated by an elite, people who are out of touch with ordinary americans, people who have no sense of what it means to have your constitutional rights or your civil rights violated. if we put the kleenex testifies

in place we might get legal aid lawyers on the federal bench, might allly get labor lawyers. when i say labor lawyers i mean people who represent unions, not people who represent the management side. we might get people who represent battered women, people who rent the detainees at guantanamo. we might get people like that on the federal bench. and that is what we need. and by the way, i think president obama has some sense of this. president obama said in a speech to the league of women voters, we need somebody who has the heart, the empathy, to recognize what it's like to be a young teenage mom. the empathy to understand what it's like to be poor or african-american or gay or disabled, or old, and that's the criteria by which i'm going to be selecting judges. now, as i said, just because you

pass the kleenex test doesn't mean you get to be a federal judge. you have to be intelligent, well schooled in the law, have to have an appropriate judicial temperment. you have to be fair-minded and there's some substantive legal problems we have right now as aa result of the conservative judges appointed to the bench by the spring republican presidents we have head and the groups like the federalist society have made to influence the appointment of federal judges and those problems need to be addressed. david and i can give you a list of 100 problems but we don't have time for that so i'm going to pick three problems, that i think are among the most important problems we have, and i'm going to describe those problems, and those happen to bes' of the problems we addressed in the book. the first problem is we need judges who will respect

legislation passed by the congress, who will respect the democratic process, who will respect the fact that a majority of democratically elected legislators have enacted media legislation to address problems consumerses have to address problems the environment or working people have, and judges who then won't make up, who won't make up out of whole cloth 11th amendment arguments, 10th amendment arguments, standing arguments, statute of limitation arguments, to shoot down legislation passed by the congress. the led better case is a perfect same of what i'm talking about. a statute of limitations argument that was made up out of whole cloth to shoot down a perfectly good remedial piece of legislation. the first chapter in the book is written by erwin chemerinsky,

the dean of the irvine law school of the university of california, and it's a case about probation officers in the state of maine who were not paid overtime. the state of maine owed them overtime pay so they filed lawsuit under the fair labor standards which allows people to get overtime pay, and the supreme court ruled they couldn't get it because sovereign immunity prevented the state courts of maine -- they sued in the maine state courts -- present evented the courts from enforcing the federal statute. sovereign immune not, which was thought up by the english kings. who would think that this experiment in democracy at the end of the late 18th century would import into this country

this doctrine that was dreamed up to protect the english kings. there's not a word about it in the constitution. it's remarkable that these conservative originalists, this textualists on the supreme court would come up with this doctrine, and professor chemerinsky does a great job of demolishing their argument. one of the things that is fascinating is the conservatives have hijacked democratic rhetoric in the debate about judges in america. they talk about activist judges. who are the activist judges? the active gist judges are the judges like the justices on the rhenquist court who strike down legislation enacted by the congress that is meant to solve some of our social problems by making up legal doctrine like they did in oregon vs. when out

of whole cloth. we need judges to restore a sense of accountability of the the government. the rhenquist court acted like it was the role of the constitution to protect the government from the people instead of the function of the bill of rights to protect the people from the government, which is the reason that the framers passed the bill of rights in the first place. the civil rights act,en acted in 1871, 42 united states code section 198 , was enacted to give us a remedy against the government. and government actions when they violate our constitutional rights and civil rights. there have been a series of doctrines, absolute immunity. qualified um minute. made up by the judges. not in the constitution. not in the statute. craft out of whole cloth by the judges. to cut away at the protection that the civil rights laws give

us. the conservative like to talk about originallively. they like to say, let's interpret the constitution the way the drafters originally intented it to be interpreted. i would like to talk about originalism but i would like to talk about interpreting the 13th example the 14th and 15th amendment and the civil right statutes that were passed by the reconstruction congress the way they were originally intended to be interpreted. i would like to see the civil right statutes given their original meaning and i think that the president should appoint some judges who will give that legislation its full fours and restore accountability to government. and finally, but certainly not least important, probably this is the most important -- i think that president obama should appoint judges -- and again, this is something that is addressed in the book, in one of the best chapters in the book, should appoint judges who have

an understanding of race in american society today. it's long past time for the united states supreme court to come to some sophisticated understanding of race relations in america and to develop an understanding of race in the law that makes sense. for sandra -- sandra day o'connor to talk about maybe in 20 years we won't need affirmative actions anymore because the problems will be behind is us preposterous. this notion of a color-blind constitution is a fairy tale about life in america which is destructive, it's destructive of our legal system, it's destructive or our social system, destructive of relations among citizens and it's time to set it aside and talk

realistically about the role of race in our society. in the book, one of the chapters is by eva paterson, who the dean mentioned, and her colleague, susan serrano from the equal justice society in san francisco, and they suggest it's time to overrule a case called washington vs. davis. it says if you're going to prove violation of the equal protection clause you have to prove there was an intents on the part of in the the government to discriminate. it's not enough to prove that minority groups are treat adversely, that government rules or regulations or laws treat people unfairly as a result of their race or gender. you have to prove that there's an intent to discriminate, and what they say, so eloquently in this chapter in the book, is that intentional discrimination is not what it's about at this

point in america in terms of race relations. we are dealing with institutional racism. we're dealing with up conscious discrimination. we're dealing with things like charles lawrence described about unconscious racism. it's time to develop an understanding how race works in our see site and develop legal tools for doing that and the supreme court has been light years away from doing that. we tried to show you a little bit about that in the book. there are many people capable of understanding that and writing about that, both civil rights lawyers and professors in the united states, and i would love to see president obama put many of them on the bench. so, with that, i will turn things over to david, and i thank you all for coming. [applause]

>> it's great to be here. this has been a long-term project. they've been talking to me about this 10-12 years ago about some book that would particularly highlight cases that most people don't know about. i mean, the major cases on abortion, on gay rights, school dedid he go degree great lakes they get the headlines, guantanamo, and people have some sense of it. but there's another whole line of cases many of which were addressed here which impact people on a daily basis almost as much as the headline cases, which are important, and which as michael says, over the past 25 years really starting with the burger court and rhenquist court and now with the new chief justice, at this point, really

under the radar screen, and as i talk about where the court is, justice stevens who is describe as right to liberal, and he is on this court, in interview after interview he says, people think maybe he has changed? he was appointed by president ford, he was a republican court of appeals judge on the seventh circuit. middle of the road moderate. he said i haven't changed. it's everybody else that change. nothing happened other than many more conservative judges have been appointed, which i think is true. i want to talk about just briefly three of the chapters in the book. there were eight or nine cases we developed where people write dissents and they track some of

the issues that michael talked about. the first one is a case called saucier vs. katz, if you're involved in constitutional litigation you don't know about. it deals with a doctrine called qualified immunity. there's a federal statute, section 1983, which allows people whose civil rights have been violate violated to go to federal court and sue government officials. federal officials is under a different theory, but the theory if there has been a wrong done, constitutional right infringed because the police arrested you without probable cause or you were fired because of your race, this statute, passed right after the civil war, gives an individual the right to go to court and claim damages and maybe get injunctive relief, to put them back to where they should have been. the statute has been limited in

many ways. the most significant way is by this doctrine of qualified immunity. and what is this doctrine? this is a doctrine which basically says if an officer does something wrong and even if we determine that the officer has in fact violated your rights, arrested you without probable cause, went into your house without a search warrant, used to much force, whatever it might be, police, prison officials, whatever it might be, even if you can prove the constitutional violation, enif you can show that the officer violated your rights, you cannot collect damages against the officer if the officer could have believed that what the over did was constitutiona. the doctrine in effect says that unless the law was absolutely clearly established, if the officer acted in an area where a court later says maybe it wasn't that clear that what you did was illegal, then the officer cannot

be sued. you cannot be compensated, and unless you have some other remedy, which is very difficult, you can get no compensation. saucier verse katz is a good example how pernicious this doctrine and is what damage it does to the people, because almost all constitutional rights require a showing that the government official did something wrong, knew they were doing something wrong, acted in a deliberate fashion. certainly to prove race discrimination you have to show intent to show in saucier in katz, a person was arrested and claimed the police used too much force during the arrest. well, the test for excessive force under the fourth amendment is whether a reasonable officer would have used that amount of force, given what the suspect was doing or what kind of

resistance there was, and the test itself is very favorable though police officer. the courts say we're not going to engage in monday more than quarterbacking, these incident happen very quickly. we give the officer the benefit of the doubt. if there's a doubt how much force to use, we let the officer you the force he or she thinks is reasonable even itch was too much. that's fair. so saucier is a case in which the court assumed that they force used was unstational. for whatever the police were using force, the person wasn't resisting. in comes the doctrine of qualified immunity. ...

>> if the officer loses on that they can then say but its given the state of the law and the different facts i was not so sure i should be given on that side by the court talks in those terms now it is not probable cause is arguable

probable cause. it is not excessive force but arguable there is enough to force used. in many, many cases, hundreds or maybe thousands are defeated on this doctorate in many people do not know about it. and it the danger there is not simply that the individual chooses compensation when they should have gotten it too but since the doctrine is applied across the board and those of you who read the most recent case on the exclusionary rule last couple weeks were the court seems to be moving in the same way to exclude evidence in a criminal case when the police violate the rights it is a good faith defense a as opposed to a particular case. the standard seems to be across the board in criminal cases and civil cases as far as officials are concerned they are 0k they did not have

to appear to constitutional standards they can be one or two steps below. with no sanctions. they are not stupid they know the standard that applies. i do not have to follow the constitution i can discounted buy three steps and when you talk to police and prosecutors and lawyers it goes on all the time should i get a warrant to it should use force? should i dismiss this employee for perhaps as a political organizer they no longer think what is the standard they are not thinking i will not be held accountable unless it is really egregious and really terrible so there you have it and it saucier was a classic case along those lines. you will see how he wrote the defense in the book because the supreme court did not do a good job and now business is

there to protect government officials from not being vigorous enough for enforcing fell lot a and it really is quite pernicious in operation. that is one example from the notion of both accountability and the bill of rights meant to protect us or government officials. the second case this is very interesting and has a dramatic consequences particularly in the war on terror atmosphere we are in. the case that did not get much publicity when decided called chavez vs. martinez. this also was a civil rights suit bought by someone who suffered significant damages and a the issue was in this case not the immunity but the scope of the right against self-incrimination. this was a case where the

plaintiff, there was an incident and the plaintiff wound up getting shot five times and not even charged with any criminal offense and taken to hospital, in an emergency care, five shots, life-threatening injuries come a very serious pain, excruciating pain as the court notes, partially blinded by the wounds to his face, in and out of consciousness the police come to a hospital because they wanted to interview but interrogate the doctors say you cannot but they come in and say that we must and they hold him hostage unless you talk to was you will not get medical treatment this goes on and he is in pain is saying i cannot talk to they say you might get medical care that doctors are trying to get them out. they do this and the interrogation goes on for a period of time and they file

levy for carol and day tape-recorded so we actually have in this chapter that is written on the descent which should have been written but was sent what went wrong. so the claims among other things claims damages for the course if interrogation which amounted almost to torture what was going on. this person is suffering severe pain you not get medical attention until you agree to talk to us forget about paint you don't have to talk to police under any circumstances. you know, all about your miranda rights. remember what happens which is a little unusual, he is interrogated does not incriminate himself and he is never charged so the police

never end up using the results of that interrogation normally you fight over of that was a voluntary conversation and now we're in a criminal context they say you cannot use that it was obtained here is a totally innocent person sometimes they have fewer remedies and guilty people sometimes to go to court get the best evidence city is not there so he sues in a straightforward way you violated my fifth amendment right to interrogated me that amounted to torture and ibm entitled to damages but the case goes to the supreme court and its rules that yeltsin may have been sent congress a and they'll use the word torture bet they do agree that it is the on voluntary statement, we agree with you on that and that the prosecutor had gotten that far and use to you would have a claim but in the

accords infinite wisdom they interpreted the fifth amendment until a statement is introduced in court there is no violation of the fifth amendment the police can interrogate you and torture you in mislead do and use any tactic they want, no violation of the fifth amendment because it only protects against the use of a statement in court against you. think about that. what is the privilege against self-incrimination? we have a privilege not to talk to government officials and a variety of circumstances. if they stop you use it i do not want to talk to but according to the supreme court if the police persist as then use a coercive means to get you to talk there is no remedy. year in 20032 years after 9/11

what is the government's position? and we are not so much worried about prosecuting people but concerned about information, data coming information from alleged terrorists. if no one cancer due to putting aside all the problems it is the answer mandible but what the court says is what the government can do is to course of fleet interrogate you, almost a point* of torture and in the case of defense it probably is close to torture notwithstanding international of covenants and a treaties against using torture, you have no remedy. there is no claim you can make in court because there has not

been a constitutional violation. i have to say that by the end of the opinion five justices on the court have eight split opinion on dissent in a clear majority says there is no fifth amendment violation but when you count the has they say is there may still be a due process notwithstanding there is not a fifth amendment claim there may be a due process claim but remember it pass to shock the conscience of the core which is the highest standards a plaintiff can be called to meet so the the the door open but only for the most egregious cases. factor in the qualified immunity and it is almost impossible even the most egregious case to prevail on that kind of claim. the third case to talk about

briefly then i want to open it up, it all of these are so interesting. the law students, we may work with them vocationally depending on the work that you do but it is not the headline grabbing cases, the third may be the most important in terms of the large and recital applications. this is a chapter written by abby smith hear a wonderful carell defense lawyer who runs a clinic on criminal defense and used to be with the public defender here in philadelphia. she writes about a case that probably nobody recalls by the name strickland vs. washington that was a five-- decided in 1982 by the supreme court that the first time the court justice o'connor had to address the question of what it means under the sixth

amendment to have a right to counsel other than a war buddy -- warm body it sitting next to with a law degree. in 1961 if you are charged with a serious crime you have to be appointed a lawyer and gideon is the case that once you to be a lawyer. you should read that book tedious trumpet which is a wonderful account of that case and how the supreme court took it. nobody can be tried unless you have a defense lawyer broker the critical question that came up in the wake of the idea and it is what kind tie-in of system we set up in hundreds of millions of cases not all of those reach corporation but we talk run a massive system which means

most people need an appointed lawyer the question that came up almost immediately in the case of 56 whether the standards nemesis -- standards of the effectiveness of counsel that there were so ineffective they were deprived? the supreme court did not get to address that until 1982 galore court had developed a different standard so they took this case to announce general principles and in a disappointing way basically said you probably need something more than a body or something with a law degree but not all lot more. and for the defendant to show it was ineffective counsel that the lawyer was so deficient in what they did to try the case, actually blew it

where nobody could have done anything different but they will pass, it is enough but then we also have to show up that the lawyer's mistake caused the person to be convicted. again, the standards are very important it is easy to say there is a constitutional right but if you dig deeper what is the burden of proof that is where you determine what happens in this situation and in her chapter, abbey has a list of cases that she describes which are her raising in which courts under the standard have found lawyers to be effective enough under the constitution where you would be horrified but the lawyer did or did not do. those who refused who slept through part of the case

because the judge said they slept during the an important points. lawyers who had no experience in the kind of case they were handling. 12 lawyers hired to had that cover capital offense resale after the fact it was not the best all may a fair trial but not perfect so therefore there is no violation. again come it is important to think not only about the individual case not only a bad results somebody should have had better counsel or a better lawyer double standards but also said something larger because again if the state knows we can get away with appointing lawyers who don't know what they were doing and don't pay them enough for their time or investigators are other services that is

fine and the biggest issue today in terms of right to counsel is the public defender system is set up to provide cancel the cannot afford it and in many places they are the first to be shortchanged i can tell you that with philadelphia now one of the easiest targets is to cut the public defender budget which just happened it turns out we have a good office but they are not immune from these attacks and across the country will find cases where employers are put on capital cases and the state gives them no more than $1,500 to represent maybe $300 for an investigator in effect as a result of this constitutional standard implantable years or the defender offices to a pro boehner you can run a practice or begin to think to run a practice based on what the state pays.

it is now true across the country 400 or 500 felonies lawyers when you look at their files investigator even talk to witnesses and 2% of the case is a and this has been proven. there are a lot of reasons, financial, but one of them that we have this problem today is washington versa strickland which set the bar solo people read that the way politicians read these cases and say we don't have to pay very much for criminal defense lawyers there is no political pressure that is not a high priority on any politician radar screen so that is what you get. again it is the case of someone under the radar that impacts and hundreds of

thousands of people per year and a quality that we get you get what you pay for then when you're unwilling to put resources into the system is not surprising we now have is a result of the dna revolution, we see all the flaws in the system and what is interesting if you look at the dna cases from the exoneration this where they analyze the case to see what went wrong and why were they convicted? second happen but there is no perfect system but it turns out it is predictable what went wrong, false confessions but in a large number of cases, it was ineffective. it was the reason for a lot of those convictions in the first place. that is an important issue and

you will see abbey does a great job natalee criticizing by trying to come up with what are the right standards and what would work with counsel that is effective. though those are a few examples. >> thank you [applause] now let's do some question or answer or discussion with people in the room. >> i am really glad to hear from you both today. i am not at activists but i am a health educator and the pro bono dispenser works sounds like the inadequate

compensation for the medical care my clinic is two medicaid on behalf of medicaid patients which is about 20% of the cost itself is reimbursed but i wanted to ask about the justices and i always understood them to be upholding the constitution from such egregious non constitutional practice. what is the process for deposing them? or getting them off of the court? >> and the kind of things we are complaining about is not the thing you can get the justices of the court. all of the things we talk about our matters of interpretation with the constitution or statutes and unfortunately a lot of the law

constitutional and statutory is elastic and there is room room for a wide variety of interpretation but we're say we have read have a fairly long period of time where contrary to a brief period of time that preceded it namely during the warren court which was a very brief period of liberal interpretation of the constitution, we have a long period of time since then were there has been a consistent conservative trend in the law. we're trying to do was let people know what some of the consequences of that are in various areas of the law particularly those that affect the criminal justice system or the ways in which people remedy for violations of their rights get effected we are trying to make suggestions about what type of judicial philosophy news to be brought to the 42 change that.

is not a problem that can be addressed with than the gene justices it is a problem that people need to come up with better ideas by law students, lawyers, writing articles and writing books and developing strong ideas. that is a great deal of the work the federalist society between 1982 and now to create a conservative movement. then to push forward, people for judicial appointments to have a liberal and progressive ideas. let me say one more thing about that. right now we're in a period where we have a president who might be inclined to put some very liberal and progressive people on the federal bench but he might also be inclined

to follow the advice of people who would put forward the establishment type who are middle of the road and not very progressive sort of ordinary liberals like some of the people clinton appointed. i think that would be an extraordinary missed opportunity. of those orif we get another liberals or progressive to do their homework no. judicial appointments is very much about home work and what people can do, they can develop briefing books about the track record of the kind of people that are likely to be appointed by president obama and those who we want president obama to invite those who like people who have the president's year and there

are various progressive organizations in washington that are active in this area who can bring this information to the lawyers and the white house and in the senate who are important people to get this information we need to do our homework can bring information about appropriate people for word. there are a lot of civil-rights lawyers and legal aid lawyers in criminal defense lawyers, of very good liberal progressive people with excellent legal credentials the need to be brought to the attention of the administration and it is our job to do that at this point*. >> other questions or comments? >> i was wondering of the conservative justices on the courts are any that you feel are intellectually honest with

their decision? is there some a who was consistently following the conservative ideology or do feel as if they're all being swayed by their own particular policy motivation? why don't we see more law professors as supreme court nominees? >> a very good question i think the conservatives would say they are consistent but i would take issue with that some of them are in some cases but what strikes me is the notion the liberals who have been activist and conservatives who are not use start to look at the data from the example of federal statutes that were struck down you find the judicial branch striking down but this court like the rehnquist court in particular has struck down more federal statutes than any other court in the history of the united states and then say congress went too far there is

a strict rules but if you don't we will strike down those laws. i think they do have their belief systems and a number of the case is fit into it and a lot of it is protection of the government the whole sovereign committed the notion rewind government to be aggressive and occasionally going on the rights of people we will live with that also the questions of race but their theory is colorblind constitution. you don't use remedies just to use past discrimination or use any group now i think it a doors reality but that is the theory. i think we have problems with them and the liberals do with you will find liberal, progressive, a conservative state will always have cases where you save 40 doing? that is not consistent.

even on the right people have criticized justice scalia saying that is no different than inventing gay-rights. as he reads it the second amendment is directly makes things up as he goes along and you can certainly argue that. historical a michael and i were fortunate to grow up and go to law school during the brief period where we had a the warren court of the liberal court from the '50s through the '60s and that is it and it is true has gotten much more conservative since then and a conservative before then think of the new deal when they struck down, his directly in this country the supreme court has been a fairly regressive institution. the famous cases and all of the rest but historically it

has not been a force of change. we saw the potential for that in a brief period of time with maybe 15 years it tends to be a conservative ideology and that is the case. >> i think several conservative justices of the court are consistent in good philosophy i thien justice bollea is consistent i do not agree by willing to grantee is pretty consistent but as to the second part ilec war law professors, i don't particularly want to see more of law professors and less and less they have experience with advocacy that gives them a sense of when it means for people to have their rights

violated. if there are law professors who have experience in the real world representing people whose rights have been violated like the dean of the yale law school who represented him during the clinton administration and the beginning of the reagan administration and is an expert on international human rights problems that have been involved representing people with international human rights problems but the professor at irvine law school is presented -- presented a wide variety of people who have had constitutional violations or other law professors to represented people in guantanamo, that is one thing but just because somebody is a law professor that does not mean very much

to me in terms whether that person has developed a feeling for a constitutional rights. and a feeling for the importance of protecting civil liberties and civil rights. . .