i believe he was there during the great basketball. no, to for ucla. lasi don't think he was on the m bill. ..

>> finally let me introduce gerald uelman. not only is he one the exports studying the court, he was dean of the law school here when i went here. and his name is on my diploma. based on that, i always refer to him still as the dean. at this point, let me turn it over to you, dean uelman, to get the program, maintaining collegiality in a contentious climate under way. >> thank you, dennis. [applause] [applause] >> to get right down to business, i think we should agree on what we mean by collegiality. the late judge harry edwards offered a definition that i'd like to throw out to you. he said i don't mean that all judges are friends. i do not mean that the members of the court never disagree. collegiality is a process that helps create the conditions for

principalled agreement by allowing all points of view to be aired and considered. specifically, it is my contention that collegiality plays an important part in mitigating the role of partisan politics and personal ideology by allowing judges of different perspectives and philosophies to communication, listen to, and ultimately influence one another in constructive ways. would you agree with that? >> would you repeat the question? [laughter] >> well, which part? >> is there a part that you don't agree with? >> you know, the -- one the people in the collegiality is often to say you really don't like what you are saying. and a tone it down. i'm always a little skeptical of

those comments. it seems to me that our judges are for the cause of justice, and to the parties and to call them as we see them. and if we worry too much about our colleagues getting the nose out of the joints, i think maybe we are constrained in doing that. i think it's always good to be polite. i think it's always good to be respectful. i think it's important to mind other people's feelings. because of the attributes of living in a civilized society. but i am not one who particularly thinks that a court makes great demands on collegiality than any other institution. i think it is inevitable that

when you have a group of individuals who are strong minded and as we know, judges can be quite strong minded. and intelligent and commitmented and passionate about the law, you are going to have the occasional, a little bit of head butting. i for one, think it's a good thing. >> okay. would you agree with that? >> i agree with part. [laughter] >> of course, when you get lawyers and judges together, you might always agree on part. i think my response is i agree largely with judge edwards definition of collie yagty. i believe that it does create an environment where you can discuss and you can head cut. i expect head butting. i expect challenges. i expect disputes. amongst colleagues.

in fact, i think that's how you develop the best opinion. i think my first client is always the rule of law. and the rule of law as we all know based on all of the reporters out there and based on all of the interpretations turned on nuances. it turns on fine points. and so when you really get down into the fine points, on a quarter of appeal, or quarter of review, you really have to have an environment in my opinion and my experience that you can talk about those find points, but you have the head room and the leeway and the patient and the respect to talk about those fine points because that's what drives a unanimous opinion or not. i believe collegiality plays an important role. really at the trial court level, not so much. but, of course, if i were the da, i want a jury.

i think it does apply in institutions, i found in courts of review where the question is nuanced, we need collegiality to develop the knew -- nuance to develop for the practitioners and the citizens. >> are we talking about making life for pleasant for judges? or is this something that affects the quality of the work product? do you think colleague corral courts produce a better work product? alex? >> you know, i have been very fortunate. i serve on a large court. i realize with the additional judge, the seniority, he's 51 on the list. so that -- it includes a number

of senior colleagues who don't sit so much anymore. but 40 active colleagues that i sit with on a continual basis. and i think that the ability to live and work together in a large institution like that, you know, does have an important value. because if you can't -- if a job becomes distasteful because your relationship with your colleagues is distasteful, it really will affect the cost of justice. i have been very fortunate in having as much colleagues as i do. if you now count additional colleagues who are no longer in the court like justice kennedy, bill norris, it's part because

of the 60 colleagues, i am very fortunate to be in a court where we fight a lot, but we ultimately respect and like each other and we wind up having that fine balance between being willing to say what's necessary to do exactly what connie said, -- what tani said, which is to call the dialogues and have the current to change your mind. that's an important thing. you know, having colleagues who are secure enough in their views that sometimes the listen. maybe i wasn't right. maybe in this case, you persuaded me. and i think that is an important ingredient. if you don't have that ability, the ability to persuade each other, then i think that

requires respect, i think the cause of justice can suffer. >> i take it you find unanimity, a value that should -- judges should strive for. and collegiality helps to promote the greater unanimity in the decision. >> well, i don't know that -- of course, i think unanimity is helpful when possible, but not at the sacrifice of one's principals. however, when i think collegiality assists unanimity, you know, it doesn't hurt. but i would also point out in my view a collegiality serves a purpose for the court, for the rule of law, for the ultimate calendar and ultimate opinion. but collegiality, also in my opinion, assists the branch as whole. when a branch -- when a court isn't collegial, it can show out and seep out in the edges.

you read it in opinions. you read it in dissents. how many of us have read briefs where attorneys attack each other? for me, that's completely distracted from the argument. and then i flip over the page to see what the name of the attorney is and what his or her bar number is. i think experienced attorneys don't engage in that. or when a brief criticized a judge unnecessarily and in a personal way. but i digress. my point is when a court isn't collegial, the public gets that. and it's -- it reflects poorly on the branch as a whole, and it reflects poorly on the work of the branch because other people will get the wrong idea about what the branch does based on what happens to be not -- not misconduct, but just the inappropriate behavior on the bench or amongst judges. so i think collegiality does

more than make a judge's life pleasant. i think it help develops. i think judge kozinski made a great point. you are in an environment of collegiality that you trust everyone that you can change your opinion. you don't feel like you have to dig in to prove a point because you are insecure about your stature in your group. so i think that's really important. i also think it has the affect on the public as well. >> i have to make a confession that since i came chief judge, i'm much more fond of unanimity than i used to be. [laughter] >> you may find with time that this is something that goes. i on -- in banks in particular where we sit on the larger panel, i was consider the personal times as you managed to

get a unanimous opinion. >> we've heard the u.s. supreme court occasionally referred to as nine scorpions in a bottle. do you see the united states supreme court as a collegial court? >> well, yeah, they actually like each other quite a bit. justice kennedy came to speak to our law clerks, i mean he comes on a regular basis. he spoke whenever we had orientation, september, or october. and he was telling stories about how his new law clerks come in and they say something like, you know, and stephens did this. my god, you are going to have to go after them. i look at them and i say you mean john, my good friend, my colleague for 20 years? so i think that there are -- i think the differ of opinions, i know a number of them relatively

well. of course, you can't really tell for sure what things are like in a family until you are actually there. and i i -- but my impression is that while there is a lot of, you know, vigorous debate, i think they get along quite well. >> do you think the clerks get along with each other? >> i think the clerks get along famously. they keep marrying each other. [laughter] >> what is your perception, chief? >> well, it is simply a perception. because i completely agree that you don't know a family until you get into it. and what i gather is that i think they are a collegial group. i understand that they share interests and passions, scalia and ginsburg, the opera, which is a basis for starting a collegial relationship. i think they have that. of course, you have nine

brilliant minds, and nine folks that believe they have it right, what want to say in their own words how it is right. so i'm not sure that based on the opinions that issue from the united states supreme court that i could formulate an accurate perception if they are collegial or not. i think they are nine bright people who want to have it their way and say it their way. >> we hear a lot about the value of judicial independence. i wonder where judicial independence is a threat to collegiality. is it just a coincidence that the justices we perceive as the most fiercely independent are often the ones who are least collegial? on your court, chief justice byrd, and justice janice rogers-brown come to mind. >> so is the question that the more independent, perhaps the less collegial? >> yes.

>> i think that that's not necessarily the case. but i think again going back to judge edwards initial definition of collegiality where you open with that. collegiality is an environment. if you laid the foundation for that in environment, then, of course, we can all, if we are in a safe environment, toll rat, respect, and even poke fun at each other, including our independence. but if the environment is threatening in some way, then if there is an independent jurist, that adds to the instability in my mind of the branch as a whole. that bench. >> uh-huh. do you think that independence and collegiality are compatible? >> i don't think they are incompatible. i don't think there's a

relationship between collegiality and independence. i think they can be judges who are highly independent who are also highly collegial. and in some way, as i think about examples of other courts that i know something about, not in california, not anywhere in the 9th circuit, but the l.a. courts i know something about. sometimes there are cliques of judges, or groups of judges sometimes by politics, sometimes by region, or -- >> i've heard there's even law faculties like that. >> there's a thought. [laughter] >> and to me -- and there is a sort of discipline that's imposed by only the subgroup, by -- which then creates by

appealing to this common cause. and i think that leads to terrible lack of collegiality in the court. so in some ways, judge who's are willing to follow that kind of example actually buy being insufficiently independent i think, of course, will lead to a lack of collegiality on the court as a whole. i think by and large, tani suggested another thing, you know, what you want is you want strong people with a strong ego because -- and a strong sense of who they are. and those are the people who are going to be the best to work with. they are going to be willing to listen. willing to change. willing to compromise. because they know that sometimes you can't compromise. you know, it's writing an opinion, you don't have all of the wisdom in the world when you

write it. sometimes being willing to compromise comes up with a better product than you had to begin with. if you don't have the sufficient independence to be willing to compromise, i think that in many ways leads to less collegiality. >> does collegiality mean that justices never criticize each other? i sometimes wonder whether there isn't the code of silence among judges similar to the code of silence among police officers. and the example that comes to mind here is the presence of a senile justice on the california supreme court. for years that was literally covered up by his fellow justices. >> i think that -- i'm aware of that. and i think there's -- i think that times have changed from that period. because i think judges have come

forward more understanding of what their role is as a public servant to further the rule of law, or to further justice. so i don't think there would be a concern in that way. i don't think there's -- i know there's not a code of silence. but i think -- the best practice is a code of respect. i think criticism is important. i think it's appropriate in time and place. by that, i mean, it doesn't belong at cocktail parties and it doesn't belong with your share that shares it with the other chamber staff. truly, it means if you disagree with your fellow jurist, then it means that you are able to talk to them and say to them in a principalled way, in a calm way why you disagree. and if you have to write that dissent, then you do it in a way that is the least offensive in

terms of getting personal with them. you criticize the idea, the theory, the concept, but not the person. and i've seen it done well, i think where i came from on the ca3, you know, we really made an effort to when we dissented that we did it in a way that was with respect. and i've seen, of course, we are all -- you know, we've all seen examples of those dissents that have been a stained insult to the majority, but again it's furthers nothing and, in fact, to me capped the judicial branch in a terrible light because it has no positive collateral consequence. >> one of those examples that comes to mind is the appellate justice in california who responded to the arguments of a dissent with an anti-gram which the first let to each sentence

smelled out the word smuck. his defense was smuck means jewel in german. what's wrong with calling a smuck a smuck? what's wrong with relegalling the collegiality? >> that's got a hard case. calling somebody names does not advance anything at all, and i think it diminishes a person who does the name calling. but, you know, it really is a fine line because people and their ideas -- i mean they have them very near and dear. when you attack somebody's ideas, ultimately, there's a tendency for the writer to feel attacked personally. and so it is not -- not an easy

line to draw. because, you know, when you are writing a dissent or concurrence, you have a number of audiences. you write for the next court up, california supreme court doesn't have that expect, i guess, in federal cases because it's the united states supreme court. we have that in, we have a possible en banc call. you are also writing for prosperity. i write to worn off other circuits. don't do what the 9th circuit is doing. it's not very smart and very good. it's very hard to say that in a way that doesn't disparage the view that you are telling other courts not to take. so it -- it is not that unusual for people to really, you know, have to use the smuck word.

they read it into the text because they think it's hidden between the lines. so the small digression is i found the cases the most contentious, intellectual property, they think the copyright is infringed or patent, it's like they are stealing them. judges are the same way about their opinions. all i can say, you know, you can -- you can understand it, and i think you ought not to go out of your way to be very careful to be respectful. but ultimately, a hard hitting dissent will sting. ultimately, a hard hitting dissent will aim at the core of the writer, and if it's really, really well done, it'll cause the writer to change his mind.

i got the dissent three or four years back. i issued it. and after it came out, the winning park filed for a hearing asking for opinion to be withdrawn. so they could go under the indictment. they could send the court. i thought that was a victory. and ultimately, my thought was, you know, i was being quite harsh about my colleagues. but it needed to be said. and ultimately, i was glad i said it. now they were fine. there was no ultimate hard feelings about it. but it is a fine line to draw on. >> well, let's get to the partisan, political climate that we now live in. do you think that in any way

poses a threat to the maintenance of collegiality on appellate courts? >> i think that it undeniably has enroachment factor on the collegiality of courts. i think that we can't ignore it. i think it's incumbent on jurist to be aware that that kind of vitriol is out there. i think first the public is led to the believe the judicial branch is not unlike the executive branch or the legislative branch. and therefore that the judicial branch determines of rule of law and it's full responsibility is to decide the hard issues on the rule of law. that gets lost. and the vitriol turns into who appointed this judge or justice?

who supports this judge or justice in an election campaign? what is the judge or justice of the political party? all of which, or at least two out of those certainly are not relative to whether or not the judge or jurist is going to be able to declare the rule of law and do it in the fashion that i think is faithful and loyal to the constitution and the statutes. in terms of collegiality, certainly when the bench feels that they might be something in the game from vitriol, or there's something to lose from the vitriol, it's going to change the formula. it's going to change the calculation of how people react to each other. it's going to change the calculus. and as a result of that, it's going to -- like i say, enroach on the collegiality of whatever environment that you've managed to create that didn't involve the political vitriol.

all you can hope, really, in that circumstances is that all of us recognize that and we talk about it. and that we make some effort, you know, i suppose this is very idealistic. we make some effort to not permit that to affect what we do as judges. and to remember that we are judges, and to remember that we are stewards and that we will come and go out of this office, but others will come after us. and this is the branch. and we don't -- shouldn't be in my mind changing or coloring the nature of how the branch operates. >> in the reporting of the progress of challenges to the obama health care plan, the media has really played up all of the judges who struck it down, republicans, and all of the youngs -- judges who upheld it are democrats. doesn't that create the

perception that the politics does affect the outcome? with judges? >> you know the comments that people make? >> the comments that we read in the media that are reporting of the results based on whether the judge is deciding the case were appointed by a democrat or a republican or whether they themselves are democrat or republicans. >> you know, penal -- people say all sorts of foolish thing. i don't think that ultimately what people say about decisions, let me say, changes the way that institution operates, unless it affects reality. and i -- you know, you've -- this has not happened in california when appointed person

has been politicized. >> the appointment --. >> has not been politicized, as the best i can tell, it's been quite collegial. you know what i'm saying? but as we read in the headlines, the federal judges often languish for years in the senate waiting confirmation. and i have worried that process when judges, whatever their status maybe when they start, by the time they get to the end of the four years that they have waited, that they will feel like they have something to prove, or -- fortunately, it has not been the case. i've had a number of colleagues who waited many years for the confirmation. marsha goes on, which requires willie fletcher, and i must say,

they came out of the process unscathed and as good and fine. and friendly and nonpartisan colleagues as i can imagine. there's a big difference between my view of the law and marshall's view of the law. we view things differently. we expect -- i mean not from every case. but on close cases. but i think that, you know, i'm convinced that once the judges, at least the ones that i've seen, once they get past this baptismal fire, you know, something when you put on the robe and you take that out of the office. you put all of that behind you. and i think ultimately, we will be judged as an institution, and we will depend on not what people say, and what people so admire about us, but depend on

how we act. and anybody who takes a close look at, you know, at least part of the judiciary work where i am, the federal courts in the 9th circuit in the west will see that you can't -- you cannot draw on that kind of distinctions. whether it is true in, you know, these are republican, the other democrat. i don't think it happens. whether it happens elsewhere or whether if this process continues, it will have a lasting affect is an open question. and i think that you have to be quite strong to go through that process to wait for two, three, four years while your life hangs in the balance. many people have law practices,

you've got clients who don't know whether they can entrust cases to you because you've been nominated to be a judge. so can they give you -- is it disrupt i have personally, professionally? and i do feel that this continues we will start getting judge who's are affected by it. but so far, i can say that we have -- the judges have made the process have come through on unscathed. >> we're blessed in california with nonpartisan confirmation elections. but all across the countries, state supreme courts have become political battle grounds with huge amount of campaign contribution and do you think it's possible to have a collegial court that's selected in partisan elections?

>> well, certainly that's going to be a test of those judiciaries. we've seen in the last election cycle of course the three justice of the supreme court. i believe was it iowa that was removed from an out-of-state interest group that was unhappy with their unanimous ruling for same-sex marriage. this same group that successfully ousted those three supreme court justices has made a commitment now and, of course, they have tasted success vow to go after the other four in the next election. and apart from what's happening there in iowa, across the united states we are reading about massive amounts of money, hundreds of thousands of dollars being poured into campaigns in supreme court for courts of review. and that is having an affect, of

course, on the -- has to have some psychological affect on those who are least incumbents and sitting as justices or jurist this those benches to see what's happening to their bench. i think that it is the test of collegiality when that successful candidate who has bankrolled perhaps by an interest group or an interest group that's going to or may possibly have later on some issue come before that court. it makes for a suspicious foundation. and it's going to challenge the collegiality. is it going to affect it, you know, it's human nature that you are going to be concerned about that situation. and you are going to be concerned because that person is likely a stranger. it's not someone who came ups a a defense attorney or da, or ag that game to the trial court to came to the appellate court to came to the supreme court. you are putting yourself in the shoes there, and i would wonder

about the -- you know, the soundness of those opinions and the basis for those opinions. and so, of course, i hate to say i think it would be unrealistic to say that doesn't cause great consternation and challenge the collegiality of those courts. >> and the process of judicial selection becomes more politicized, are we going to see a greater demand for recusal of judges based on positions they took in a campaign or contributions that they received in a campaign? what affect do recusals have on collegiality on a court? >> well, of course, we don't have campaigns. and i've never seen anybody be challenged who keeps from the system, or came from the legislation for activities of

that sort. and before they were appointed. and the one nice thing about being a federal judge is that you do get life tenure. you never have to face the voters again. or ever have to face the polls. it does give you sort of a sense of independence of liberation that is hard to -- to over -- you know, it's hard to over estimate. i mean california right now, i can say they have a very fine judiciary. we haven't had much or any of the kind of unfortunate events as we had in iowa. but many of us are old enough to remember not so many years ago

when the three justice of the california supreme court were defeated at the election. something that at this time was sought to be unthinkable, unprecedented. and yet three justices were removed, you know, obviously this is not the time to rehash that -- those events. but what it used to say, it's like the -- it's like the elephant in the bathtub. and when you have, particularly interests, that out of state and not even within your per view. then it is something that i think it's -- it is a serious threat and can be a serious threat. and i must say i admire my

colleagues in the state courts for resisting what must be, you know, the idea of a crocodile. at the end of the road there. and they've -- you know, done such a fine job as maintaining their independence. i think it is, you know, i do hope it doesn't -- this does not come to california. but it's very hard to say that it won't. i think it's ultimately -- i think it ultimately helps the good people of the state and the lawyers in particular who know -- i mean people are not lawyers, you know, they truly to not know to understand the importance of this. and to help teach the rest of the electorate of importance of withstanding that kind of pressure. >> we have a very peculiar

system of succession on the california supreme court where the appointed justice fits the term of their predecessor. and it's resulted in many cases of judges have to stand for retention election multiple times. i think we all owe chief justice george a debt of gratitude for the timing of his retirement because he gave you a full 12-year term. you don't have to face the voters now for 12 more years? >> yes, a 12-year term. yes, i've never had a 12-year term. when i came off of the ca3, i came in and i immediately had an 8-year term. so i stood at the two-year or one-year on, i stood for retention election in '06. i knew i was in -- in eight years thereafter. and i tell you in all honesty, when i knew that i didn't have to stand for 2010, i was elated.

because i was concerned that it was a very big political year. if i could stay off the ballot in 2010, that would be wonderful. i took some solace in that. then find out i am at the ballot in 2010, and the top of the ballot in 2010, was an nervous october, november. >> why? >> well, because i never under estimate the power of mr. no. and i knew that it was a big year. and that there had been concerned about, one, people coming to the polls, two, the fact that there are a lot of issues on incumbent -- what they reported incumbent anger -- throw the guys out. there was a reform for not voting anyone in. i referred mail afterwards that said things to my affect.

i didn't vote because i thought you were the incumbent. i was concerned about that. i was revealed after november 3rd. >> so election after election, judges with identifiable minority names draw the lowest vote. because a lot of voters, that's all they see is the name. were you concerned about that? >> i was concerned about that. i was concerned about that when i stood for retention election in '06. and, of course, it didn't help that my colleagues were telling me that historically judges with ethnic names and a hyphen were names that typically crew drew nos. especially in the third district, i had northern california.

my name went on the northern california ballots. true in '06, my name drew the least number of yes votes, even though i will my colleagues traveled from editorial to editorial board on all of the small counties and got on the list of voter recommended yes votes on the little front sheet that people cut out and take to the poll. it was a concern. but i thought with the name that we've had in the past on ballots , like schwarzenegger and angelides, i'm probably going to be okay in this one. >> do you think diversity has enhanced collegiality or retracted from it? having more women and minorities on the appellate courts.

i know there have been a number of studies on this that suggest actually both ways. that it may actually be a negative impact on collegiality. but so many judges say, well, it really enhances the collegiality to have more diverse due points. >> you know, it's very hard for me to speak. i am from a graduating class of '75. half of my graduating class was women. i really before that, it was all men profession. but i went to law school, a good chunk of the class was women, maybe a little more than half. then at law firms and every place that i've worked, there have been good number of women and the same number of minorities and i don't really

know another environment. i would not feel comfortable in a court with all white guys. i wouldn't know how to operate. and i think that's -- when i say i, i mean me and my colleagues, my age. so i can't say it's been better or worse. i just can't imagine any other way it can be. you know, i fight with my male colleagues, and i fight with my female colleagues, and i kiss and make up with my male and female colleagues. you know, it's just part of being. i certainly don't think that i have any suggestion that sex difference is a race difference is our official points for this union, or lack of collegiality. i think that's nonsense. i think that's nonsense. and every time i sort of hear some of the old time judges, you

know, talk about the good old days when they all used to go to lunch together, and they all -- i think oh my god. i'm glad i wasn't a judge back then. [laughter] >> while becoming chief justice i believe in the only state court in the supreme court in the country that has women. >> yes. >> what is your perspective on the impact it has an collegiality? >> okay. unlike judge kozinski, i do know how to work a room of old white guys. i'm joking. only in the sense that i tell you that i think that diversity -- my experience has been that diversity does enhance collegiality for the simple reason when you are the different person in the room, and you are the new person in the room or on the bench, i found that people sort of take an interest. and as a result of having discussions with them, we have

what you said, professor, it broadens our discussion. as they get to know me, they'll say did you see what that attorney was wearing? i'll say, wait a minute, you don't know what the situation is. you don't know if he's subbing in for someone. so we have other discussions that i know i they had with the male colleagues. if they did, it ended at a certain point. so as a result, next time we have a meeting and i see something, i say, hey, to my male colleagues, is that what you did when you are an attorney? so we have a give and take with my getting to learn about them and who they were, and they have a trust with me and asking me certain questions. i mean, you know, i'm from the philippines.

what kind of food? they have certain amount of questions that wouldn't have had without me there. as a result, when we have discussions about cases and a certain behavior comes up, i have a different filter than they have about what that behavior means or if i think it's heinous, or whether it's a product of the environment. and we'll have that discussion about it. now they may disagree and never change their opinion that i have about that behavior. but at the same time, we've had that discussion. so the next time it comes up, they will think i had that discussion with tani, i still disagree with her, but those are incremental steps that we make together, you know your in looking at the changing behavior of society, diversity certainly bringing that discussion into the conference room and in time, i think it makes for certainly a better discussion of better case, and more collegiality.

>> former governor pat brown was asked how he made appointments to the california supreme court. he relied, i just called the chief justice and asked him who i should appoint. i doubt that's the way his son is going to operate. but do you think sitting justices should influence the appointment of their colleagues on the floor? >> i think that a sitting justice has something to contribute if they know the candidate, but i would think that the governor might be interested in hearing in all of the other voices that he is hearing about appointment to that position. you know, the california process is well known. of course, the judge is vetted. and collie quality -- collegiality is a question on the form for review for appellate and supreme court

justices. and i think it's important to ask only because judges sometimes know judges. they know things about them, they know the history, it's something i think should be considered. whether it should be -- whether it rises to the level of influence solely all by itself, i hope not. i hope not. because i think that's too much authority, too much power for a sitting justice to influence the career of another candidate. when i think -- i say that with caution. because i know different governors have used what the vetting committees, or the kitchen cabinet committees with the judicial collection advisory committees to help filter candidates through torn to either the trial court or the appellate court. i think sitting on the committees and include judges and appellate and trial have the

ability to stop an applicant. i think that kind of power is in the hands of seven to eight people. i think certainly, i would hope that sitting justices can contribute to that decision, but i have a concern about it being -- rising to the level of influence. >> one the unique things, of course, about california's system is that you chair the commission on judicial appointments. so you vote on whether somebody can be seated as a colleague on your court. i remember when don wright was chief justice, he actually voted against the confirmation of bill clark, and then had to sit with him on the court. what does that do to collegiality. i think that's a challenge to the collegiality of that court.

i think just as alex said, eventually you know yourself and you are secure enough to say i was wrong. or to say -- to go to that person and be principalled and say look we have 12 years together. and so i want to clear the air now. and maybe we can't get over this in the next year or two. but i hope three years down the road we can. because to me, the sooner you clear that air, the sooner you step up, the sooner it'll be over and you can be on the road to recovery. that, i think, takes, you know, what alex has said about being a strong, secure person who knows himself or herself. >> his collegiality and all of the criteria for appointment of federal appellate judges? i don't recall the words collegiality ever being mentioned in the hearings for justice sotomayor or justice

kagan. is this -- does it not regarded as an important characteristic for a judge? >> you know, i think there were discussions and there was mention. i don't think -- i think it is one of the things that is considered. and i know that various white houses and now i'm thinking way back a number of white houses. both political parties are always looking for judges and justices. and particularly in justices who will be able to bring around or influence the other justice on the court. so they -- it's very much on their mind from what i've heard. the idea is just somebody who can get along and land that 5th vote.

justice brennan was famous for this. i was lucky enough to clerk for the supreme court when justice brennan was on the court. he had a way about him. you could disagree with him all day. and i did. but, you know, when you met him, he put his hand on your shoulder, and you would feel like $1 million. like you knew -- you sense or sometimes we take the justices out with the various clerks. and our chambers took him out one time. and he knew who we had clerked for. and we had little stories about our judges who we had clerked for before the supreme court. now there was a man who could land that 5th vote. and you could see him as they were leaving for conference, the justice was disbursed and being walking down with harry blackmon. there he is climbing the

vineyards. yeah, i looked just as well. when i went through my confirmation hearings, i was once a day reception of the supreme court for some event. and he found me and i've never seen him since they finished clerking many years earlier. and i didn't have any reason to think that he would know me from adam. but he found me in that room and he put his arm on my shoulder and said, alex, you are going to be okay. you are going to be okay. and i guess i was. you know? maybe he knew what he was talking about. i thought it was -- so, you know, if you can get somebody like that, i know the white house is forever looking for the brennan who will carry whatever the white house's view of the law is. so i think it is, in fact,

something that is not said out loud as perhaps in other places, it is foremost on the minds of the people in the white house who -- i know the justice partner with select judges. the idea that if you are collie -- collegial, and you can get along with your colleagues and land on for a particular position. and, you know, it's -- it is there. it is there. i think in the selection of judges of the lower courts as well. you know, you asked a question about whether we should be

expressing your views or influencing that point of the judges to our own courts. my concern is a little bit different about doing that. i'm not so much worried about judges who sort of hope you'll fail and not get confirmed. i think about eight of my colleagues, future colleagues who were then on the court. i went to visit one time. i could tell from the looks they would have pulled my confirmation and made sure i got defeated would have gladly done it. it didn't particularly bother me. what bothers me more is the idea that a sitting judge or justice would talk to the president, or somehow get a friend appointed. i think that sets up a very bad

kind of relationship, and expect ation of dependence. and that, i think, sets up the bad dynamic and it is very much counter to the idea of collegiality. i cite some famous examples. the most famous are the minnesota twins. it's now, i think, a historical fact that the reason justice blackmon was ultimately appointed to the supreme court was that one way to achieve justice suggests that his name to the white house. and i think it's set up a full dynamic for the two of them to work together. perhaps chief justice expected more loyalty, and justice blackmon had to pull away and show that he was his own man. ultimately, he did not work out well. i had been very pleasantly

surprised. every time there's a nomination to my court, somebody i don't know, i'm always frightful. and saying i wish they would pick x, y, or z. as i turn out, i've been feeling lucky, because the people who have been appointed has been wonderful. and if that's me, i would never have followed them. i think the court and my own experience would have been poor. so i think -- again, no comment on the situation in california. and the situation is what it is. but i am personally glad that the federal system we don't get asked. i think it is so far so good. >> do heavy workloads and the growth of staff threaten

collegiality? we've observed just a tremendous increase in california in the case loads of our appellate justices. and somebody that strikes the court it's worse than in others. but even on the supreme court, there's a number of petitions for hearing that you receive growth expotentially. does that increase workload mean that you just have less time available to be collegial? and to really discuss the cases in the detail that you want to. and that you have to rely more on staff? does the staff have to be collegial in order to get the work done? >> i think that the growth in case load doesn't cause, in my experience, a jurist to hurry. a growth in case load means a

delay on the back end in getting an opinion out. so i don't think it affects collegiality in that way. of course, it can strain resources and it can strain your clerks and the chamber itself just because it continues to grow on the backlogs will be alarming to you. :

it is a collective and also i've noticed i can talk to my beautician assistance, my attorney, i can talk to central staff. when it going to happen? i'm working on this and then it gives us something to complain about collectively. however, you reach a limit and then at some point it does turn into too many recusals if the refusals go up and you feel someone is and stepping up any more if you have to take a case and transfer some of the which has happened that begins to affect because then we begin to fear our team, our group we are not doing the best we can when we come to work which is to pick up that part of the road and no one likes that. >> would you agree with that? >> pretty much.

we had this in tucson and there's nothing good i can say about it, but immediately i had e-mails and phone calls from all over the country, judges who had worked with him and knew him and said judge from louisiana, from nevada saying i'm willing to take the cases, i am willing to come and take over his caseload, tell me what you need done, we stand ready to step in and help. so i think that is something to the adversity and lack of resources up to a point to bring

it together. when it comes to our reliance on staff, i do worry about that and we have gone a different way from the state courts. we have a strong emphasis on the staff rotating. some judges have come but we have the powers of limited ability, you can but you can't get salaries and i think the fact that we have this strong emphasis on the rotating law clerks and has a tendency to keep us young. i can get about 28 hours a day out of my clerks. [laughter]

[inaudible] >> is that you guys sleeping in the first row? [inaudible] [laughter] >> but i think there is a limit on this. i think if we become far more stretched that we, the court of appeals, are in a fabulous situation. in arizona [inaudible] california, sacramento, fresno in terrible states and i know they are pushing the limits and when things get that that i think the collegiality gets very

brutal and it can in fact have an affect on the judges and start jostling with each other for resources. >> those the turnover of justices, is that a sign of a court that isn't coley jeal? >> i don't think the rapid turnover of deficit is that. it's hard to say that points to collegiality. it's more about personal circumstances and how things change and we need to go out into the private sector so for financial reasons i don't see that as -- i don't feel it is collegiality that affects the tenure of a justice. if that is true it is common knowledge that the court of

appeals staff attorneys and judicial assistance have been there for 40 years or 41 years which tells you a lot about how the stuff gets along and the story of the supreme court and court of appeal. that speaks volumes about the collegiality of staff as justices come and go, but i can't say -- of course it would probably be effective you can to work every day and couldn't get along with folks and decide this is unpleasant i'm out. on the other hand, the issues are so exciting and interesting you might be able to overlook the fact and deal with your colleagues so you can continue to do this kind of unique work. to meet the risks are so compelling even if we didn't have a collegial court i would stay for as long as i could. >> when the justice came on the court he was also at least one

annual court every year and i think he gave that up after about three or four years. from time to time, the suggestion is made that we lose something in california by not having that annual turnover of clerks and getting fresh blood into the stuff of the justices. d.c. any change in that? >> i don't foresee a change. i can't say, i've been there nine days but i've heard that position and talked with judges from other states that talk about the need for the fresh perspective, talk about having rotating annual clerks because it gives you new ideas. and i would say here at the end of court when i was at the end of court in sacramento for years and our teams like having all

students because of law students brought to us judges and lawyers a fresh perspective up on the technology and very current with social media and what was happening with most of the populations of there's a tremendous value in having young lawyers come in and out of your chamber. on the other hand, what i've heard from other justices to use the annual court is you are in a constant period of training and just when you train them they leave in your training again so i'm not sure -- i've never had an annual clerk so i would be curious how that works on the federal side. >> any advice? >> when i visit the districts for lunch once in awhile in the building i always ask them to

try getting a rotating head clerk, and for institutional reasons i think our -- it's true you're always training but i think it is good to retrain, it calls you to rethink some things, and i think it is a good process. part of the judges isn't the silent cases but also to mentor the next generation and, you know, i now have clerks who are colleagues, former clerk i should say but once a clerk always a clerk. [laughter] and on the d.c. circuit i have a former clerk who's a past court judge, and i think the mentoring

process is in important. but aside from the fact in one year i can get much more work out as a clerk obviously i couldn't ask for somebody that was more limited on time. we can do just about anything. [laughter] but i find i learned from my clerks, and it always told them i do, but i do, and i think it's -- i find it a rejuvenating process. a painful process i never look forward to. i say my god, the year is over, and they come squeezing

[inaudible] laughter could teach them until all but there is something about the process of teaching the new law group that renews the job for me and makes it a little bit different every year because of the chemistry. so i know that when i was in a small school, and it's not that long ago -- [laughter] i interviewed the chief justice wright and interviewed with justice richardson and i got a call from judge kennedy at sacramento and he made me laugh

from the start a and i remember saying thank you but i got the application of justice richardson and i really prefer to be in san francisco. so i went back and did call to accept the offer but at that time the ninth circuit and the california supreme court or a common practice. i know the justice was on the court might work was from harvard and one of his classmates was clerking for the justice and there was something about this, so we have friends that we the clerks in the federal system have colleagues and friends in the state system. some of my classmates were working for the court of appeal

and supreme court petraeus that provided another area so we knew what they were doing, not obviously talking about cases but we were colleagues and have lunch with each other. that's completely gone now. because clerks are lawyers whereas will students basically, they graduated, but i don't think there is that kind of intercourse, so i think that is lost, too. >> i think it's not just a loss to the court but it's a loss to the bar. i'm active with the academy and always remark on how the best lawyers who i know the court likes to see, former clerks and

they don't have that input now into the appellate bar and the cadres of lawyers who have clerking experience on the california appellate court. >> i'm not classified. i was just sharing my experience. >> something to think about. thank you. >> i hope you come to visit and we can talk about these issues but we do have judges in putting you into colleague from judge michel lehane who has both, and it may be worth having this dialogue with you, some of your call weeks to the to -- colleagues and perhaps reinstituting the idea of an occasional permanent clerk, so

it might be something that's worth -- >> if that is the outcome of this symposium i would feel very, very proud. [laughter] i have some jerry excellent questions from our audience. in light of last week's even some in arizona, how can members of the bench and the bar play a constructive role in public dialogue? >> i think it in terms of public dialogue if you are referring to the tragedy in arizona, i think that that had more to do what is the merging of a mentally disturbed person who had a fixation. when i read immediately in the paper the next day of this

concern that there was partisanship dutrow i thought this can't be. certainly people don't really believe this. first of all, it hasn't been investigated and we are planning parties for it. but in terms of how the public can assist, i think that lawyers, the state bar, i think there is a component of your practice that should recognize that part of it has to do with some intercourse with the courts outside the courtroom, because courts can't often speak up for themselves. courts cannot explain, but lawyers can. lawyers for the advocate, the best communicators, and so if bar associations with the state bar or any organization that can come forward to help educate the public about what is happening in the court or to demystify the court or to explain what might

appear to be something - coming out of the court, it would be helpful. i think just yesterday i met with the bar leaders to talk about what can be done over the 200 million-dollar budget reduction as proposed by the governor because that 200 million-dollar reduction is going to come if it stands, is going to be brought by the trial court, and that is who you practice. certainly the large majority of attorneys process from the trial courts, so the bar leaders are willing to stand up and help us go into the legislature to talk about reducing the cut. we know we have to take a hair cut, but we have to determine how much because we want to keep the court open. so, judicial leaders are going to do that and other judges will

be going to the capitol, but lawyers and the state bar and bar associations should also be going saying keep the courts open, this is where we've right the wrong. i think the public and lawyers can play a tremendous role in that. >> several weeks ago we were glued to our television watching the argument in the ninth circuit of the gay marriage case. do you think the presence of television cameras in the appellate courts will have a positive or negative influence on the level of collegiality of judges? >> you know, we have been televising making available for televising for 20 years on more. we were the first probably the first experiment which was in the very early 1990's. the federal courts elected

several appeals and district courts to experiment. what happened is the experience was made permanent as was the court of appeals and in the trial court's, that's in the federal courts. and we've had television or television in the courts now for 20 years and we've seen no effect on the collegiality. some judges who never -- it is up to each panel to vote but it's a majority of the rule and it has had no affect at all. i'd think it is useful the argument on the proposition case and the argument made earlier in

arizona statute. i think that it's highly informative and educational and useful for the public to know. this, after all, is an aspect of democracy. these are judges making decisions and are going to have an effect on whether or not the vote of 20 million californians get counted or don't get counted. wherever you are on this issue we express no view at all on that and it seems the public is entitled to see and be aware the people making the decisions are serious, well-informed, asking questions that go to the heart of the matter, and i think anybody that wants an argument would have no doubt that is exactly what was going on and

ultimately as i would hope that it becomes those who aren't happy with the result would be more likely to accept it having had it inside. my view was televised court by five to four boats and i beg to differ, and i think that in the long run it's inevitable and i think it will have a positive effect on the collegial part. the arguments in your court are televised. >> is they are, they are televised on the channel but also televises the legislative hearings and such. >> and many other state courts as well, so i have seen and i

think that at least great confidence in the court. there's a lot people can see the courts but there is something about seeing them operate and we have a lot to be proud of and we shouldn't hide the life. >> we are just about out of time. i wanted to end with going back to judge edwards. he said that the more than judges are assessed in the decision making the more likely it is that this will become a self-fulfilling prophecy. even if you are able to resist the temptation to conform to the perception the assessment on the political terms would promote a new reality for a most people would come to believe the

judicial function is nothing more than a political enterprise this would be a horror to behold. if you think we are at the point of the holding that? that there is a widespread public perception that judges are just politicians in black robes? >> i don't believe we are at the threshold, but i can see how we might be getting sucked into the cortex and i think that that will happen if good people do nothing and by that it goes back to the question that one of you asked what can lawyers to. lawyers can help combat that view when it seems to be promulgated by the media. i believe the media is, getting that message and that it gets to people who are not lawyers to the public. i think that is largely a factor

of misinformation and not being ignorant of the role and judges are trying to get up there and explain the role the best we can in terms of educating the public, but that's where lawyers come in. that's where the bar associations come in because this is the practice where the decisions are rendered and ultimately what they are saying is it is this idea that your win is the result of politics. and certainly your good labor in the trial court and appellate court and supreme court and your notorious victory is not because of politics. >> amen. [laughter] amen. we have a plan to catch. i'm sorry we cannot get to all these excellent questions. i certainly want to thank the judge and cantil-sakaue for

making the time to join us for this event to honor the memory of a very collegial and wonderful role model as a judge, judge william ingram. thank you. [applause] said that next week republicans will bring to the floor a bill would keep the government open for two weeks after the

march 4th deadline. the legislation contains about $4 billion in spending cuts but were still being worked out. meanwhile, jester de senate majority leader harry reid said his chamber will attempt to pass the measure next week that extends funding the government for 30 days frozen at last year's budget. house speaker john boehner said he rejects the idea and one's immediate cuts to be made. >> it is critically important that the house move this to avoid a government shut down. >> we all have a responsibility to make sure that there is no government shutdown. with concerns about a possible government shut down, see what was said when the federal government did shut down in 1995 online at the c-span video library. with every program since 1987. search, watch, clique and share any time. it's washington your way. this afternoon at the white

house, president obama comment on the political unrest and violence in libya calling the blood shed outrageous and unacceptable. the president said he was sending secretary of state hillary clinton to geneva on monday for international talks in stopping the violence. you can see with the president said, his remarks just before 8 p.m. eastern over on c-span. right now at c-span.org to read and a look at a prime time lineup on c-span2 starting at 8:00 eastern.

yesterday was the first anniversary of the regulations long known as the credit card act. the law sets new limits on when a credit card company can raise interest rates. we will hear brief comments from elizabeth morgan, the assistant to the president and a special lead dysart to treasury secretary timothy geithner. it's about ten minutes. esident e] >> thank you. >> is a treat to be here today at our first conference and ato conference that is so fitting about data and measuring the effect of a new set of rules ont the part of the credit industry.

so, one year ago today many provisions of the credit card accountability and disclosure ds act took effect. we come together on this anniversary to mark the event, but our primary goal is to analyze and discuss the impact of the card pact to read as the new consumer financial protection bureau we arehe determined that any actions wend take will be grounded in the deep undeilrstanding of the mart we are overseeing. our organization reflects thisn commitment.lect research and rule writing are brought together in a single division in the new bureau comprising five teams in specific market areas comprising five expert teams in specific market areas. the card market team was the first to get underway and this conference represents the kind of work we plan to do on an

ongoing basis. one year after the card act took effect it is appropriate to ask whether it had its attended effect and how the credit card marketplace has changed as a consequence of this new law. there are clear causal links we need to draw now. and work connection are more tenuous we need to keep asking questions and analyzing data. we must recognize the limits of this approach. public policy formulation cannot be put on hold until every question has a definitive answer. the data will always be limited and the answers will never be definitive. even so we will work to formulate policy based on evidence and rigorous analysis. this conference is important to the agency. i will work with you today to help inform the way the new consumer bureau will approach the credit-card market. we hope to leave here with a better understanding of policy

implications of what the data show and how to frame the research questions that remain to be entered. when the act was signed into law in may of 2009 was clear the credit-card market was in need of serious reform. congress concluded certain practices in the credit-card industry were not fair and transparent to consumer and the card act passed with strong bipartisan support in both the house and the senate. as president obama said when he signed the card act into law the act was intended to uphold, quote, basic standards of fairness, transparency and accountability. the concerns that gave rise to that were not profitability for the credit-card industry but rather the message is to generate some of those profits. pricing had become too opaque.

self issuers had understated price up front, counting on interest rates, fees and penalties and other often unexpected charges to let the company charged an overall higher price than the consumer anticipated. the harm to customers was significant but the harm to competition was also substantial. some issuers explained that when they made improvements in cards potential customers could not tell. so for example when one of the largest issuers in the market dropped clauss amid much fanfare, the cards were so complex that customers could not tell. within a few months the company reversed course, reinstituting universal the fault. so the card act was designed to

reduce surprises in repricing of accounts and take a major step in improving the overall transparency of credit card costs. as a result of the card act consumers have better information about how much they are paying for credit and how much they might pay on interest if they paid down their balances more quickly than they might otherwise have planned. thanks to the card act there are no more shifting due dates and customers have 21 days to make their payments, both of which should make it less likely that they will be hit with an expected late fees. a year later the card act brought about major changes in the way the industry operates. in part this is attributable to the protection congress enacted. the data we have assembled to indicate that much of the industry has gone further than the law required and in curbing repricing and overlimit fees. a number of issuers have eliminated some of the practices

that can confuse customers and cost them money they reasonably did not expect to pay. lenders in the industry deserve credit for moving in the right direction. not everyone embraces this approach. as soon as the card act became law some lawyers were asked to find different ways to accomplish that which the law was intended to prohibit. to its credit the federal reserve board responded with a rulemaking proceeding designed to close the loophole. i doubt anyone thinks this is the last time such a rulemaking proceeding will be required, we can probably agree that this approach, avoid a rule or another rule and so on, is costly for consumers and costly for the industry. it multiplies the number and complexity of the rule this approach creates special challenges for those smaller banks and credit issuers that still offer credit cards to

their customers. i believe the card act is pushed in the right direction. it has brought about significant reform in pricing practices of credit issuers and the information provided to consumers. even so substantial challenges remain. thinking about the approach to regulation and how to approve markets without an overreliance on rules will be our next challenge. we all believe and have experienced benefits of competition. when markets work well and efficient producers and shoddy products are more likely to fall under their own weight. with competition consumers tend to get improved product choices and lower prices. competition may also increase the rewards to firms that innovate in ways that consumers value. for a market system to fully serve the interests of consumers consumers need to be able to understand the cost, benefits

and risks of alternative products and to be able to compare those products straight up. by this standard in the credit-card market, we have more work to and the task is formidable. even with improvements brought about by the card act there are a lot of moving parts in a credit-card price. despite the important progress made at improving the schumer box disclosure and monthly statements, it is difficult for many consumers to understand the cost and risks of each individual credit card or to compare cards directly. our next challenges will be about further clarifying price and risks and making it easier for consumers to make a direct product comparisons. our new consumer bureau will make clarity a top priority. industry representatives have

expressed their willingness to help and many consumer groups and academics are committed to helping as well. we want to work collaborative the with all parties. a part of that collaboration, we want to be sure we understand the consequences of the card act, both intended and unintended. this conference is a first step in that direction. so i anticipate that today's event will provoke some thoughtful and informed discussion about what has changed since the card act took effect and what those changes mean for consumers, issuers and the market and what remains to be done. that is the most fitting way to commemorate this one year anniversary. is also the right way to launch a new conversation that uses our collective brainpower to advance more efficient markets. so thank you again for your time and your energy. thank you for being here today.

we need you. legal scholars rowan chemerinsky and john eastman to be the future of the supreme court earlier this month the los angeles. the two talked about the concept in mr. chemerinsky's new book the conservative assault on the constitution. the library foundation of los angeles posted this one hour and 40 minute discussion

>> good evening. good evening and welcome. i'm the president of the foundation and we are very happy to have you here this evening. there are many familiar faces. our supporters and friends and family are here for extraordinary conversation and i just said to my colleague, louise steinman, the founder of the cultural program, that there were people waiting in line who were already rehearsing their questions. [laughter] this is a very good sign coming and we certainly have people who would like to answer them this evening. i want to take just one moment to remind you there is an opportunity coming up in march, which i would like all of you who are los angeles residents to participate in which is the chance to vote for the measure on march 8th, and this is the opportunity that thing goodness we have to restore the full service as many of you know it was cut back and without introducing new taxes i'm happy

to say it can be restored by voting yes march 8th. please turn out and do that. would mean a great deal to all of us and i can't imagine anything more important at this moment than having our 73 free public library is open to the public that needs them and wants them and depends upon them. a quarter of the population of los angeles doesn't own a computer command a large number of people who have computers have older computers, dial-up computers that don't have the bandwidth for their children to do their homework and it's impossible to graduate from high school in los angeles without being able to get access to computer. we have for free, waiting for those students, almost 3,000 computers. extraordinary programs, all of it for free as well as a free tutor. every student in los angeles with a library card can have a free tutor at the expense of the library foundation seven days a week from 3:00 in the afternoon until 10:00 at myett.

[applause] it's incredible. not, science, social studies and the english and it's available in english and spanish. a live human being, a college professor, ph.d. student, a graduate who is there to to your were children. this program, the all-out program, which you are participating is free to the public and there's nothing quite like it anywhere else. as if you also know this is the largest research library in the west, the central library. and we like to think one of the reasons that you are here and one of the reasons our guests are here this evening is because they value the importance of having a library like that in the community. much of this couldn't happen without likely without further ado the woman that has produced over 1,000 free programs as the citizens of los angeles and the people of los angeles, louise steinman. [applause]

>> thank you so much. i do hope you will vote yes. i think this would make it 121. i am not really counting. he apparently is. that's okay. tonight we are presenting a conversation with to scholars of constitutional law with dramatically different views of the constitution in the place of modern american life. all i know in advance is that irwin and john disagree but essentially everything but i have been assured they never come and the model the possibility of gracious and civil conversations. and if they do e erupt into an unexpected skirmish we have a wonderful moderator on hand. before i introduce them this will be in the form of a conversation and please to turn off your cellphone. and we will open up to you for questions. we will be circulating microphones because we do record for broadcasts. we will open up for questions, not ranting, questions so that

we can please accommodate as many questions as possible and ask a question and ask one question that would be great. our distinguished guests tonight is the founding dean and the distinguished professor of law at the university of california irvine school the week he was inspired to go to law school by the civil rights lawyers of the 50's and 60's and continues to believe that it's the most powerful tool for social change. he has offered mix six previous books and more than 100 review articles and use the author of the leading textbook on constitutional law and of course his book which we are celebrating tonight will also be on sale by the library afterwards if you would like to purchase at. he's argued several cases before the supreme court and various circuits of the u.s. court of appeals and we are honored to have to be here tonight. as we are honored to have dr. john eastman who is the kennedy chair at chatman university school of law. he was the dean from 2007 until

february, 2010 when he stepped down to pursue to the country general of california. he joined the chatman faculty in august of 99 was appointed to thousand seven. he serves at the center for constitutional jurisprudence, the public-interest law firm affiliated with the claremont institute and he also serves as the chairman of the federalist society of separation of powers practice group. and in the role of moderator interlocutor tonight is jim newton, editor-at-large of the "los angeles times." his columns i sure many of you know. his 21 years he's worked as a reporter, editor, bureau chief and from 2007 through 2009 and presently editor of the editorial pages. he's the author of justice for all, oral morgan and the nation he made, the critically acclaimed best-selling biography of the former chief justice in california governor and dwight

d. eisenhower which we all hope including jim will be published this year. please welcome speed and john eastman to the public library. thank you. [applause] my name is jim newton. it's nice to have all of you here. it's a special treat to have the two panelists here as noted these are two eminent constitutional scholars who disagree about everything in the constitution. i would like to just add it up front i am not a completely neutral moderator tonight as louise mentioned. am i biographer if i were first to write on sculley i wouldn't give it the same title. [laughter] [applause]

that's it. >> i was looking at who wasn't applauding and i know i have some allies in the room. very good. >> let me say one of the things i both at my ear about you is the ability to disagree agreeably and have a subtle and important conversation but also one in which we regard one another with mutual appreciation thank u-boats. what do you start, the title of the evening here is taken from your book. give us a sense of what constitutes it was it different than one might have described as the liberal assault on the constitution? >> let me start by thanking the library for inviting me. i'm honored and it's an honor to have these two individuals, jim newton is one of my heroes and no one writes better than he does and john eastman is my role model in terms of being a dean and activist, scholar and always incredibly simple person.

i believe since richard nixon ran for president in 1968, conservatives have sought to remake the areas of constitutional law and largely succeeded. whether we focus tonight on individual liberties or the rights of criminal defendants or the separation of church and state. like the schools you see the conservatives have succeeded and guided not by the original understanding of the constitution but but principles of the platform. you can understand what they're doing on the supreme court by reading the the 2008 republican platform and by reading the federalist papers. i wanted to tell the story not that it is conservative though most are, it's not that every decision dramatically changes fill law, but if you look at it overall with the with supreme court has done it has been a

dramatically fashioning basic constitutional principle. >> tell him why he's wrong. [laughter] >> you got to read the language of the book, the title of it, the conservatives still the constitution take it as a background principle something that conservative constitutional scholars reject it and that is we believe the constitution has meeting on its own and to be an assault on the constitution as erwin describes the or rejecting the moves away from the constitution's text that occur on the war on court largely in the 1960's making things up to meet new constitutional law and an assault on the constitution it is an assault on the deviation to the constitution's meeting. he disagrees with that so let me before i get it back to him thank and for being here and having me and particularly because i would have had trouble

getting through the whole book if we hadn't had to do this. [laughter] it is a bit and characteristic for erwin. normally his writings are so scholarly. it is much more political than many of his writings and i think we will talk about that during the course of the evening. >> one is this book is the reflection of what i've been doing the last 30 years. each of the chapters starts with the story of the case that i handled def and so in that sense it is political as much as my view of what has occurred in the constitutional law and to tell it in human terms. john says the feeding from the text of the constitution every justice who's been on the supreme court follows the text of the constitution is clear the problem is it can't be answered by the text.

the president for 35 years of house and been litigated before the court. each state gets to senators. it's not litigated before the court. the book begins with a story of the case that were argued in the fall of 200 to by the name of andrade sentenced to life in prison with no possibility of parole 50 years, $152 of videotapes and california. he seized the sentence under the california three strikes law even though he never committed a violent felony. the eighth amendment prohibits cruel and unusual punishment. what's cruel and unusual punishment? the text can't tell us that. it's a choice that has to be made. the supreme court has said for a century excessive sentences violate the constitution and if anything is grossly excessive its 50 years to life for sending

$153 worth of your tapes. i lost that case 53 cool four, the five conservative justices on the course in the majority and joined by rehnquist, scalia, kennedy. as a result not eligible for parole 2047 would be 86-years-old. what i want to tell is how could we get to the point is a country where it's not cruel and unusual punishment. >> you want to say anything to that? >> i think that case is a good example of where i think the book isn't entirely accurate, it's not accurate on the wall or on the facts. erwin says at one point in the book that the people but to treat strikes there's no indication whatsoever that they had any indication that a nonviolent third strike could lead to the third strike penalty and that is just not true. it was in the balad statement by the analysis and by the opponents of the three strikes

proposition 184 that specifically said this would lead to incarceration for a very long time for people whose third strike isn't a violent felony is not even a serious felony. that's part of the bill that statement, and i remember the conversations about that and the people then decided to do this and it's not for stealing $150 worth of video tapes but for having done that after having already a series of felonies in this case a string of burglaries. so the question is whether the people of the state debt to impose a sentence that tries to put repeat offenders with two prior felonies serious or violent felonies away for a long time as a way to start protecting the property rights of others and the question for the constitution judges is whether the constitution prevents the people from doing that. in this century we had this notion that grossly disproportionate crimes violated

the cruel and unusual punishment the case he cites goes back to 1910, and there it was somebody that was actually sentenced to hard labor, painful and hard labor with shackles 24 hours a day. the supreme court said that was an unconstitutional cruel and unusual punishment. but subsequent cases said there is no proportionality requirement and the length of the sentence itself in the cruel and unusual punishment. we are going to shackle you 24 hours a day and confined to hard labor that all of a sudden was cruel, but the length of the sentence that was a legislative assessment the court held that repeatedly and reaffirm did triet >> if i could quickly respond. prior to the california three strikes law no person in the history of the united states ever received a sentence of life in prison with a last defense of shoplifting. no other state in the country today will allow somebody

sentenced life in prison for shoplifting. in california, there are 47,000 people serving life sentences. half the states in the country altogether the of 10,000 people in prison. of those in california and 47,000, 57% on the third strike wasn't a serious or violent felony. so, we talk about the statistics we have to put it into that context. it is unique to california. john is wrong about one thing he says about the law. the supreme court says there's no requirement a sentence be proportionate to the crime. it's true the justices scalia and thomas have taken that position in concurring opinions, but the supreme court has never had a majority opinion that says that. in fact, 1980 the supreme court said was cruel and unusual punishment to give a person a sentence about life without

parole. the fact are remarkably identifiable to it. my point of curious the supreme court has to make a choice of what is cruel and unusual punishment. the text doesn't tell us, the framework didn't discuss the three strikes law. there has to be a choice made by the justices. there's no meaning of the constitution here just to be discovered. the choice that was made by these conservative justices like in every constitutional law imposing the set of conservative values and of the thesis of the book is in the area after area if we make the constitutional law and take away the basic aspects of freedom and motions for quality. >> one of the notions obviously why we debated on the court today is the question of the original was in, whether original was some is a useful tool for interpretation. what is your view of the original was on? >> i think our regionalism isn't

perfect but it's the best we have because without it we are left with the court deciding what they think ought to be the law rather than what it is and it transfers power from the electorate, those we the people that are the ultimate in the society to the unelected branch of politics. a few years ago it published a piece and one of the harvard law journal's going through the various different theories that might give the court's authority to strike down pronouncements, acts of the legislature who are the most directly representative of the people it's not because it violates the texas constitution, and the one theory we largely rejected in the country is there is a natural high your law that binds even if it's not specified in the constitution. but we have rejected that notion as the basis for the positive law pronouncements. another theory is the judges are smarter than the rest of us and or maybe institutionally they have the ability because the john give them the time to think through these problems.

but that is essentially creating a federal common law that we have rejected. everyone of the different alternatives that you come up with in this up where the judges are substituting their judgment for the active majority because they think it's better policy and when you deviate from the text of the constitution, which confines the judges from getting that right or wrong or getting it different? why should they have the final say rather than the people is the ultimate sovereign? now there is a counter majoritarian view that we need the courts to stop the majority tyranny and i am all in favor of that, but every time we expand certain rights, and this is a good example, if we were to say that the people in california can't impose the sentence on him, then we are necessarily contracting the rights of the property owners whose rights he violated by robbing and committing burglaries and to take the judgment, policy judge how to balance those competing

rights away from the people and hand them to the elected judiciary is i think the great problem with the so-called living constitution. >> telesis over journalism isn't a use for a valid tool of interpretation than answer john's point about this that leave judges the authority to do anything at all? >> several things about a regionalism and then i will answer your question directly. first, conservatives follow original was some only when it serves their ideological agenda. with me give an example -- [applause] i am skeptical we can never know what the framers intent is but if it's anyplace we can expect the framers of the 14th amendment which ensure equal protection very much approve what we would call affirmative action today. so many things the adopted were raised conscious policies. and yet, justice scalia and thomas p. no attention to the condemning affirmative action. last january the supreme court

in citizen versus the federal election commission held the corporations of the right to spend unlimited amounts of money in the election campaigns to have the candidates they choose, the candidates they oppose defeated. it was five conservatives in the court that did this. i challenge anyone to find anything in the understanding of the constitution that meant corps rights loan to spend unlimited amounts of money. second, in most instances, we will never be able to know what the original intent was. let me take the second amendment as an example. if there's a well regulated militia necessary for the state, people to keep and not be infringed. i interpret this focusing on the second clause, people to keep their arms not in french or you might focus on the third, it's about a right for the militias circuit. you look at the original understanding. james madison drafted the second amendment like he drafted all of the bill of rights and his first draft of the second amendment

including exemption from the service for conscientious objectors for the original understanding was at a rate of in the village of tools with guns except for the militia service but strong arguments on either side. does it surprise us then that conservatives that favor gun rights find the original understanding for gun rights and liberals who don't would say the original understanding is the right for the service is not an original understanding out there to be found because they were not thinking of the questions we are today. i can relate a personal example of this where it got to work with jim as you might remember i was the chair of the los angeles charter commission from 1997 to 1999 and the charter for los angeles is much like a constitution. it creates the entity of the government, provides power among the branches and includes individual rights. ..

the constitution was written in the late 18th century for rules different from ours. let me give you a simple example. article ii of the constitution refers to the president and vice president. there is no doubt that the original understanding of the constitution was that the president and the vice president would be met. that would mean it is unconstitutional once we amend the constitution. another example. there is no condition of the constitution which says the federal government cannot deny equal protection. the 14th amendment is only about equal protection. if you follow the original understanding, then the federal government is not limited by the

requirements for equal protection. the bill of rights, the most fundamental rights we have, were meant only to provide the federal government and then we follow original understanding of state and local governments don't have to follow any of them. now to answer your question. throughout american history, both conservative and liberal justices have look at a variety of sources for the decision. they start with the tax. they certainly canceled original understanding. they look at president. they look at tradition. they look at modern needs. and then then make a choice. now that is not a constraint in the sense of you can't reason from premise deductively to answer it but you can't reason from premise deductive answers and conservative cases like citizens united or literal ones like roe v. wade. we do have an elected judiciary and we asked them to make choice for what is best for society. the power of the courts to review the constitutionality of statutes and executive actions

is nowhere mentioned in the text of the constitution. it wasn't expressly discussed in the constitutional convention. comes from marbury versus madison in 1803. so if we are really going to be ritualist the power of judicial -- and it is the foundation of so much of our society. >> i take a different view. [laughter] let me start with the last point because i don't think it is accurate. the discussion about judicial review is part of the constitutional convention and there is actually an entire debate about whether to give the court the power to strike down legislation that they disagreed with on policy grounds. during the course of that debate, where they rejected this power of revision in the courts, it was discussed that they would obesity be able to strike it down as unconstitutional. the question on the revision discussion is whether they would also have the power to act as legislators if they disagreed on the policy. and the convention specifically denied that power to the court. when we move away from the

constitutional text, that they are enforcing a give them a policy judgment that we think this is better for society, but that particular act of congress or of the state legislature is invalid not because it violates a provision of the constitution but because we think it is bad policy, they are acting as a court of revision the very thing that the constitutional convention denied to them. and it transfers power from an elected body to an unelected body and derogation of our most basic principles of democratic self-government. that is why think it is important. now, are there ambiguities about what a particular text meant? yes. that when i get off of the text and i make no pretense directly trying to enforce and understand what the constitution means, and say it doesn't matter where it is says this or are not. this is what the law to be in as a judge i'm going to impose a. i think that is no longer legitimate role for the courts. >> does anyone do that? that seems like something of a strawman. our judges actually saying i'm

ignoring the constitution and this is what i think? >> they do and i will give you a very good example. in planned parenthood versus casey one of the most contentious issues of our time, portion. you are hard-pressed to find in the original roe decision and he kind of the text. even those that defend the decision has had trouble rationalizing it on constitutional grounds but you get to planned parenthood versus casey and we end up with a statement by the three-judge opinion, the controlling opinion, this is even if roe was wrongly decided and illegitimate as a matter of constitutional law the essence of our constitutional system of government is the power given to the court not to the elected branches. that is an astounding rejection of the basic premise of our constitution and yet it is right there latent in planned parenthood versus casey. people overlook it to agree with roe, but it is the most extraordinary assertion of raw power that has ever been issued by a court it seems to me. >> now it is my turn to say i

disagree. first, john is several times said that when courts strike down laws they are being anti-majoritarian. of course that's true. but the whole constitution is meant to be anti-majoritarian. that is why it is a document that cannot be changed by its a supermajority of congress and the state legislature. so enforcing that document by definition is anti-majoritarian. if conservatives as much as liberals want to be anti-majoritarian they must agree clear so the conservatives are willing to strike down the bipartisan campaign finance reform act. the conservative will only strike down federal state and local laws regulating guns. the conservatives are willing to strike down affirmative action programs. all of that is anti-majoritarian just as anti-majoritarian --. second i want to disagree with john and agree with in terms of questions that go jets or justice thinks of themselves as a policymaker.

as a judge or justice is interpreting the text of the constitution looking at all of the sources that i mention starting with each will understanding looking at president looking at tradition looking at special needs, but there is a way in which it is fair to say that the constitution requires that judges make policy choices. let me give you an example. the fourth amendment prohibits unreasonable searches and seizures. and every day in criminal cases all over the country, judges at the lowest level of courts have to decide what is reasonable versus unreasonable. that his apology choice and when the supreme court is hearing if they are making this policy choice. in the supreme court does with his years of individual liberties on discrimination there is no absolute right, noah absolute prohibition. it is a fundamental right, the court has to decide is their compelling government interest. if it is less important and is there an important government

interests? what is compelling? what is important? there is a policy choice the courts have to make and liberals and conservatives have to make it differently. i disagree with everything john said with regard to abortion in casey. i think roe v. wade was recent. the supreme court has said from the century that there is a right to privacy and protecting the constitution of the court has found that many aces prior to roe protecting right to life in right to marriage, right to pro-pro-creek, right to custody of one's children, the right to keep the family together, the right to control the upbringing of children and the right to purchase contraceptives. the issue before the supreme court was in light of all of those prior decisions that prohibition on abortion is -- to a woman's right to privacy. it was obviously the court said yes. then there was the harder question of does the state have a compelling interest in protecting fetal life and i think with the court said there was given the lack of consensus

are decided i've decided that when human life begins the choice should be left to each woman and that is what roe v. wade is all about. now the statement that john refers to an casey actually goes to think that many justices over history -- not the most eloquent with justice robert jackson in west virginia board of education where the supreme court said a state can't require students to move the fight. the whole purpose of individual rights on the constitution is to take their most precious liberties and take them out of the vicissitudes of majoritarian will. i think this is all casey was saying that roe v. wade takes the issue of abortion prior to delivery of a fetus outside the control of the majority. it seems to be can constitutional right. >> irwin says in his book, and he says that more clearly than almost any other legal scholar i have seen and certainly more clearly than any court decision i have seen, that the key question with regard to an abortion context quote who

should determine whether the fetus before viability is a human person? each woman for herself or the state's legislature. and i think that actually is the rub of the question. but if you accept the premise that we get to define a way, the personhood, who qualifies as a human person and who doesn't, each individual gets to do that, you find yourself making exactly the same argument about property and slaves that the old self-made. the notion that there are not to fundamental constitutional rights here at issue and therefore how to balance those rights as a legislative judgment not one for the courts to decide for us, reminds us of lincoln's first inaugural address. the last word on such basic questions of basic policy on how we define ourselves as a people, we will cease to be democratic form of government handed over those basic policy judgments to

an unelected branch. what it is not tied to any tax whatsoever in the constitution as that case was not, then you are asking judges to make a basic policy judgment for the society. and it is just not true that there is not a consensus about when a unique life is created. modern science has proved that time and time again. the question is, we all know that we have dna. the question is whether it is human life subject to protection under the constitution and the constitution simply does not answer that question. and to pretend that it does is the height of judicial activism, contrary to any original understanding or any text because they can't even find which closet is in. read the opinion. we don't know if it is the first amendment or the ninth amendment or the fourth amendment or the 19. dissemination from the -- of all of them collectively. if i can put to the right amendment to the notion that it is kind of rooted in constitutionalism rather than the judges disagreeing with a policy judgments made by the

people i think is a weak argument. >> do except a constitutional right of privacy separate from abortion? >> i do, but -- but i don't think i have the right to privacy to take somebody else's live or to define it. and i also accept the right to liberty that my right to liberty doesn't extend do you know the swinging so that i go through his nose rather than stopping shy of the. >> if you accepted, were defined at? >> i find it and i said when i was given the different grounds on which a court could strike down acts of majority even if it wasn't part of the text of the constitution, i laid out the proposition that there was a natural law, a natural right and interestingly, both sides in the abortion debate make appeals to this higher law of authority. that it is not grounded in a text. and you could easily, you could easily spend a roe v. wade argument going the other

direction with the same kind of reasoning that said the unborn child, fetus from the moment of conception is unique in its dna and therefore it is a person protected under the constitution and that any laws that allow for abortion would be a violation of that individual's constitutional rights. i mean you could easily spin out an argument that is no more grounded in the constitution text than the actual holding of roe was. and what that means is you have got two different arguments about higher law authority. and we have had this fight throughout our constitutional history. very early on in the 1790s and the famous case of calder versus bulk, the court fight over whether yes we recognize there is a natural law or natural right that is not grounded in text and the constitution, should we enforce it? what gives the courts the right to enforce it and the disagreement between justice chase and justice here at dell parallels the disagreement right now between justices khalia and

thomas on that very question. and between khalia on the one hand and thomason earl warren on the other so it is an interesting lineup there. one of the ways we understand the ninth amendment it is somehow codifying these higher law principles trying to give effect to that. completely unlike the unmoored versions that we have now. >> first, you misstate justice blackmun. he doesn't mention the numbers. he doesn't mention the first amendment. what he does say is the right to privacy under the ninth amendment as we prefer under the liberty of the due process clause has long been recognized by this court. and in fact the supreme court has interpreted the word liberty as safeguarding many rights that are not enumerated in the texan i have given a long list of those. this goes back to early in the 20th century. what the court says in roe, like

it said so many other cases is, liberty includes the right to privacy. if you accept that, then the question is do laws that prohibit abortion infringe a woman's right to privacy? and the court in justice blackmun's opinion talk about both in terms of reproductive choice and the burden of imposing an unwanted pregnancy on a woman, there is an infringement of privacy. if that is accepted, then the question before the supreme court is, at does the government have a compelling interest in protecting fetal life before the moment of viability? that is an unavoidable question and when the court says yes, or the court says no the court is making what john calls a policy choice. it is unavoidable. i think what the court said is completely right. they said that scientists, theologians can't answer the question of when human personhood begins but instead

because of the profound burden on a woman to keep the fetus in her body against her will we should leave that choice to each woman to make until the point of viability. i think it is misleading, offensive to compare woman's choice about abortion to whether slaves are entitled to protection under the constitution. [applause] >> let me go back to that. their statement in your book is that it should be up to a woman to determine whether the fetus is a human being. the old slave owners argue that it should be up to them to determine whether their slaves were human beings or property. i think the argument is directly parallel. [applause] >> i think it is safe to say -- let me ask you more political question. there've been two changes on the court since president obama took office in elena kagan and -- if

the ideological balance as a necessary change much in these which is, the partisan balance has shifted some obviously -- what is the boat for the court going forward and how significant is the 2012 election for imagining the composition of the court going forward? do you want to go first? >> sure. i think the 2004 election was crucial in terms of determining the ideological composition of the court may be for a long time to come and i guess is john and i here will agree. >> had al gore won the presidency. >> al gore did one they presidency. [applause] >> had al gore. >> probably less agreement on that. >> john kerry replaced william rehnquist and sandra day o'connor the ideological balance of the courtroom was totally different because george w. bush got to replace rehnquist and conor.

you consider -- continue to have a conservative court and likely will for a long time to come. i think sonia sotomayor will be as liberal as any justice on the current court. i don't that we know enough about elena kagan posner judicial philosophy as to where she will be on the continuum. we know less about elena kagan's velocity than any nominee for the supreme court at least from sandra day o'connor. every nominee since 1981 who was confirmed has been a federal court of appeals judge fort lee sometime in most of them have been a judge for a long time. kagan's never been a judge on any court before going on to the supreme court. that is not disqualifying. think of brandeis, black, douglas, frankfurter, jackson, warren, goldberg, fordyce, rehnquist but the fact that she is never been a judge means we don't have prior judicial opinions for her philosophy. as a law professor she had five

major law review articles and none particularly controversial. unlike some law professors who gave controversial statements which explains why she is where she is at and the others aren't. >> we are here in the forum instead. >> as a result i don't think we can know where she will be on the ideological continuum. i think to answer question most directly look at the other side of the ideological continuum. john roberts turns 56 last month in january. if he remains on the supreme court until he is 90 the age of justice stevens to step down he will be chief justice to the year 2045. samuel alito latour and 61 on april 1 of this year. clarence thomas that -- has been on the supreme court 19 years but he is only 62 years old. both antonin scalia and anthony kennedy or 74. i think the best predictor of a long lifespan has been confirmed

for a seat. [laughter] so it is not likely that any of these five justices will lease between now and january 20, 2013 or cancer question, probably will not leave absent unseen circumstances even in the second obama term. >> except for the editorializing along the way, i agree with that. but i could say the same thing, the impact of the 2004 election was to perpetuate the balance that with there. it actually moved a little bit right. i think it is fair to say justice alito is more conservative than justice o'connor. >> second thing we agree on. >> and that the results of the 2008 election locked in that status quo with younger versions of stephen and souder was sotomayor and elena kagan. i disagree, think we know more about, we can predict with greater certainty where justice

kagan will end up. i knew her as a professor at the university of chicago. there was no doubt where her, not her judicial philosophy because she was not the court but where her life's philosophy was and i think she will manifest that. i think sheehan just a sotomayor are easily going to fit into the seats that stevens and souder vacated on almost every issue that we see. >> a question for both of you. erwin would you have voted to confirm alito and roberts and john would you have voted for sotomayor and kagan if you were a member of the senate? >> no to alito and roberts. i was invited to testify at four john roberts -- the reality is that these are not moderate conservatives. when you talk about john roberts and samuel alito they are everything conservatives could have hoped for and liberals could -- you put them together with antonin scalia, there's a foremost conservative justice

together on the supreme court anytime since the mid-1930s. president can pick this on ideology. george w. bush pushed it on ideology. >> by that standard i should've voted against both sotomayor and kagan. i probably would have voted for sotomayor, even though i would disagree with her but i think that is the deference. i think i would have voted against kagan though. i don't think she had the level of experience necessary and it is not just because she lacked judicial experience. i share with erwin's sentiment that is not a prerequisite and we have had great justices that have been appointed without having had judicial experience. but they have all had wonderful experience extensive experience either in the law, practice itself for much more extensive experience like felix frankfurter on the court and

justice kagan had none of that, and i think that should have been disqualifying just on an objective criteria. whether -- i have a great high regard for intellect but one likes to see one or the other of those kinds of experiences before you put somebody into a life tenure position in the highest judicial office in the land. speak you are arguing against law school being qualified? >> not against law school deans but dean said have experienced. >> let me ask you a live question and our politics of efficacy on health care, the obama health care initiative. the ruling so far that the district court is quite split on it. large philosophical questions about whether the government has the authority to force people to buy something in the private marketplace and on the other hand questions about congress's power to regulate interstate commerce. your predictions each of you? i assume we all believed this is headed to the united states supreme court. >> i think the supreme court is

going to uphold the federal health care law. the less supreme court case to deal with the scope of congresses in the states with six years ago in 2005, a case called gonzalez versus -- the supreme court said that congress constitutionally could criminally punished cultivation and possession of small amounts of marijuana for personal medicinal use. if congress constitutionally can keep angela raised from growing their want for her own consumption to offset the effects of chemotherapy than -- the supreme court has said since 1937 the congress can regulate economic activities which taken keene allegedly have a substantial effect on interstate commerce. the insurance industry is it an 860 billion-dollar industry. hard to think of something that has more effect than that. the easiest way i think to explain it is imagined that congress decided it was going to tax each individual some money

to go into a fund for health care and supply health care for everybody. everybody will need health care at some point in his or her life. children need vaccinations. the government requires communicable diseases to be treated and a person an automobile accident will be taken to the local emergency room. if congress is basically done is say you have to pay that money and through the income tax unless you want to opt out of him by your own health insurance. an individual mandate or pay a penalty for your income tax. i don't see what the differences there. there's a traffic piece in sunday's "l.a. times" by bikila mare yale law professor that explains why it is so likely the supreme court even the conservative courts will uphold it as constitutional. >> jow i think it is a much closer question of that. erwin, you tucked in a phrase there that i think is critical.

this might be possible if oren income tax and they were using part of the proceeds to pay for the health care system. but it is is not an income tax. is not tied to your income. it is not an excise tax. that means it is a direct tax and not -- because not everybody is going to pay because you have the opt out if you buy the health plan is a direct tax not apportioned according to population which article i of the constitution requires. it is one of the reasons why they didn't sell it as a tax when it went through congress because it is a direct tax it would be unconstitutional. the other reason of course is there was a promise made as i recall that this wasn't going to be a tax. because of of the way it is structured, it is not a constitutionally permissible tax. and that means we are left without a tax. does the power to regulate commerce among the states, even expansively interpreted in the new deal in the wheat case and picked up in the medical marijuana case to regulate

things in the economy that have a substantial effect on interstate commerce. cannot force me to make you engage in commerce? can i regulate your inactivity rather than your activity? and i'm going to go out on a limb here and think it is a close call that there would be for solid goes to say is perfectly constitutional. there will be for solid votes to say it is unconstitutional, and i think justice kennedy will go toward the unconstitutional side rather than the constitutional side. >> anything more? >> so many things to say. [laughter] johnson is the congress can't force people to engage in economic activity on the commerce clause. that is just wrong. think of the 1964 civil rights act. title ii says restaurants can't discriminate based on race. it forces people to engage in economic activity.

the question that john avoids is, when you look at health insurance overall, and whether people buy it or they don't, is there a substantial effect on interstate commerce? i think here it is going to be a much more lopsided vote in favor. in gonzalez versus ration, justice scalia was in the majority saying that congress under the proper clause may neighborhood that a person from growing marijuana even for personal consumption. i think for that reasoning clearly the individual mandate can be justified under the necessary clause as part of regulating commerce among the states. >> or rent is why i just received an endowed chair. let me make a wager. will take you and your wife out to dinner if scalia holds it unconstitutional. >> so long edison is not deemed a felony. [laughter] >> i know many of you have questions and we would like to

turn to them in a second. let me ask you one more and we will call on you. another issue though not this fairly surely bound for the supreme court is that of same-sex marriage. again, i am curious your predictions. is obviously a court that once held the equal protection clause prohibited states from banning inter-racial marriage. does that same rationale inevitably apply to same-sex marriage? >> let me start where john and i will agree. it will be a 5-4 which -- decision with kennedy and the majority. i should think it will be 5-4 with the supreme goal -- court holding that there is a constitutional right. let me explain why i say that. there've been two supreme court cases in american history. lawrence versus texas in 2003. you know who wrote the majority in both of them? anthony kennedy. justice kennedy has never taken the originalist approach that

john has argued for today. in fact justice kennedy more than any justice in history has look at events throughout the world in interpreting the constitution. and lawrence he pointed out how western nations were prohibiting private consensual same-sex sexual activity. in a case just last year justice kennedy wrote for the court in think it is cruel and unusual punishment to impose a sentence of life without parole for crime committed by a juvenile. justice kennedy emphasized there that there is no country in the world that would do this. in 2005 justice kennedy wrote the opinion that said that the death penalty for crimes committed by juveniles is cruel and unusual punishment and only seven countries in the world would allow such punishment. justice kennedy wants to be on the right side of history, the right side of the world trend. he knows that canada has long allowed marriage equality, mexico city does, almost every nation in western europe, even predominantly catholic countries

do. i think justice kennedy is going to say there is no legitimate interest in keeping and from being able to express love and commitment, to express the joys and disappointments of marriage that heterosexuals have always done. [laughter] >> common ground is i do think justice kennedy is the divide -- deciding vote and i also agree it is hard to read romer and lawrence not think he is predisposed to go the direction erwin is just describe. i will say this though. the supreme court addresses this issue in very cursory form in 1972. after the race marriage case, five years after it, where they held the right to marry was a fundamental right and the identical claim i a couple in minnesota was brought raising and due process and equal protection claims. the minnesota supreme court said that was different. the relevance of your skin color for the purposes of marriage is

not relevant at the relevance of gender to the purposes of marriage at least one of which is procreation is relevant. they're not the same kinds of cases. that was up on a mandatory appeal to the supreme court a procedure we don't have much of any more. the supreme court dismissed as not presenting a valid federal question. that is a it ruling on the merits of that claim. it is binding on all the lower courts. judge walker's decision doesn't even mention the case. now the one thing i think we'll will get justice anthony kennedy leaning back my direction on this was to ignore governing supreme court precedent because the one thing they have said is it may have been undermined by our subsequent decisions but it is for us to say when it is finally undermined, not where you all. and so there is going to be this kind of what are you doing there jumping the gun on this type of atmosphere at the court. i also think the notion that this doesn't pass rational basis review.

erwin says there is no legitimate governmental interest. that is the lowest level of review that we have. it requires that we reject all of the possible grounds for distinguishing between heterosexual and same-sex couples with respect to any of the purposes of marriage. it pro-creation is one of those purposes of marriage as it has always been, then there is clearly a rational basis for drawing that distinction. this is why i would strongly critical of the massachusetts decision that said it doesn't even pass rational basis review. the california supreme court decision though i disagreed with it, was a more intellectually honest in saying this is a fundamental right and sexual orientation creates a suspect classification. both of those things give us heightened scrutiny and it is much tougher to pass a classification through under heightened scrutiny and therefore they struck it down. that was more intellectually honest, but i fear what justice

kennedy will do is say no we will continue to apply rational basis review that we can't conceive of any legitimate governmental purpose for making this classification. the reason, but i think there are parts of judge walker's opinion that they form part of the record now that goes to justice kennedy that says pro-creation has really never been part of the purpose of marriage. we have never mandated that you prove that he the -- your capability. but the notion that it has not been part of the institution of marriage is preposterously false. and i think if there was anything that would get justice kennedy leaning back toward not taking a step that a year ago i would have agreed with he was going to take it is the kind of overheated rhetoric in the opinion that says things that are so preposterously false. >> please can i respond? it is not going to be based on a 1972 dismissal without any opinion whatsoever.

the reality is, how everyone thinks about marriage of poverty is so vastly different today than when it was brought up in 1972. i understand why judge walker didn't pay any attention to the 1972 dismissal by the supreme court. it has no relevance. it won't have relevance in the supreme court. they will decide the merits of this. i still don't understand what legitimate interest the state has in keeping two men or two women who want to marry from being able to do so. the only one that john mentions is procreation. of course heterosexual couples have been able to marry even if they can't or don't want to procreate. even more to the point couples and couples will procreate whether or not there is marriage. couples through adoption and surrogacy. couples through adoption, through artificial and dissemination. the question is, our children in those couples better off if

their parents are married as opposed to unmarried? if one believes that marriage provides for stability and is good for children, then there really is no legitimate basis for keeping and couples from being able to marry and they too can procreate. [applause] >> well, with that we would to hear from you. [applause] why do we get a microphone out here? how about may be down for here and we will get one, who else? over there, good. >> thank you for a fantastic discussion. i love this stuff. but i'm curious, i know there are a couple of cases sort of an ether that deal with religion and how do you think that the court as it is currently constituted, will deal with issues such as whether it is a national prayer breakfast, or yonder god in the pledge of

allegiance how will they deal with those types of issues? >> let me start first there because there is an area in our book that i do agree with. [laughter] and the court is about to take a wrong step in a religion case, but it is not about religion. they are going going to deny standing to anybody to challenge religious displays that they think violate the constitution. and they think we are probably in agreement that they are probably going to go that way in the arizona case. standing doctrine is very technical and complicated and the court has adopted the view that unless you have a particular iced injury, different in kind from the rest of the citizenry, you don't get to bring the case. and i think that is just flat-out false and erwin i think shares my view on that. i would like to see them reconcile the conflict in the lobby giving broader standing and in striking down a ruling against the plaintiffs on the merits of the case rather than

kicking them out of the court in the first place. on the merits of the cases erwin and i will quit agreeing and we will quickly disagree again, i think there is much broader authority from the founders view of the first amendment to support religion at the state and local level than we have recognized in recent years. >> we disagree on that so i think we are going to agree about something else in terms of the direction of the court. when the supreme court in 1947 said that the establishment clause applies to state and local government, all nine justices agree to that. in all nine justices subscribe to the metaphor coined by thomas jefferson that there should be a wall of separating church and state, and while high and impregnable. if the supreme court has become steadily more conservative, the justice subject further and further away from that. and now with alito replacing o'connor and having roberts, scalia kennedy and tent -- or

dare i think john and i would agree there were five justices on the court who reject the notion of a wall separating church and state. five justices take the position that the government violates the establishment clause only that literally establishes a church of course as religious participation. we are going to disagree over if that is good or bad or they think we agree that is where the current court is likely to be. to me, that is deeply distressing because i think that when the government becomes aligned with religion or religions inevitably people feel co-worst. when the government becomes aligned with religion or religions as justice o'connor said so eloquently some are made to feel insiders and some are made to feel outsiders. when the government becomes aligned with religion i think religion is also in jeopardy as well as individual and that is where john and i would disagree. >> i do see a seed of a erwin margarent just said where there cannot be a majority to go that

direction. he talks about this kind of psychological coercion that is implied. psychological coercion is exactly the issue in which justice kennedy did and join with the other conservatives in the eighth grade graduation prayer place and lee versus weisman when he found no actual coercion by their 8th-graders after all and they feel psychologically coerce. if he could easily see justice kennedy spinning off and saying for the reasons are erwin just said, but given that given the dynamic and our culture, if you are required to view the symbols of the majority religion and you will feel psychologically coerced to go along, and that is not the separation of church and state do. that is the old coercion view that we all agree on so justice kennedy is in many of these things is going to be in the center and i can see him right on the cusp on that issue. >> could you please, could you please shed some light on the

practice of refusal on the supreme court? >> or lack thereof. [laughter] >> again i think we we are goino agree with the rules are. when they disagree in terms of -- each justice gets to decide for himself or herself whether to be recused. that is the love. we would agree to that. the statute that applies to other judges doesn't apply to the supreme court justices. i think that is a terrible practice. i don't think any person should be a judge of himself or herself. i think we need to create a practice whereby we rotate panels of justices in a motion for recusal. it is not that justice decides whether or not he or she is going to sit. and i think we should have a practice where we allow retired justices to fill in when a they justices recused. this term elena kagan is recused from about one third of the cases on the docket, she was the

solicitor general last year. the justice departments represents the government before the supreme court so she can't hear cases that are being handled in her office. that creates the possibility of an extraordinarily large number of 4-4 split. a 4-44 split means it lower court is affirmed without any opinions on important issues and resolve. we now have three living former justices and justice souter stevens and o'connor. why not allow one of them to come back and sit in those institutes are prevented from being a 4-4 split. i think it is a good solution. >> like all of these things, it would be nice if we could pass a rule that would take effect for 20 years. we can't be counting the votes on how it will affect the cases. i look at that and the odds of souter and stevens are pretty bad from my sight. i don't want to go for that. similarly, if it was scalia and

thomas sitting in retirement five years from now and somebody proposes a think the other side would go the other direction. i do agree though that the individual justices being the final word in the only word on their own recusal is a problem but it is not quite the way it works. the individual justices consulted heavily both with the chief justice and the clerk of court for code there are guidelines in place. they asked for independent assessment of the potential conflict. they do get feedback. this is not as formal as we see the lower court. so i don't think it is quite as bad as erwin is describing in practice but i would be in favor of a panel of three of the other judges making that determination. normally, you want to require were crucial -- recusal when they have the financial state in the outcome. ideological stakes, no. think about it. justice ginsburg was the general counsel for one of the

abortion. >> she was the head of the women's rights --. >> the had ideological complex would exclude her from every abortion case. i don't think that should happen. similarly i don't think the fact that justice scalia has given a speech to an organization that has an ideological view should exclude him. if there is a financial stake in the outcome of the case they have recused themselves in those instances and that is probably where the line is getting drawn to this day. but what qualifies as a financial estate led a panel of three judges decided. >> thanks. my question is regarding corporations that repeatedly violate humans rights laws and environmental laws. are they legally reviewed as a person when they are not subject to three strikes? [applause]

>> this is kind of an awkward situation, is that erwin? >> one of the things i put in the book was the same year that i lost 5-4 i was representing a family that died as a result of a ford bronco rollover. it turns out that the evidence the trial showed, the ford rush the 1978 rocco onto the market knowing that it had a propensity to rollover and didn't put in rollover bars. in addition, the top roof was almost all fiberglass so it was guaranteed if rolled over to crush the occupants of that is what happened to the roma family. the jury after figuring evidence awarded $285 million in punitive damages against ford. the court upheld the think before did -- manslaughter under criminal law. the supreme court handed down a case that limited punitive damages and the california court

of appeals reduced to $285 billion to $24 million, which $24 million is to lock that call your client and say you have $24 million now. all i could think in both of these cases in the same year, the one to want to be cynical but if the principle of constitutional law is too much money in punitive damage violates the constitution by too many years in prison for shoplifting that doesn't violate the constitution? and if that is what the supreme court is saying. an answer to your specific question, the law is very inconsistent as to incorporations are persons are not persons. the supreme court it never found corporations have free speech rights until 1978 and that applies in 2010 to say they have the same election campaigns individuals do. individuals on have protection under the fifth amendment.

corporations are not generally protected under the right to privacy under the amendment so there is inconsistency as to when corporations are in for they are not a person. the actual integer question comes not from the constitution but as a federal statute called the alien tort statute that creates an ability to sue those who violate norms of international law. the question which is now pending the courts is can corporations be sued? that is where this issue really comes up. >> by the way where for you on contingency on that punitive report? you could have funded the entire ucla law school with a contingency fee. i will say this, but the notion that the punitive damages award is limited by the constitution is not one driven only by the conservatives. in fact justice scalia has been most adamant in objecting to the caps on punitive damages award. because it is made up. there's nothing in the constitution that says there should be caps or what those cap should be or if the punitive

exceeds double digits so we can allow nine kinds of compensatory damages but not 10 times the compensatory damages. justice scalia i think it's been fairly consistent in opposing that. although i will say this, there are other provisions of the constitution that raise serious concerns at least in my mind mind about unlimited punitive damages, because they are civil litigation matters not criminal. and award punitive suggest we are imposing punishment not just for the conduct that occurred with this individual budget punishment to make sure that they don't do that kind of conduct again. normally when we impose punishment we do it to the criminal law. where the burdens of proof are higher than they are in a civil law. and to allow for unfettered punitive damages, so you can be punished into oblivion on a mere preponderance of the evidence, when normally such a punishment can only be meted out if i prove

beyond a reasonable doubt. at the evidence in the ford case show that they had been derelict to such a degree that they were subject to manslaughter charges, the but the district attorney -- a kind of method on the last bank -- campaign trail -- let the district attorney bring those charges of manslaughter. >> john wears her deference to due process to talk about earlier? no punitive damage award has never been declared unconstitutional. many states have adopted laws limiting punitive damages. putting caps on punitive damages requiring punitive damage awards be turned over to the legislature at least large percentage of it. if you want to defer to the process why not say it is for the legislature to level punitive damages. >> and i will. >> just behind you there.

>> thank you for a wonderful program. do you think that a series of domestic terror acts before provide muslims, that the court may uphold laws against muslim organizations or individuals much like it did during world war ii but the japanese-americans? >> you know, erwin and i are going to disagree vehemently on this issue but i think the singular account push mance of the last eight years since 9/11 is that we have not engaged in the wholesale infringement of liberties such as occurred after pearl harbor with the internment of japanese-americans. if not rounded up all of muslim americans that live in the united states and put them in return cams. now, there's a huge dispute over whether the more surgical things that have been done also by

violated liberties beyond the constitution and i know he and i disagree vehemently on that. but i think it is fair to say that there is not than the been the kind of grand scale are going to don't expect we will see the kind of grand scale that occurred in world war ii. >> another area of agreement, we totally disagree on that. john is right of course that thankfully the government is not interned 100,000 people as it did during world war ii but to imply in that there hasn't been a horrible invasion and in the abridgment of rights is just wrong. the bush administration in an unprecedented way claim the authority to obtain people even american citizens without due process complying with the constitution. just look at guantánamo. their hundreds of people that have been held there since 2002 who never had a meaningful hearing. i've been representing a man who has been there since the spring of 2002, almost nine years now.

that is longer than world war ii or world war i or the civil war. he has never had a trail. he is never has never had a meaningful factual hearing. during these last years, during the bush administration, so far as we know for the first time in american history the united states government systematically designed and implemented a policy of torture. you only need to read jane mayer's the dark side of the record red cross to see that. the bush administration massive electronic eavesdropping. in terms of the spring court they have a mixed record so far. there was a disturbing decision this past june called humanitarian law project versus holder that held that american citizens could be criminally punished for devising foreign groups on how to use the united nations international law for peaceful resolution of disputes or how to apply humanitarian

assistance. just a speech of that could be deemed as -- before terrorist organization. there is a case now before the supreme court that may be one of the most important with regard to civil liberties in the and the war on terror. it is a case up for called ashcroft versus al qaeda. he was apprehended after september 11 and he was held as a material witness. he was held in solitary confinement and when he came out of the cell his cell he was literally shackled and never convicted of any crime and never accused of any crime. when he was released he was put on home arrest. the material witness statute allows individuals to be held as material witnesses. if their testimony is essential than there is no other way to achieve it. the united states court of appeals and the ninth circuit an opinion written by judge marlon smith and appointed by judge -- george w. bush said it was never the intention of the united states government to use it as a material witness. they were trying to hold him

under the statute for investigation and that violates the constitution in the supreme court negative review and we will see what they do in the next couple of must. >> if i were ticked take up all of the points in the war on terror we would have an entire other form. let me take up just one. it is true that this war has lasted longer than any other war in our history. not yet, not yet, vietnam is longer. but it is not true that it is unprecedented that we have helped people without having a hearing or a trial. we have always held combatants during time of war until the conclusion of the war. now this one is different and i will be the first to acknowledge that those differences may require us to think about that question differently. we don't have the nation-state as an enemy. we don't know how the war will end. there won't be a treaty at first i was signing ceremonies or on an aircraft carrier in the south china sea.

but it is not true that we have to have a hearing or a for -- trout to hear come -- whole combatants during time of war. a voice in that. does the unique nature of this war force us to rethink that old rule as an important question? but i don't think we dance been so baldly pretending we are doing something unprecedented by holding combatants without a trial. whenever hold tried combatants unless while they are being detained as a prisoner we also discover that they violated the law and we will hold a trial for that prosecution for violating the laws of war. but the simple the tension of them as a combatants does not require a trial. >> one sentence, never before us in a president held a -- american citizens as combatants without due process. >> but that is not true either. abraham lincoln did and also franklin roosevelt did. >> right here, sir. you are the last one.

>> a brief observation. my wife and i are grandparents of two children of a couple. my observation is that they can screw up their children as well as heterosexual couples and that seems like marriage equality to me. now i question. you are asking a judge to make a judgment and at least some of those judgments it seems to me cannot help but lead to policy decisions. so what do you think? >> i think the constitution provides a more limited confined in which the judge exercises their discretion and policy judgment than erwin does. i think that is the essence of it. i think it needs to be much more rooted in specific text. i give much less freewheeling amorphous read to some of the broader clauses of the constitution than he does. >> i think john doesn't do that.

i think he just does it in different areas. he is willing to have the judges appealing authority strike down affirmative action programs. i know because we have discussed this. he supports the supreme court striking down campaign finance laws even more than they didn't citizens united so he wants the court to strike down laws just as much as liberals want the court to strike down laws. is just that conservatives and liberals disagree about where. there's another difference though. liberals don't hide that they want the courts to do this. conservatives pretend that they are doing something else. what it is amazing arrogance being presented as modesty. [applause] >> there are three examples are renegade involving the free speech clause of the first amendment. that is text. in the 2nd amendment, that is text and the equal protection clause of the 14th amendment. that is text. trying to understand what that

text means confines by discretion. when i moved from bad to say well this is in the ninth amendment which doesn't have any text that defines anything all of a sudden i am unmoored from the texan i get to do it every one. that is ultimately the difference. i try and grounded in the text and he doesn't think that is necessary because it ought not to be finding. >> one since. every decision by every justice is grounded in the text. >> with that we are going to turn it over to erwin for the last word in a moment that let me just say thank you to the two of you. this is proof -- [applause] >> this is proof it is possible to have a spirited conversation and a civil one of the same time so thank you both. >> again to thanked jim and john please vote for opposition l on march 8.

>> erwin will be signing books and lobby so please get a copy of the book and join them there. [applause] [inaudible conversations] [inaudible conversations] ..