>> i just wanted to put that on the record because i was a little surprised we're going to campaign material for part of this hearing. it seems like we have enough politics around this building. i want to specifically ask for a minute general schwartz, i don't want to dwell on how hard this has to before you and the

leadership at the air force. no one needs to convince me that you want to get this right at dover. i'll tell you what i do want to bring to your attention, and have done so with a letter today, and that is the finding of the office of special counsel. so people understand what the office of special counsel is, it's an investigatory and prosecution oriented agency whose primary responsibility under our law is to be independent of all of the agencies and protect whistleblowers. and what i am concerned about is their investigation into what the air force did in response to the whistleblowers. and specifically the fact that the ig of the air force, they failed to admit wrongdoing in their report. and while i understand people have been moved around as a result of the problems that have occurred because of the

mishandling of the sacred remains of the fallen, i'm not sure that they have been held as accountable, for example, as what we saw happen in arlington in connection with that heartbreaking and competence. and what i want to make sure is that there is an independent investigation into whether or not the ig shaded a little bit because everyone was feeling protective of the institution for all the right reasons. the vast majority of people who serve at dover into this work i'm sure do it with a heavy heart, but with a passion are getting it right. but when we have a circumstance like this arise, i want to make sure the inspector general are not so busy looking after the institution that they failed to point out wrongdoing which was not ever acknowledged, and that there is accountability for the people involved. so i want you to address the

special counsel's report as relates to the air force investigation. >> senator mccaskill, there was, clearly were unacceptable mistakes made. whether they constitute wrongdoing is another matter entirely. and when you look at a situation like this, you look at the facts of the case, as an attorney might say. you look at the context in which the events or the mistakes occurred. and you also consider the demands that are placed on individuals and organizations. with respect to accountability, we also had an obligation to ensure that the statutory

requirements for due process were followed. we did that precisely. i can only speak for the case of the uniformed officer, but the uniformed officer received a letter of reprimand. we established an unfavorable information file. we removed him from the command list, and his anticipated job as a group commander at shaw air force base was redlined. this is not a trivial sanction. >> well, i understand that's not a trivial sanction, but i'm worried that the was conclusion that there was not an obligation to notify the families in these instances. and, obviously, this feels -- the secretary of the air force is also copied on a letter i sent today called for this independent investigation.

what happened at arlington, nobody was intentionally miss mark and graves. they were mistakes, too, and i just want to make sure that we have really clear eyes while we have full hard about the right, aggressive need for investigation by inspector general's in circumstances like this. thank you very much, and thank all of you for being here today. >> thank you, senator mccaskill. senator manchin. >> thank you, mr. chairman. let me thank each and everyone of you. it's very impressive to have the leaders of the services of the greatest defense of a country one could ever hope to live in. and i appreciate it. the respect you all have for each other is evident, and i appreciate that also. i must say that my experience as a governor which i think is the greatest honor i could ever have been bestow upon as a citizen of the great state of west

virginia, and having a close relationship with my guard. and a close relationship you get a title as governor which is commander-in-chief which is a little bit much if you will, but i can assure you that watching the performance of my guard and the guardsman all over this country is an unparalleled of anything i have been witness to. i had a chance also to travel with other governors a week ago, and you'll would be so kind to take us over to visit in afghanistan, iraq, and we go in and be able to say thank you to our troops for the services they gave, and to a t. i will say this, every one of the commanders of every base that we attended in visited, they make a point to come up to m me and sad i want to tell you of the expertise, the professionalism, the commitment that your guardsman have and what an asset they are to our command. so with that i would say that i didn't see the difference.

i really didn't, and i never really thought about why it hadn't been looked upon equally at the pentagon or the joint chiefs. i thought about this quite a bit since then, and i know change is hard, being in the positions i've had to make a lot of decisions i know comes very, very hard. the thing i would ask, and whoever would want to ask, answer this, and general dempsey, might want to start with yourself, do any of you believe, and i think you can tell there's been some wonderful questions here and some wonder testimonies, senator graham does a expert job of holding his emotions back, and his feelings. but with that being said, do any of you believe that this legislation, and i believe it will be passed, would you have a hard time cycling and being able to do the job you're charged

with at the level that needs to be done for the defense of our country? >> i will start, senator, thanks for the opportunity. also conjure the second senator to sort of imply that we are a burst to change. we are, i promise you, one of the most change oriented organizations you're going to see appear before you at any time. and that change will be clear to you as you see the effect of some of the budget decisions that are being made. so we are not averse to change nor are we resisting. as you know, the body charges us to give us personal military advice today. you're getting it because we have a system in place right now that works remarkably well. we have one army, we have one air force. i don't know what impact this will have and, therefore, you were sensing some reluctance on the part. it could be that nothing changes.

that would be the best possible outcome, and one might say well, if nothing's going to change why are we changing? i would say, the dishy before it is one of context. the context of adding craig mckinley to the joint chiefs which in some ways would be a powerful symbol to our citizen soldiers. i got that. but the of the context is for me, more compelling argument about turning to ray odierno and sank i want soldiers from you and i don't care if their active guard or reserve. so i don't know the edge to your question by i am concerned. >> let me just say this guy the utmost confidence in all of you and i know you wouldn't be in the position you were if the orders that were evaluated in any subject fulfill, and i don't anticipate anything different from that. the thing that i observed is truly the guard is the only

visible part of our defense department right now that the citizens of this great country connect to. if it wasn't for the guard we wouldn't even know there was a conflict. it's the moms and pops, and's and uncles, brothers and sisters, they get redeployed and we are all there sending them off. our towns, and our state. they come home and we welcome them home. we will cry with them wouldn't have a loss of our loved ones. so they are the fabric of our whole defense system. i think that's why some of us are so passionate about this piece of legislation to have an equal footing. i will finally say this, there's not, you know, i think you have to be as frustrated as the southern of the people around this country as they look at the functions of congress right now. we can come to agreement on anything. this is one thing i think we are agreeing on, and please don't deny this moment. please don't deny the chance to come together, democrats and

republicans, for the sake of this great country and put america first. that's what we are asking. so with that we might respect for discreet but we sure do respect you and hopefully know that we respect you at the highest levels. we want to thank you and hope you would consider as legislation. i want to encourage the chairman to make sure that our leader, joint leader, knows that important it is for this piece of legislation, i'm sure this will be an amendment to that legislation, but for this bill to move forward. i know you've been working diligently and i support you 100%. i support the guard being a full standing member. thank you so much. >> thank you, senator manchin. it's been a very important hearing. we obviously have very divided views on this committee. and i assume, i hope to get the bill to the floor, hope we get to the floor i, before we get to thanksgiving. in any event we have commitments that our bill will be coming to

the floor, and i'm sure there will be an amendment and ensure there will be a very vigorous debate on an amendment on this particular issue. i think the fact that you have all appeared here today with such dignity, such character and such directness, which we welcome, and it's important that we hear the views unvarnished. we got them from all of you. and we got a legal opinion, which is what we sought, a legal opinion from you, mr. johnson. we did not seek policy from you. we are very grateful to you for your service. we thank our veterans on the eve of veterans day and we'll stand adjourned. [inaudible conversations] [inaudible conversations]

[inaudible conversations] [inaudible conversations] [inaudible conversations]

>> next, a panel of u.s. judges talk about the judicial decision-making process among appellate courts. participating in the discussion, judge edith jones with the fifth circuit, and judge brett kavanaugh with the d.c. circuit. this is also by the appellate judges education institute summit. it's a little over an hour. >> good morning. good morning and welcome, everyone, to our panel discussion inside the judicial sanctum, the art and science of judicial decision-making. i'm brad, program chair for the council of appellate lawyers. into book, justice clear and

bryan garner think, the right putting aside emotional ago, persuasion is possible only because all human beings are born with the capacity for logical thought. the most rigorous form of logic is the most persuasive is intelligence. and yet just as holmes famously wrote the life of the law has not been logic. it has been experience. the necessities of the time, the prevalent moral and political theories, institutions of public policy about or unconscious, even the prejudices which judges and share with their fellow man have had a good deal more to do in determining the rules by which men should be governed. so which factors dictate judicial decisions? is that logic? is it experience? or is it a combination of both. to help us answer these and related questions, our panel today includes judge eugene

pigott of the near court of appeals. that states high score. justice mark martin of north carolina, supreme court. judge brett kavanaugh, u.s. court of appeals, d.c. circuit. and chief judge edith jones. our moderator today is kirsten castaneda. she is senior counselor and the appellate practice group in dallas, texas. she received her ba from yale university and her jd from smu, school of law where she was a scholar. she's a member of the executive board of the council of appellate lawyers. please show me in welcoming the distinguished panel. [applause] >> thank you so much for being here today with us for our talks about judicial decision-making. before we begin on this veterans day, i would like to take a moment to remember all those who have served our country in the

u.s. armed forces, and all of our men and women in uniform today. thank you for your service. [applause] >> i want to start with the question that kind of bridge between lawyering and judging. before you became a judge, when you were a lawyer, as a lawyer before he went on the bench, what didn't you understand about how judges make decisions as a chief judge jones, we will start with you. >> that was so long ago, i can hardly remember it. what did i not understand? i did not understand the impact of personalities in the decision-making process, because on a multimember, please forgive me, i am better today than i have been with this laryngitis, on a multimember court, you have

people with decidedly different life experiences and professional experiences and legal experiences, each of which had something to contribute on every, just about every case that comes before us. and, therefore, when you sit on a panel, particularly when you're sitting with people repeatedly year after year, you become like a cohesive group, but understands what each other, person is on various issues. and that contributes to a much more unified product than you would think would be the case, single person signing an opinion. that's not all that persons opinion. that is a product of the majority of the person is working with. >> judge catherine. >> i think two things. one, the importance for judges

on the docket along deciding cases and keeping everything moving means that judges are very interested in efficiency, and it also means from a lawyer's perspective that issues like waiver and concessions and oral argument i think judges are going to be very interested in because if the case, if the issues way for good conceded to weigh the case, that's one less thing that judges have to decide in a finite period of time where there's a lot to decide. so that's very important. and second, picking up on what chief justice jones said, the collegial process of a group coming to a decision leads to a group input into the opinion. and so when i used to read opinions as a lawyer and i said boy, that would make -- footnote makes no sense, or the first intention, i now understand much

more about how that might have been put in because another judge wanted that put in and it was a condition of joining and working together to try to get a group product, sometimes leads to not just a collegial process, a consensus product, but a consensus product sometimes can lack the clarity what you would have if it were just one judge. >> judge martin. >> i'm actually going to use a term synergy. it's been very interesting to me that when you have an appellate panel or court working properly, it's amazing to me that as you have interaction among the judges, you truly have an opinion that is far -- the product of the collegiality produces an ultimate opinion that is far better than any member of the court can produce. i think that's important for attorneys to understand. the more they can engage members

of the court in argument, the more they can be cognizant of the individual judges or justices prior opinions in every. it can really give you insight as to where the process can lead. the other thing that's been very impressive during my 19 years on the bench is how important the judges consider their role when they decide cases. they know that they are not executive branch officials. they are very unaware of the fact that they are not legislators, and in the backdrop in every session i've ever been a part of, you can just tell that judges are very influenced by the unique role they have. >> i was a trial lawyer for about 25 years before it went on the bench, and i've been on the appellate courts of new york the last 13. the one thing when i got a decision for an appellate court

when i was a lawyer is i turn to the last page in the fight one it was great, and if i lost it wasn't. [laughter] if i lost i wasn't going to be. if i won i would take my time to read the wisdom of the judges were handed down last night one thing i do we, a little bit of transference, i was always reminded by my mentors and others that when you're a lawyer you may have 100 cases. your client has one. your client will take the kids out of school. they will change vacations. they will modify, they will think about you and what you are doing for them at times when you're not thinking about them. and it's important, i know you know as lawyers, to keep in mind how important it is to your individual client, even though you have many more. it's the same thing with judges i think him and particularly on the appellate courts. you have one? and it's important to you and your bring it up and trying to get our attention. it's important for us it seems to remember that. we may have 200 cases.

you have one, and your case is as important as every other case we will see in any given session. and i think when you have a bench that keeps an eye on this and focuses on each case individually, it is a good thing. when it is not it can be trouble. and i think i was on intermediate appellate court for a number of years before i came to the new york state of appeals, and as quickly as the appellate division tried to get the cases down and out, sometimes those things, i don't want to say get miss, but they have so much more work and a circuit court like mine does, that we have the duty i think when there is applications not to sort those out or member even though in the appellate courts they have 2000 cases, you have one and that one may be important for the entire state. so a little bit of transference and remember we are not dealing in volume regardless of what the volume is. >> i'm interested to talk although the about how

discussions, talk about collegiality and the synergy and the interaction of judges. how discussions with other judges impact your own decision-making. judge kavanaugh, i wanted to start with you. can you let us know, do you ever speak with other judges for submission, what is your post submission conference process like? >> we typically do not speak with one another before the oral arguments. the oral argument, the first time i'm learning what my fellow judges might think about it? that's important for the lawyers to understand because you are getting in the middle of a conversation that is starting a monk, in our case, three judges on our appellate bench. so that conversation will start and i'm learning at oral argument, my colleague has an interest in this, i need to think about this, and that conversation will then continue at our conference which follows the oral argument where we discuss how we tentatively want to decide the case.

and oral argument, what the lawyers say but also what my colleagues say at oral argument and the conference afterwards really does sometimes change your minds, certainly refines your thinking, change of the opinion might have been written. so it is to underscore what's been said, a collegial process where the final product really does reflect the outcome of what you're going from your colleagues. but the important thing to remember as a lawyer, that conversation is starting among the judges at oral argument and you want to be part of that conversation if you could. >> judge martin, could you add to that? >> it's really interesting. i served on to appellate courts on the intermediate state level appellate court, we had three judge panels that changed each month. and currently on a seven-member state supreme court. anyone's been really interesting is how the dynamics can be so different, based upon the number

of members on the panel or on the court. so when you think about the continuum within the united states, the three-judge panel, up to a nine-member state supreme court situation, or of course the nine-member situation in the u.s. supreme court, the relationships among the judges when it's the same group every month. it's like they move in time together in tandem. and best judge cabinet indicated, we take great care to not talk about the cases before we hear from the lawyers at argument. but after that takes place and we have a preliminary consensus or vote on how the opinion should be decided, at that point you begin to see opportunities for the entire court to talk on subsequent occasions about a case, but also you will see where you can have individual conversations maybe with just two justices, or a greater

number. and many times that process can be impacted by whether you have a division among the court, whether you're going to have an addition to the majority opinion possibly a concurring or dissenting opinion. and so i would say that the larger the court you have a larger number of people who are trying to come together and form a consensus. so from the adversarial standpoint, keep that aspect in mind. the larger number of judges you have to deal with, the more you really need to take care that each of those members of the court feels like you have engaged in any argument, you engage them in the decisional process. >> and when there is a concurrence or dissent involved, how does the process differ or what's the process like in terms of discussion among the judges? do you have more discussions after conference, or does a lot of the entertainment happen when they -- >> i will step back a second to

last question because in our court, most people do not discuss the cases before we go to oral argument. but i don't see any problem in doing that occasionally. you can highlight a fact or an issue that is of particular concern to one report of the the other colleagues. this comes back sometimes when the courts and the and the question out to counsel before oral argument, means that someone has located an issue that we are really concerned about, or they really need to comment on those, though should be taken scarcely. as for the concurrence and dissent process, after you discuss a case after oral argument, the different shades of opinion will begin to show up and how to approach the case, what do you is important, whether an issue was properly raised in the district court and so on.

and the writing judge has the responsibility to try to fashion an opinion that will appeal to the panel. depending on the depth of the disagreement, however, the writing judge may know that another panel member is going to write a dissent and, therefore, quite often you write one and his betting some of the dissent issues. i recently had a case that ended for quite a long time, and i wrote a majority opinion but i added two or three opinions in order to get another colleague on board, and then to respond to issues another colleague had raised in dissent. so it can be pretty involved. >> justice pigott, how does that process work? >> about the same. it's funny, in the appellate decisions, there are for them in new york, the judges it seems to me always pull more on hearts and they're much more fair at the time of oral argument, i

shouldn't say prepared but they tend to know where they are going as an appellate court. we, like the rest, don't talk about the cases before and we're going back next monday and i'm very excited that i can almost guess what some of my colleagues are going to be in some of these cases. and i of course have worked on it with mike. we have evidenced a traditional process of who reports a case in conference, and then who ends up should there be a dissent, who talks in what order, and then depending on what everyone is lining up, who writes the majority, the right to dissent, and if there is a concurrence from the. so it's a rather arcane process that goes back i think john jay was our first chief judge. i think he started all of that. >> one thing i'm interested to know is whether you consider the broader implications of a case, the broader implications may be

unintended consequences, is that normal part of your judicial review, judicial decision-making, do you consider that? chief justice jones. >> it depends on the case. some cases are clearly tickets for this day only where the issues lie. well, when the issue is not well presented, when the case, i don't want to tell you about one we just had, but clearly it's sort of a grudge a case. you know, i have a strong resistance, as do nearly all of my colleagues, to try to make mountains out of mole hills legally. we do not pride ourselves from taking a small case and turning it into a matter of great importance, unless it really, really is a matter of great importance. but yeah, we have -- i would say

at least as often we have and i to the narrow to the dispute before us. when we do have the cases that present broader implications, we like to see the lawyers from their focus be on the fifth circuit tell us what the other circuits are thinking about, or when there are splits among circuits, because that helps us in our decision-making process. >> when i'm deciding a case i'm always thinking about the relevant text of the statute or regulation or constitutional provision in front of me. i'm always thinking about the president we live in, a system that is governed by president with each particular issue. will have a audit of president we have to operate within. at the same time and very cognizant that the decision, the opinion we issue will set forth a rule of law that people will

rely on and try to apply, in our case our court has a lot of administered law cases, so a lot of federal agency action. and i'm very concerned with trying to set forth an opinion that is marked by clarity and workability in terms of what's going to happen. so will people know what the rule is and will does really work in the real world and, therefore, in term i'm looking for at oral argument and in the briefs, what is the big picture here, how does this case it into the big picture, and telling me the overall context, if your rule prevails, how will this law work. and that's very important to my decision-making, and especially important to my approach to opinion writing, recognizing people for years potentially could be trying to figure out well, what does that mean and how do we live under that

opinion. and the more i can anticipate that and provide a clear role, the better i'm doing might job comes on trying to work on that. >> i want to address this from the perspective of the appellate lawyer. i think it's critical to understand where the court that you're handling your appeal, he how does a fall in the tier? isn't a first tier, is it a second tier appellate court? so having served in the two tears in my state, our first tier is much more concerned with error correction and has much larger mandatory jurisdiction docket, where litigants are there, via a statutory notice of appeal process, have a right to bring their appeal there. when you get to the second tier and you see a greater portion of docket discretionary certiorari, of course the ultimate example of that is the u.s. supreme

court on state supreme court you have varied degrees of mandatory jurisdiction versus discretionary jurisdiction. so the more the docket, cases where the justices actually made a decision as to whether, you're going to see public policy be a larger part of the decision process. obviously the case was elected for review because the court was concerned about the significance of the jurisprudence for that issue, particular conflict between the lower court decision and one or more of the decisions of that court. and then finally you have public interest aspects that can enter into it. and so i think that if you have a case where the court did not have to hear your appeal and you made it to that round, determination the court will order for brief and argument, always be concerned about the broader implications of your appeal. that does not mean that if you

have a case on point, how often will the case be selected for review under that situation. and how often, it's more typical that there's a degree of gray area here, and the court is going to be highly interested in the impact of the resolution of this case on that aspect of the legal landscape. spent my answer would be almost the same. we are a circuit courts we get a lot of situations where on the leave application, suggestion that there are no implications beyond these parties. and if that's true than generally we will take it, even if there's a colorful error. so as judge martin was saying, if we take it it's usually because we're more interested in the broader implications of the case. we do get some sent up from the appellate division themselves which is always interesting because it's important to them. the best advice i give state lawyers when they're coming to

court is if there's a division between the appellate division, that's great. we are always trying to straighten them out. [laughter] see if we can get them to agree. >> all right. from the broader to the more obscure, when a case involving scientific or technical concept with which you're unfamiliar, you haven't run into them before, how do you become informed? do you rely solely the briefs x. dvd cases in more detail or the record? ducote check that? to go perform any independent research? do you figure out the basic scientific concept? how do you approach that when it comes before you? let's start with justice pigott spin agenda rely on the litigants. let me make a suggestion or a thought. because i made this mistake all the time when i was a lawyer, and that's where lying on the medical records for with the medical records say. so i put a note that the doctor

did a test and this, i had no idea what the test was. but that aside, when we get them and you are trying to decide these things, we don't know that stuff, and i think lawyers that take the time to realize that these judges by we don't know mark any more medicine than i do or don't know any more about coefficient of friction than i do, to explain those and to teach them a better is a great idea. we don't have a lot of time, nor do have a lot in commission to get to my spectacle educators sells on many of the sink the we are trying to fill the focus on the law. what you can do is defeat or so without knowing it by allowing the judges that i don't know what he's talking about here, but that doesn't fit within that case for some and you find yourself losing because somebody is too lazy to go read the signs, which is probably me or someone else. so i think it's a good idea not count on us to go do it. do it yourself.

>> this issue creates quite a challenge for the legal system. on the one hand, we want it well informed before making decisions that would have such a great impact. on the other hand, to the extent we have judges independently, you know, on the internet or anywhere trying to learn science themselves, it creates situations where the advocates don't have a meaningful opportunity to be part of that process. so i think, i'm saying all that to emphasize to counsel that it's very important for appellate lawyers not to make too many assumptions, and you've been working with that case for some period of time. you can just handle it on appeal, maybe not multiple years, if you handle it the whole time you intimately know about the case. sometimes would begin to make assumption that well, everybody knows some of the presuppositions or basics that i've taught myself. but that's not necessarily going

to be true. and make sure that you don't assume that the judges know everything about the field of science and that is going to be relevant to the resolution of your appeal, and try to walk through the basics in your brief. maybe you'll end up footnoting some of the information or referring the judge to a state the source for more examination. but be cognizant of the fact that judges are not necessarily always going to have the same degree of expertise as you have in the scientific field. >> i think your question raises more broadly the point that we are journalists, as my colleagues have been saying. we are dealing with a huge range of issues on a daily or weekly basis at oral arguments, and the lawyers are the experts and the job of the best appellate lawyer is to bridge the gap and to bring their expertise to a level where a journalist is done with

a lot of different issues and we can understand. that's a skill to be able to communicate the complex issues and maybe a bottle in passionate body of law, may be assigned to the concert, but human gait and break that down into a way that a generalist can pick up on very quickly. would like to become experts in everything but that's the goal, but you're going to spend months or years on something that we are going to have a 45 minute, one hour oral argument on, and it's a challenge but also a necessity for you to bring the case into the level that generalists can appreciate it. >> i don't have much to add, except a quick and a caution about foreign law. because as you know in the federal courts, foreign law is a fact to be identified by use of expert testimony and extrinsic

sources. we've had a couple of cases where the parties have been really pretty efficient in teeing up foreign law for us in a way that we thought was sufficient. and the court of appeals, under rule 44 part one, were entitled to go out on our own juncture most of you counsel would not like us doing. [laughter] and my general quip on this area is one of our judges often said put it down with a -- >> when the lawyers are trying to get these concepts across and to educate how one thing that is tempting these days, the advent of technology, not happen, but the government of the, is to cut and paste things from the record, a photograph of a scene

or a diagram of the machine that is involved, when those things are put into a brief, as opposed to the attached as an appendix, defined to be helpful, or does it come across as sort of as a can and as you're trying to use the new pdf program you got in your office? [laughter] >> anyone can take a. >> i love it. i like, all of you look like your athletic, or at least understand sports. and one of the things that i want to mention to you is that everybody looks at the rules of the court, which ought to do, and know them, but you don't go play can come you don't go play golf, you don't go play baseball sink i have the rulebook your and the rulebook says, and then you make sure you don't do that. if you look at the stars are in any sport, they are the ones of course know the rules but in play the game. i don't mean to suggest this is

a game, but you want to win. when you want to win you can do anything within the rules that will get the attention of the judges and will promote your case. and i think that, first time i saw and embedded photograph in a brief i thought it was great. it's there. our judges that take the briefs, believe it or not, when they are working out, they don't take the record, but they have the briefs. so if you have the case, if you have the picture, if you have a piece of evidence, as long as it is in record of appeal and it is part of your brief i think you've done yourself a great service. and i think if you focus on the idea of getting your point through to the judges, and you focus on that you will do a lot and i think that is very helpful indeed. >> hull house electronic briefing affected the way -- how has electronic briefing affected the way you analyze the case,

take a look at things, one person mentioned footnote earlier, and there have been comments from other judges that footnotes a lot of times are not very helpful in electronic briefs because you have to scroll down, scream, and then scroll back up. has electronic briefing impacted your review in any way? >> well, our court just purchased ipads within the last six months, and among the uses that we have for the ipads is that you can download all of the briefs in the record excerpts, and that has enabled the to prepare further in advance of the oral argument by reading those things on line and still getting used to it, but i found that aspect of electronic devices very helpful. ..

>> i don't see a systemic change in approach based on the electronic devices. >> i think we're using it a lot more as chief judge jones says, but i, like her, don't think i can see yet how it's changing how we go about things other than it is easier to read on -- instead of hugging the briefs on a train or a plane, it's a lot easier now to have access to them at all times. but in terms of how that will change decision making, i think it won't other than make us more

efficient which i said at the outset is an important value that we all have which is getting to be as efficient as possible and getting our work done. >> well, like chief judge jones, we now have ipads, and i brought mine with me on this trip since i have argument on monday. so i think it has facilitated the judges being able to better prepare for argument. let me be very practical. everyone in the room has used computers, has used ipads. i think the real challenge for judges that are preparing in that way is when a comparison of two documents beside each other would be helpful, and under those circumstances think of a way where you can help the judge see the collateral matter and still be a part of the briefs, and maybe there's an excerpt or some degree of a document that needs to be imported. but just keep that in mind when sometimes there are limitations in how the electronic media can

be utilized when you start comparing different documents. that's an area of challenge, i think, we haven't yet fully solved. i think hyperlinks is and some of the suggests that chief judge jones has had will be beneficial once that's perfected. >> i'm still a luddite, and i think most of my colleagues are. we have mandatory filing of briefs and records now. the one thing i like about it, because i used to complain that records on appeal would come in, and sometimes the way they were bound it was hard to read some of the documents, and that's been cured because they're all there electronically. in terms of getting through the briefs and records, we're still struggling. we need ipads, i guess. [laughter] i've got a flash drive, that's as far as i've gotten. you folks are well in advance of us, but keep in mind you're dealing with judges who grew up with pencils. [laughter]

>> talking about the materials that you're reading when you're, you're doing your review and you're preparing for argument. when you pick up the materials and start fresh on a case or at any point in the process, do you look to see who the trial judge was or who the judges were on the panel below? the author may be a little bit more obvious if it's a lower court opinion, but do you look, and does that impact your decision making at all? >> >> yes and yes. [laughter] >> i always look -- [laughter] i'm not sure on the effect. i think i look at the substance of the issue and try to get into the text. certainly, you do realize that certain judges develop habits or reputations for certain things, so you're aware of that. but ultimately, you're deciding

the issue based on your own evaluation. now, if it's abusive discretion review or something like that, i guess one could say that you're looking at how this judge handled it, and you may be aware that this judge has made a similar mistake in the past or something. you're aware of that. i'm not sure i can quantify that it actually has an impact on the decision. >> well, i guess i would like to think that for the rule of law to work appropriately as between various courts and hierarchical structures for appeal that you really don't want to focus on who authored the lower court opinion or who may have been on the panel. so i think as a general rule judges try to not consider that. i do think that sometimes as judge kavanaugh said you may have a discretionary ruling or a particularly close question where at the end of the day

you're wondering, you know, is this a reversal? so i think it only helpses in a positive way at times, at least for the appellee when you have one of those situations where you know you have a very talented and experienced judge at the lower level that you might tend to give it a little more benefit of the doubt before making the decision. >> all the time, when i was on the fourth d., you know all the judges. so you'd see the cases come up. now, the intermediate appellate courts in new york have much more power than the court of appeals. they have interest of justice juris 2006, fact-finding jurisdiction, so it is important, i think, to know who the judge was. you have respect for some -- or you have respect for them all. [laughter] you have more respect, and it

can have an impact. in the court of appeals we try to avoid it. there's 1300 trial judges in new york. i don't know the ones down in manhattan, i'm from buffalo. but i know them, and my colleagues from new york city don't necessarily do. so it's nowhere near as important when you get to the, i think, to the highest court. but in the intermediates i think it's very important, and all of you know that. and i think you probably spend as much time as you need bringing forth who the judge is when you're making your appeals. >> when you have an appeal that has a lower court opinion whether it's from a district court or an intermediate court, do you start with the lower court's opinion, or do you start with the appellate brief or petitioner's brief or do you go back and forth? justice pigott? >> with me, i start with the court decision, and i outline it. and then i do the same thing

with appellate one, and then i go to the appellant's brief. one of my colleagues that i deal with that i just know how he does it, he goes back to the original papers, and he tries to sit as if he were the judge in the first court and how he would decide it and then looks. but i generally do that because it's a very issue-narrowing exercise. and then when you look at the appellant's brief, hopefully they correspond and the issues you thought were important match theirs, and you go from there. that's what i do. >> judge martin? >> i always start by reading the appellant's brief, the party who took the actions to bring the issue to my court. and once i've read the appellant's brief, tried to get aceps of the theme of the apell hasn't's, the theory of the appellant's appeal. then i go and read the brief of the party who's trying to uphold

the lower court decision. how have they responded to the assertions made by the appellant. and finally, usually even before i go and look at the record, at that point i will go and look at the lower court decision to see what spawned this foray into my court. then i'll go look at the immediatings, the record just to get a better sense of the background on this case. i think everybody on this panel, we're always aware that behind every case is real people, and that story cannot be fully told until you've examined all relevant documents. >> i'll usually look quickly at the apell hasn't's brief and then go back the district court opinion. it could be the six issues, but only two of them are on appeal. so i'll usually take, see what the issues are and then use that to focus in on the district

court decision. but that's a very important starting point in my thinking about the case, of course. someone else, a judge who took the time to go through the whole case and spent a lot of time on it and wrote an opinion, that's a critically important part of my thinking and decision making process. >> i agree with brett. i go about it the same way. i look at the issues on appeal, and then i look at the low court opinion. and let me just add that while it's always interesting to see which judge wrote a lower court opinion, they're all entitled to -- the judges' opinions are entitled to equal weight in our court, and a lot of them are quite well reasoned. so we look at those very carefully. but one more point about the fact that appellant judges may

occasionally be concerned about the identity and the predilection of a lower court judge -- [inaudible] counsel, and counsel should never argue a case in terms of, well, this came up from the famous judge so and so, wink-wink, nod-nod. very bad, very bad form. >> what triggers you to go look at a record before argument, if anything? >> if our court had more time, we would look at a lot of the records before oral argument. now that the records are all available online, a lot of our law clerks do, in fact, examine the record before oral argument although, you know, i'm never willing to fully vouch for the way a law clerk has looked at a record. but that has been a powerful tool to assist us. i didn't think it would be, but it has been. when the parties can't agree on

what the facts are, then you have to look at the record, and that is a very distressing situation because the briefs ought to at least agree on a certain universe of what happened at the trial court and sometimes they don't. >> oftentimes an issue will be raised on appeal that was raise inside a different way in the lower court. and so for me i find it useful to go back and see how this issue was portrayed to the district judge, and appellate counsel, naturally, if it lost there, may have a different approach on appeal to presenting the issue. but it's helpful to go back for me to look at that as well as to look at other aspects of the record that are put together in the appendix. that's a standard part of the decision making process, to review what the parties have put together as important for the record. >> well, i'll just quickly elaborate on some key points

that have already been made. it's so important for counsel to make sure that they convey the facts accurately in their briefs. and when that doesn't happen, it's always uncovered because on an appellate court after argument, there's a very pain staking and thorough, meticulous process to make sure that every aspect of the record is examined. so know that going into it. i think that it is an area of significant challenge for appellate courts because there's no way pre-argument that you can examine every record. but i think the lesson for appellate counsel is, please, know that it will be examined and. and so when there's a difference in how it was represented at argument and how it was found, it can have a profound impact on the resolution of appeal. >> i really like evidence. ebgs and depositions i don't read unless you tell me to, and the pleadings are there.

but in terms of the actual hard ed, i like looking at the pictures, the medical records, i like looking at affidavits of experts and things like that. and one of the things i would suggest -- this has probably occurred to all of you, but one of the frustrating things is when somebody's photocopied a black and white photograph or a color one and it look like a rorschach test and you can't tell what it was. visually, for me, it gets to the courtroom to what the thing actually is because these are the real records in which the oral arguments and briefs are made. i just get a kick out of it. i think that's true with a number of our judges. many judges, and i think they're right in doing it, will simply look at what you're talking about in your brief because they're in the law courts and they now have to make the decisions based on the law. >> with regard to the decision

making process you've had oral argument, you're trying to decide the case. does the case involve an issue of first impression or an area of unsettled law, how much if at all does just plain old common sense or pragmatism factor into how you resolve that issue? >> in our court that, um, element tends to depend on the judge. and to some extent it's a matter of philosophy on a number of levels. you can have a case that presents a novel issue, but it's a very small case, and it can be very -- i would distinguish this view of pragmatism fundamentally from judge posener's view of pragmatism to which i do not subscribe. but pragmatism can be taken on the level of is this something where the law is profited by

writing some bold, new rule that might or might not advantage this particular person? if it's not, has not been well presented, has not been well presented in the lower court -- i'm thinking to some extent of the habeas type litigation -- pragmatism can take the form of, well -- and, of course, you put this in perspective. we're the second busiest appellate court in the united states per judge. i think the 11th is the busiest. sorry to the ninth circuit judges who might be in attendance. so we have to move cases law. and when the, when something is fact-specific, maybe a commercial dispute, fact-specific, reasonably well handled in the trial court, the issues are unique to that case

such as the interpretation of a contract, pragmatism suggests that you dispose of that case in a very efficient way, as quickly as possible. other pragmatism can take other forms which i'm sure the other judges will talk about in many, you know, how does the case come out, how much should you write, what aspect of the case should you focus on. so it's just, it's a very difficult thing to try to quantify, it seems to me. >> i agree with all that. i do think common sense, to use the term you used, does and should play a role in how we think about how this is going to work. as i said, the interpretation of the precedented issue, but how it's going to work. and, therefore, we're trying to -- it's going to be a

completely nonsensical result from the real world, that probably means we're going to have to rethink our premises about how we're going about it. and, therefore, as an advocate to tell us how this all works and would work in different approaches and the problems with the other side's position. it would mean this, this, and this, and it would cause all these problems. well, i think those things are important to highlight. in the end, we have to make the decision that the law dictates, but we want it to be informed by common sense, and i think everyone likes their decision to be this is right on the wall, and it's going to work. >> case is the first impression. so it's going to be critical for appellate counsel to determine who are the arbiters, who are the decision makers, what are their live experiences, how will they be brought to bear on this -- [inaudible] first impression decision. i have heard many, many times from colleagues this does or does not make sense, and i

believe we're talking about common sense when people are making those kind of assessments. the only thing i would add is that, you know, once you get to a second tier appellate court, you know, the judges or justices are very interested in how is this particular case, how are we going to place this in the legal landscape, how is the internal logic to have legal landscape going to be affected by this decision? so i think there's a lot of other factors than common sense, but clearly that is a variable that is considered in these first impression cases. >> i like that question. somebody once said that the law is common sense as amended by the legislature. [laughter] and i don't think, kirsten, you're asking us to say that we're not a common sense court, but we do use common sense. on cases of first impression, for example be, we've decided, the court of appeals of the state of new york, decides gps about two years ago. what we did is decided under our

new york state constitution so we wouldn't have to be confused by what happened later on in washington. [laughter] and we said you do need a warrant, and that we -- but it was, it was a question of first impression for us. but you, obviously, i mean, we all have our constitutions, etc., that we work on. and it's kind of fun at that time because it's when all seven on our court are digging in on these issues. we did gay marriage not too long ago, and they're very spirited, and it's really an enjoyable thing. and, of course, we borrow from our federal courts and our colleague courts around the country when and if we can. >> now that we have the internet and so many ways of clerking opinions -- collecting opinions, there really is almost no such thing as an unpublished opinion, and yet courts still use unpublished opinions. how does that -- if your court uses them, how does the use of

unpublished opinions factor into your decision making process? >> well, that's a very important question. all the federal circuit courts, i believe, now hold a, quote, unpublished opinion is nonpresidential. and the courts have different rules about what that means. in our court it means that it's not to be cited for precedent except in incidences of relates, related litigation or, i think, race judicata. that said, we do get occasional citations to federal appendix cases. even more disturbing, we get citations to unpublished cases from other courts which i'm sure would be just as disturbing to them to see cited. it is a matter of necessity given the volume of decision making nowadays.

most circuit courts cannot keep up with the precedential value of everything that's published and, therefore, we have to do certain things that we consider to be nonprecedential. we still try to be consistent with those authorities, but don't set too much store by them if you do have a case on point that is an unpublished fifth circuit opinion, please, cite it but do not expect us to treat that with the same dignity that we, um, that we treat our published opinions. and in the decision making process, sometimes we'll decide initially that a case we think we can handle this as an unpublished case which means in a fact-specific way governed by clearly well known law. and, therefore, nothing that is of legal interest. but if any single judge within the court or even not on the

panel can ask for the case to be published, and also the lawyers can ask for it to be published afterwards. so those are backstops. so we would hope in part sufficient controls -- impart sufficient controls on the unpublished docket. >> well, i serve on a court where every determination that we make is published. and so i don't currently have that issue. when i served on our intermediate court of appeal at the state level, we had most dispositions were unpublished opinions. i think it's an area of concern in our legal system because our common law evolves through the publication of decisions that deal with fact patterns. but i also recognize chief judge jones' point about the incredible number of cases. so i think what jurisdictions have to take a careful look at

is how can you make sure that when counsel examines the facts and finds this perfect decision that turns out to be unpublished, is there a mechanism for counsel to move for publication or some other rule where that decision can be utilize inside the adversarial process? >> well, we're a common law state. all of our decisions in the appeal are published, all four of them are published. i'm trying to think the volumes they're at now, and we have select opinions from our niece si prius court that are published, too n a miscellaneous section. and on top of that, those that are not published in miscellaneous that the trial courts wish to have published, many of them are online, and we well them all -- welcome them all. sometimes the trial judges write some wonderful opinions on specific facts or issues that we find helpful, so we have no restrictions on that.

>> i want to give you all the opportunity to just give us any observations you may have for us about your decision making process or things that we can do as lawyers to help you in that process. judge kavanaugh? >> it's important to quote fairly and accurately the text of the -- [inaudible] in question. it's important to be candid, it's important for us to be candid -- [inaudible] the precedents, it's important for the lawyers to be candid. sometimes the case not a lot of times, my reading is 100-0 or 99-1, but we have to be candid about the better reading and so, too, the lawyers have to be candid about what's the better reading. do not -- this goes to judges, so i'm talking to myself but also to the lawyers -- do not

stretch a precedent or the meaning of a statute, do not ellipses the key qualifying phrase in the -- [laughter] precedent which every time i see an ellipsis in a quote, i immediately look at the case to see exactly what -- o in a statute because so often that's where the bodies are bury inside these cases. oh, you left out that key part. so the text is critical. quote it in full, quote it accurately. be candid with the court. literal truth may be a defense in a false statement's case, but it's not necessarily a good practice -- [audio difficulty] misleading in context, that's not good for judges to do that. that's a standard i set for myself. lawyers also should be aware of not trying to mislead through literal truth, that is misleading in context. and then tone. civility is important. as well, i think, for the

lawyers. chief judge jones talked about earlier in your briefs not trashing the lower court judge. i think that's important for lawyers, and i think as a judge in my decision making i try to always keep the tone toward the lower court judge and toward my colleagues as respectful as i can realizing, number one, that's the way i like to be and, number two, i think that also helps set an example for a profession that needs more civility. civility doesn't mean giving up your principles, doesn't mean giving up your position, but it does mean for me trying to always display respect for the opposing position for the counsel and for the lower court judge. so those are some random thoughts in conclusion. >> judge martin? >> well, that -- judge kavanaugh had a number of good

recommendations, so let me just try to add a few more. i think it's important whenever possible to develop an affirmative reason, what i'll call a theme, for why the court should rule in your favor. and once you've developed that theme, the whole focus of your document is to then give the court a foundational blue print or outline of how an opinion could be written in favor of your client. in cases where the precedent is unclear, consider developing a, the factors that you think the court should consider in resolving this case because the appellate court is going to be very concerned about what guidance should be given to lower courts, to litigants for the resolution of future cases that may arise in that area. i can't stress enough judge kavanaugh's focus on civility. as a legal community, we're obviously a part of a greater

society that seems to struggle with that at times, and i know in my jurisdiction that most of appellate counsel appear before my court again. so be very cognizant of the fact, obviously, you want to zealously advocate on behalf of the client at this time, but if your planning a future foray to the court, you also ought to be focused on maintaining and enhancing your credibility with that panel. >> politico's mike allen this morning sits down with senator marco rubio to discuss the current debate over the federal budget deficit, the 2012 presidential race and a number of other issues also the florida republican wrote an op-ed piece in politico last month explaining how his family came from cuba to the u.s. after "the washington post" piece said the senator had embellished the city to campaign for office. this is part of "the politico"

breakfast series, the political playbook. it's expected to get underway in just a moment. this is live coverage on c-span2. [inaudible conversations] [inaudible conversations] [inaudible conversations] >> good morning. [inaudible] thank you for making that possible. people on twitter, this is hash tag playbook breakfast. i'd like to thank bank of america for continuing to support these conversations, and

i'd also like to recognize some special guests this morning. we have, we're fortunate to have several student interns from the urban alliance high school internship program. and this is a d.c. nonprofit, connects with local young people, companies in the area, and three of our students today are in attendance in term obviously the bank of america -- in terms of the bank of america. there's more information on your chair about being involved. and as you came in the, you might have gotten one of these cards, very exciting, baby's first book. the right fights back, first in a series of e-books that politico is doing about this campaign to sort of tell the behind-the-scenes story in realtime. i think we maybe announced the book in playbook, but this is the first time we've really talked about it. we have some fantastic interviews with the candidates

who talk about what it's like to be out there. and we go behind the scenes with all the advisers and sort of give you a sense of who is going to be, who's going to be, um, running these campaigns. so you can also get it at politico.com/book shelf. so that's it. thank you very much for being here. i'm going to bring you into the conversation in just a minute, but let's get started with senator marco rubio. senator, good morning. >> thanks. >> thank you very much for coming in. >> thank you. >> now, senator, as soon as you leaf here, you're going to make some news. you and a freshman senator, chris kuhn, are going to be going out and talking about what you call a reel bipartisan -- real bipartisan job creation plan. i feel like we need jobs, not jobs plan. what's different here? >> well, first of all, there are significant policy differences between republicans and democrats, and a lot of it is

based on significant ideological differences, and that's why we have elections. as far as the role of government in all that, you know, there's a big difference of opinion, and we're not going to come to agreement on that. that's why we're going to have an election in 2012 -- >> you're giving up already? >> well, there are issues we're not going to agree on, they're just not. >> let's talk about what you can agree on. >> that's why it's called the agree act. basically, it's went through everything republicans have proposed, the jobs could be sill has proposed, and we put those in one will. is it going to save us? is it going to turn around the economy? no. one is it's going the pass things we agree on, but i think secondly and more importantly, send a message that we can still get things done here in washington because one of the things that i think is having dramatic psychological impact on consumer confidence and the economy in general is the inability of this process here to function, to actually get to a result. we're going to try to move the ball forward.

>> i don't want to induce a rick perry moment here, but do you know what agree stands for? is. >> the actual acronym? no, i don't. [laughter] but i also didn't come up with it. what's important is what's in the bill, and that i know pretty well, and we'll continue to flush that out and hopefully add things to it. >> there's parts of it from the white house, there's parts of it from gop legislative plans. what's something in it that will make president obama say, man, i love the agree act. >> i think all of it is things that he's supportive of. >> like what? >> well, for example, the 179 provision. basically, it's a provision that allows small businesses -- it's not only limited to small businesses -- it allows them to write off 100% of the cost of, you know, capital purchases, any investments they make in their businesses, even things they lease in the next year. that's set to expire. that's really important for businesses that are looking to

next year saying maybe next year's not the right time to invest in your -- our business because everybody will have to pay taxes. i think there's things as well about immigration, the per-country quotas that are in place in terms of attracting high businesses. if there's going to be a criticism, it's, well, this doesn't solve all our problems, and we concede that from the start. but i think it shows we do agree on, and the things we do agree on -- whatever that stands for -- we're going to be able to work together. >> senator, you're trying to put a crack or a thaw on washington gridlock, and you look at this with a little bit of a fresh eye. you were at the top of florida politics, came to washington, you're a freshman senator. clearly, short-term political gain is part of the reason for our gridlock. what else? what's your diagnosis? >> part of it is a real, senate,

ideological difference. that's not just in washington, that's in america. you look across the country at the constituencies that elect someone out of san francisco is going to have a difference of opinion from somebody out of northwest florida. so what happens when somebody from northwest florida comes up here and serves in the house and somebody from san francisco, they're going to have a difference of opinion. >> just as a random example. >> exactly. and that's part of this conversation that we need to have as a country, and there are choices to be made and consequence toss each of -- consequences to each of these choices. i think americans want to find what government's role should be in accomplishing dual goals has been at the center of our political debate and certainly a core of what we're talking about today. >> there's one thing that every single person in the this room is interested in, and that's what's going to go on with the supercommittee. so let's start at the beginning. was it a good idea? is. >> i didn't want vote for it,

and i didn't think it was. ultimately, we have a responsibility, all of us do, to come up here and do our job. every single one of us ran because we wanted to, and that's why we have the process. when you create these extraordinary entities which are basically conceding that this republic as designed over 200 years ago can't deal with the most pressing issues of our time. secondly, i think the supercommittee is going to face the same challenges that the congress in general faces, and that's a significant, ideological differences about the role of government. and that's the decision this country needs to make about what kind of government it wants to have. >> supercommittee, they will succeed, they will fail? >> well, i don't want to say they're going to fail. even though i wasn't in favor of it, i would love nothing more -- >> not asking what you want. >> well, it's important because i don't want the headline to be that it's already failed, let's walk away from it. these guys and gals have worked really hard, and i don't want to diminish the work they're still doing, and i'm hopeful that

something meaningful will happen. but i wouldn't, you know, i mean, put a lot of money on it. i wouldn't put any money on it. >> there's your headline. >> certainly not 1.1 trillion, but let's wait and see. >> senator, you're a bit of a bridge. you were the ultimate state government insider in florida, and yet you managed very early to capture the imagination, energy of the tea party. people in this room didn't think you were going to be the senator. how did you do that? >> people in this room? people in a lot of rooms didn't think that. and on some days neither did i. and, you know, two things. i think the insider/outsider thing is not the way to analyze it. i think it's a question of why is someone going into office, because they want to do something or be? there's a fundamental difference between those two things. we're all guilty in the political process of wanting to be liked. nobody likes to be disliked, but there do come times in your career when you have to make a decision, am i in this because i want to make a difference or as a catapult for something else, e

want to be a celeb te or just want to be loved? i think too much in politics over the last 20, 30 years we've had a lot of people who have gotten involved because they want to be liked. and i felt that was one of the fundamental things that plagued our process and party. i, on the other hand, ran because i wanted to make a difference. that's the thing that motivated me to get into the race. i didn't see anybody else running that would stand for the things -- >> so how did you make that original connection with that sort of populist movement? what specific issue or language worked for you in establishing that -- >> well, you know, i wish i could tell you it was part of some brilliant calculation, but it really wasn't. i go t in the race, and when i got in the race there was no unelse saying the things that i felt. president obama moved very rapidly on things like the stimulus plan and moved on from there, obviously, to the health care bills. so it was a counterreaction to that. it was an expansion of government's role that people

weren't comfortable with. as i said, i didn't just want to be the opposite. i wanted to be an alternative. at a time when the republican party was still having this debate about whether republicans had to elect people that were more like democrats, and that never made sense to me. we don't need two democrat parts, we already have one. i think that helped us along the way. >> is that what you're saying, the moderate republicans are the equivalent of a second -- >> well, i wouldn't, the term moderate -- >> well, that is what you just said. >> there are very few people who like to neatly into these labels. there had to be a voice for limited government in america, and the republican party does well when it's a legitimate voice on behalf of limited government. i think that's where the republican party's drawing it strength from. >> how durable is the tea party? what i've asked before, is the tea party a mood or a movement? >> well, i think you're watching how durable it is --

>> so it's a movement. >> it is a movement. it's not just a movement, a sentiments that's found it way into a movement. this sentiments is not new, it just didn't have social media and the ability of people to connect together and work. >> so, senator n four years -- >> we will. >> because the things the tea party believes in, it's not going to go away. it'll continue to be a vibrant force in american politics. >> do you think it'll become more centralized? >> no. i don't think it'll ever become an organization. if it does, it'll end up quickly falling apart. i think it draws it strength from the fact that it's a legitimate grassroots movement from people who share difference of opinion on a bunch of issues but ultimately on the core of what government should be and are able to express it now in ways that with weren't availabl0 years ago. >> some of you heard me express this over an iced tea or whatever western having at

the -- whatever we were having at the moment, but whoever becomes the republican nominee will almost by definition have found a way, as you did, to bridge the establishment and the tea party. i wonder if that's what deludes the tea party we saw. >> i don't think so -- >> they, being the nominee. >> the nominees. as members of congress are now. what did you campaign on, what did you say you stood for, and then at the same time are you doing it now. i think it'll serve as an accountability mechanism not just to the individual candidates, but to the republican party. >> playbook's big on birthdays. um, senator, you're the second youngest senator -- >> yes, by six days, that's right. mike lee's six days younger than me. so he says. we haven't checked that out. [laughter] >> you're both 4-0. what sort of culture shock was there for you coming in to the senate with a fresh eye, what do you see in a place that's much older and very seniority-driven? >> there's this old joke i was told when i got here.

a year ago this week with us our orientation, so it's hard to believe you're a member of this legislative body where so much important measures have taken place over the years. and one of the senators, and i'm not going to embarrass him, so i can't tell you who he was. >> oh, please. >> no, what he said to me was, i know you're wondering how you got here, but six months from now you're going to be looking around and wondering how they got here. the truth be told, very nice people. i haven't had a single run-in with anybody that's been negative who work very, very hard, for the most part really believe the things they're fighting for. some of them are just really wrong, in my opinion, and have policies that i think are bad for our country. but ultimately, what you meet are pleasant people who -- and i think when you talk to people, a couple of people who have told us, joe biden told us this once, but i read anytime a book. it kind of calls it to light that you see there's something special in everybody there. obviously, i'm still getting to know a lot of these folks.

there's 99 other people, and you don't get to know them in 13 months. -- 11 months. a little disappointed by the lack of urgency on some of the major issues that confront our country. >> what did you think of seersucker day? >> when was that? >> okay. [laughter] >> i saw some people wearing it, maybe that was the day. i don't know. i'm not a big seersucker fan -- >> you with respect one of them. >> but we haven't polled it. i'm kidding. [laughter] >> senator, one of your clear interests is human trafficking b. i'd be interested in finish. >> i guess -- right, okay. >> i'd be interested in the how that got on your radar and what your -- >> well, the truth is, i mean, i've, obviously, been aware of it for a while, but there was a cnn internal, and i know i'll get fact checked, i think it was if march or april -- >> i remember, this was the one about craig's list. >> no -- >> okay. >> this is when demi moore went somewhere in africa, so i started looking at the issue in

general, and my wife got interested in the issue. and it's not just the sex trafficking which gets all the attention and rightfully so, but there's also all sorts of forced labor issues we face. i think what i've been shocked by is kind to have prevalence here in the 21st century of it and how in some ways our laws are are helping to contribute to it unwittingly, obviously. so you look at it on a domestic level. florida plays a big role and then internationally the issue that it's become. and just adopted a passion for it in terms of a human rights issue and one that really is one of the great human rights causes of the early part of the century, something i hope we can be able to work to eradicate because 50% of the battle is just being aware of it. >> tell us one fact about the problem that would surprise us. >> one fact about it? i think, well, one fact is that in this very city there have been diplomats who are bringing people here to work for them and not paying them. they're not allowed to have

contact with their families abroad, don't pay them, and we have a couple incidences going on as we speak. so i think that would shock people, walking distance from this building. for all practical purposes, slaves live anything their quarters. >> what's the number one thing congress could do? >> well, we have this reauthorization bill, and the important thing about it is that it really continues to become victim-centered which is what our laws need to be. victims are the most important part of the element because without yea testimony and cooperation, you're not going to get convictions. you're not going to bring people up on charges. so i think that's important. but the second thing is just calling attention to it. every chance we get. you know, the state department does a review of the countries, we tier the countries depending on their level of compliance and cooperation, but i think it starts with our own example. we have to show that we take it serious as a domestic issue and call attention the it. so i'll frequently go on the senate floor and give a speech about different, specific examples of domestic human

trafficking problems because i think we have to hold ourselves up to a higher standard if we're going to be a leader in the world on it. >> senator, you made a recent visit to the texas/mexico board. i wonder what you learned there. >> well, a couple things. there's really four key sectors where people enter the united states through, and one of them is that el paso border sector, and that's the one i visited. on the one hand, you're impressed by the progress made. no doubt there are places where they showed you the old fence with the barbed wire thing, and now there's a more impressive, you know, structure in its place that kind of has anti-tunneling features, it's a high fence, etc. and you can see where they're constructed in the right places has really helped make it more secure on the border. you also see the challenges associated with it. you know, there are areas that are much harder to secure for obvious reasons. it's kind of breathtaking to stand there and watch and realize you're inches -- we stood on this said of the rio grande, and on one side is el

paso, texas, which is one of the safest cities in america. they really brag about how well they've done, and on the other side is one of the most dangerous cities in the hemisphere in si dad juarez. those are, ultimately, the factors that are contributing to this, the fact that in their own country, people are not able to find opportunity. and when they can't provide a better life for their children and grandchildren, they're going to try to find a place where with they can do that. ultimately, that is a driver behind what we're facing on the border. >> you said on fox news that the republican party needs to be the pro-legal immigration party. how did the party get so on the wrong track on this issue? >> i mean, i want to be fair about it. we do have an illegal immigration problem, and people are becoming increasingly frustrated by it. americans are very compassionate, very open. immigration forever has been something we've bragged about. only has very recently has it become difficult for us to fully embrace n. the early 20th

century there are, obviously, examples of time where people reacted negatively to immigration. but you have this problem that's exacerbated by the downturn in the economy, 9% unemployment makes people even more upset, government spending problems makes people even more upset, and the sense that i get from talking to peek is there's -- we're being taken advantage of. >> but that clearly has occurred. >> it has. again, i don't think that's the calculation that most people have when they enter this country legally or illegally. for the most part, they're driven by the desire to provide a better life for their children and grandchildren. and it's a sentiment that i know well. it's the story of the people that we grew up around. but the question is how do you do that in the 21st century in a way that's conducive to a process that's controlled and orderly. and that's why we need a legal immigration system that functions, and i think that's what we need to focus on. i think it's pretty clear we're not in favor of amnesty. what are we for?

what modernizations are we for? there are things we can do to improve the illegal immigration system and make it work better for everybody involved and it would, in fact, help to deal with the illegal immigration problem. >> what's the biggest single thing that would help? >> you know, the visa program is broken. we don't have a workable vista program that takes into account the needs of the 21st century. our guest worker program that's adjusted to economic need. when unemployment's at 4%, the need for guest workers is much higher than when it's at 9%. why can't we provide a system where there's a willing worker overseas, there's a needed job that no american will fill, that's been verified, in the united states. they apply in their home country, they receive a work permit, they enter the united states, they work at that for a period of time, and they come back fen when they're needed. if we had that system not only would it make us more secure, it would cut down on overstays.

once they get in, they're atrade to leave and never be able to get back in again. >> what's something your party could do to do better with latino voters? >> i think the number one issue in the americans of hispanic descent, among them, is the same as it is nationally, and that's jobs and the economy. unemployment is higher in the hispanic community than as around the country. joblessness -- >> but the party took a dramatic downturn from where president bush was to where they were in '08. what accounts for that? how do you do better? people say if you don't do better with the hispanic vote, we won't have another republican president. >> i don't do the political calculation on that -- >> you don't? you should. >> well, to say the hispanic community, well, it has different needs in different parts of the country depending on their heritage, where they came from. there's commonality between puerto rican voters and central florida and mexican-americans in the southwest. and there's also differences.

but at the end of the day what really drives people, what brings people to the united states is the desire to provide a better life for their income families. so which political party is going to have an economic agenda that offers that. and i think republicans have to make a better case, myself included, that the american free enterprise system is the best system in human history to allow people not just to provide for themselves, but to give their children and grandchildren better opportunities. the rhetoric on immigration is hurt because it's hard to get people to las vegas to that argument -- listen to that argument if you thety you're not being friendly to them. it's important we be for pro-legal immigration measures. ultimately, what will help the republican party do better among all americans, including those of hispanic descent is a vigorous defense of the free enterprise system. >> [inaudible] >> hopefully, a lot of good things, but we don't know. that's the answer. we've never really confronted a situation like this in our

hemisphere, a country run by people in their late 70s and early 80s. they're trying desperately to try to institutionalize, protect their economic gains. it really has become kind of a communist military dictatorship where the government is really in business and cuba is their land holding -- >> what's the deal with this, like, they can sell their cars now, they can buy houses? >> yeah. i mean, it really is sad to think -- it's almost like throwing crumbs off the table and saying, okay, we'll allow you to eat a crumb. people were allowed to, first of all, buy and sell property based on what property rights laws? are they going to rewrite their property rights code? it doesn't get to the fundamental issue in cuba. the people of cuba, they are a free people, can choose any economic model they want. they can choose a western european model, the american model, that's up to them to decide what kind of economy they want to have. my fundamental concern in cuba is not the economic model they

choose although i'll have some suggestions. i think my underlying concern in cuba is political freedoms, and those don't exist. none whatsoever. and that is what we should be focused on. if the political openings come and the people in cuba have a voice in the process, they can choose the economic system for themselves, and that's what we should be a voice on behalf of is a political opening, and that's not hang. >> no. any relations you have with cuba is all on their terms, 100%. a perfect example is travel to the island. i think it's well intentioned, but it drives hard currency. it is a major source of hard currency which the administration concedes is part of a balancing act. it's hard currency they use to keep themselves in power. the second thing is leverage. what happens after the castros disappear? if there's still economic sanction on cuba, we'll have a lot more influence. because now we can go to them

and say you want a relationship with the unite, you want a normal economic and political relationship with us, you have to have political freedom. you have to have a democracy, and you do that, and you'll have a friend in us. so the leverage of the sanctions is critically important because that moment you outlined is coming. >> i'm going the bring you all into the conversation in just a second. i think we have a microphone that you can grab. senator, you've carved out a sort of -- on foreign policy you've carved out a sort of stripe as a bush-style hawk. you were ahead of the president on libya, he eventually got to where you were roughly. if u.s. had credible evidence on syria, if u.s. had credible evidence that assad was about to commit a major -- >> well, let me just say the evidence kind of is already there. i think he's willing to kill anybody who wants to overthrow him. i don't think there's any price he's not willing to pay, i don't think there's any act he's not willing to take in order to place himself in power.

foreign policy is comply dated because no two situations are alike, and you outlines syria versus libya. two different situations, and i'll outline why. libya had an organized rebellion, they were armed, they were making progress. at one point they were making tremendous progress and were on the verge of toppling the quaff my regime, and they specifically asked for a no-fly zone. you don't have that in syria, and quite frankly, i don't know that we want that in syria because one of the things the assad regime is use anything syria, they understand violence. they understand how to deal with violence. so if they're con front with the a violent uprising in syria, they know how to crush that. that's a hard thing, by the way, to add advocate for when i'm sig here in washington, d.c. and they're getting their heads cracked open in syria. that's the thing that threatens the regime, is a peaceful movement. i would think the ideal scenario is not an armed conflict, but

rather a peatful one that -- peaceful one that actually continues on the route t on now. turkey' been very forceful. i think assad's running out of time. your questions' a very difficult one, and i don't know if there is a situation where the u.s -- and there's difference in opinion. joe lieberman's much of more hawkish ab it. but i don't know there's a military engagement the u.s. could get involved in, even an international coalition, that could prevent that in syria the way it was in libya. >> you saw the night the south carolina debates, rick perry said he would start foreign aid at zero and then negotiate from there. what do you think? >> i think the concept, and i don't know exactly what they meant by it except i think the concept is they're saying everything needs to justify itself. well, i think everyone would agree with that. when has it ever been a good idea to throw away money? >> for a republican, you have an interesting idea about foreign aid. >> no, first of all, it's a very

small part of our overall budget. we don't have a choice. we're not luxembourg. we don't have a choice. virtually everything that happens in our economic life is deeply influenced by what's happening around the world. europe may seem very far away to some people, but you may not know that your pension or retirement is informed in europe. and -- invested in europe. and certainly invested in things that are going to be impacted by europe. and europe is invested in libya. and mass migrations that come as a result of that. my point being that the u.s. doesn't have a choice but to be involved around the world, and many of these countries the only thing they know about the united states, for example, in africa, is that we provide anti-hiv medication. a, it's a humanitarian thing to do, and i think the united states -- we're not just a smart people, we're not just a hard working people, we are blessed. there is no nation on earth, no people in the history of mankind has had more blessings than the american people have had. and with that comes an obligation. and i think we have to live up

to it, and that's why foreign aid is o important if you're not involved in a country, if you're not giving foreign aid in egypt as an example and some other places, then what do they care about what we think about anything? you have to use it as a level of influence. >> do we have a question? yes, sir. >> it's like a talk show. this is good. [laughter] >> good morning. my name's tom meyers, i'm from the aids health care foundation. >> good good morning. >> i wanted to talk briefly about aids in the united states, specifically the aids drug assistance program. it's a federal program that provides aids drugs to people of low income. as you know, senator, florida has one of the largest waiting lists in the country for this program. recently, your office through ahf has been approached about shifting funds from less critical uses in the aids budget and oh places -- other places to the adh program. given the recent studies that

show that treatment not only saves lives, but is the most effective way to prevent infection, preventing up to 96% of all infections, would you be in favor to shifting funds to fix those waiting lists and make sure the americans who need them get them? >> first of all, obviously, i need to fully understand. we're talking about shift ago lot of money within one budget to another, and given the tough economic times, i would hate to make a commitment to you today that then i have to come back to you, but what i will do is look at it more carefully. i think on a broader perspective it calls anticipation to one of the issues i think we face, and that's this balancing act as a people. on the one hand, we want prosperity, on the other hand we want compassion. i think what you're talking about, we are too rich, too prosperous and, quite frankly, too compassionate a people to allow people to die or allow

people to suffer because they can't afford access to life-saving medication. and so, ultimately, we've accepted that in this country, it's something we want our government to be involved in doing. the fundamental question, and obviously your issue is very specific, you're actually identifying where the money will come from. a lot of people asking for funding requests don't do that. we'll look at that and take it very seriously. more importantly, at the fundamental level is in the proper role of government, and i think for things like this it is. as a people, we're not prepared to say we should leave the disabled, the infirm, the elderly to fend for themselves. on the other hand, these programs all have to be created with an eye on the fact that we have to have an economy that can afford these things, that can help sustain them. we have to have enough prosperity to afford these things we want our government to be doing, and i think hiv is an example of something we've made tremendous progress in as a nation. it was a crisis when i was growing up in the early '80s that, basically, was a death sentence, and today you have

people who live normal, meaningful lives with hiv. and because of not just advances in medications, but access to very expensive treatment regiments. thanks for your question, and we'll certainly answer you as early as today, hopefully. >> to go home for a bit. back in florida republicans hold strong majorities in both chambers of the state legislature, a strong majority of the congressional delegation, and everyone who looks at the presidential race say it's a toss-up. howhow could that be? >> i think the democratic party's run better candidates and run better elections. i think at the macro level, the bigger picture, florida when it comes to voting for president or even for governor, you know, people are a little bit more open-minded. you know, if you're a party line voter or someone who has identification at a member of a party, you're probably not as well informed about a legislative candidate as you are about who's running for golf or

president. a lot of people who are registered democrat who have voted for republicans in the past and vice versa. many people that are registered as republicans in southeast florida that will vote for a democrat in an election. hence, you see this back and forth between george w. bush winning two elections in florida and then barack obama winning the election in florida, and now we'll see. it is a toss-up state. i guess that would make it, i guess, a purple state. and i think it's a place where all the national issues are front and center. it's one of the reasons why i always thought florida should be early in the primary cycle. >> and what do you think is the republican nominee's chance in florida? >> good. i think at least 50/50, but that vote's going to have to be we wered. >> what will the nominee need to do to get florida? >> i think the same things they're going to have to do to win nationally. and, again, that's kind of a testament to florida's microcosm nature. first and foremost is provide a compelling vision of how are we going to make things better?

the 21st century can be the american century. here are things we need to do, and here are the things stand anything the way, and do it in a compelling way n a positive, optimistic way. people at their core even though they're pessimistic about the short term believe things can get better, and they're looking for someone to show them the way, and i think it's important for republicans to provide a clear contrast from the outcomes they think they will generate as compared to the president's record over the last four years. >> you gave a major speech in simi valley, california. what was the ronald reagan library hike? >> very impressive. i grew up in if era of ronald reagan. i guess i was in third grade when he was elected, and i was high school when he left, so he kind of had a major influence in my upbringing. i grew up in ronald reagan's america, so just to be there and see some of these things -- and, obviously, the plane is pretty impressive. meeting mrs. reagan was

fantastic. their marriage and the model that it is in terms of how committed they were, so we were at dinner, and my wife was many with me, and jeanette starts asking mrs. reagan about her husband, and she turns to her and says, you know, ronnie -- she called him -- used to send my mom flowers every one of nancy's birthday thanks her for having me. and i'm just thinking, oh, gosh. [laughter] and he'd written over 700 love letters, and i'm just thinking, man, i am in a deep, deep hole. i'll never catch up to the girl. >> senator, tampa's going to be home of the republican national convention. what's that going to be like? >> it's going to be fun. it's not just tampa, it includes st. petersburg. it's a great place to be. they both have fascinating downtown areas with a lot of entertainment establishments. i encourage people to go out into the gulf and find a way

whether you're into sailing, boating, fishing, the beaches particularly in st. pete are a little nice. it'll be warm, it's late august, a little muggy. hopefully the mosquitoes won't be too bad. and i think people are going to have a great time. >> all that's fine, but scott's saying what do i do at night? >> at night? is. >> yes. >> well, it depends who you are. like i say, there's a lot of very fine entertainment establishments in the downtown areas of tampa and st. petersburg. i think people will have fun there. >> and what's the techhouse that has the world's largest -- >> oh, burns? >> yeah. what's that like? >> i've only been there a couple times. >> what's another couple places we should go? >> in the tampa area? >> actually, leroy sellman's place is really good, that's the one i'd recommend. he was a hall of fame player for the tennessee bucks. he -- tampa bay bucks. people should try that, they'll like it. >> when we're in tampa, it might be that you'll have a big

entourage with you. >> entourage? >> are you prepared to be president? >> to be president of what? united states? i'm not running for the president of the united states. i'm a united states senator. and i think -- let me just say a thing about the presidency, not about me, but just in general. ultimately, what you want in a president is the ability to analyze situations and make decisions based on sound yum. and oftentimes -- judgment. and often times particularly on foreign policy you're not making decision between two good choices, it's between two less than ideal choices, and you're trying to figure out which one is better and which one is worse. so i think that's the quality to look for. i'm not running for president, okay? but i think for the most part as a senator many of the decision making processes are similar. you have to take positions on issues that you're going to be judged by history on them whether you made the right or wrong choice. so, for example, when i've spoken out on some of the foreign policy things that some in my own party are in the mood we should focus on domestic things, and i get that's very appealing, but if you look at

the big picture and analyze how that decision will be looked at 10 or 15 years from now, i think to disengage 10 or 15 years from now will be a major mistake. it's something i hope i'm developing in the united states, and it's the kind of quality i'm looking for from our nominee and from our next president. >> senator, you've said you don't want to be vice president. why not? >> because i'm focused on my job in the senate. what's wrong with the senate? what's wrong with a u.s. senate office? the question is where can i have a bigger influence on the things we're working on. and i ran for the senate was i wanted to serve in this institution, i wanted to do the kinds of things i'm working on now, i wanted to be a voice for florida, and i'm length learning how to do that. and i'm enjoying that. that's what i ran for. so the question is, why not the senate? why are is we come to believe that being in the senate is no long aeromeaningful place? >> in 90 seconds i'm going to come back to you for another

question. you commute down to miami, your wife jeanette, two sons, two daughters are down there. how's the family adjusted? >> it's been tough, and we still think about whether we should move up here or not. it hasn't been, you know, some days are tougher than others. tsa hard to realize -- it's hard to realize you're not around on tuesdays and wednesdays. it's difficult on the kids on sundays, and it's difficult on me. >> what's the age range? >> the girls are 11 and 9, and the boys are 6 and 4. >> what are the considerations to move sneer. >> we have very deep family roots in miami, all her family, my family. i like getting back to the state, i like connecting with people, i like going to the grocery store and having people tell me nice things and not-so-nice things. i like to do those sorts of things. on the other hand, i mean, i still believe and, you know, i'm not sure i'll always get this right, but my number one job is still husband and father. it's hard to do that when you're not there. so it's an ongoing struggle.

we've got to figure that out. >> you have both a catholic church here and at home. >> i try to go every day. i don't always go every day. one of the great treasures of the catholic faith is the ability to go to mass every day. we have a great chump 90 during. -- but they also have confession every day at 11:50 which i've found very useful in this process. [laughter] nothing bad. >> no felonies. >> no, no felonies. [laughter] but that's a pretty low standard, you know. [laughter] so we -- and then, obviously, on sundays. and we've also, you know, established a relationship with a non-catholic church that we've enjoyed going to services there, and we try to still go from from time to time. >> what kind of church is that? >> well, they're align with the the southern baptist convention, but they're -- their motif is really nondenomination, and they just do a great job of teaching the written word. >> you say you've established a

relationship. >> yeah, we started going because we had friends that went there, we really enjoyed their sermons, you can see them online, their pastor's very good, and we enjoy listening to that. but as i said -- and i don't, at the end of the day, have found that, you know, our has been a source of strength and really a source of clarity and gives everything some perspective. i mean, when your perspective is eternity, and i'm not saying mine always is, believe me, i'm as guilty as anyone, you get a better perspective on what matters and what doesn't. >> i wonder if we have a question. yes, sir. >> [inaudible] >> morning. >> you mentioned your trip to el paso. >> and just say who you are. >> sorry. fred donahue. >> steve hawkins. you mentioned your trip to el paso and the difference between ciudad juarez and el paso and the immigration issue. but surely it also reflects the

war on drugs and how that's being conducted. right now the mexican people are considering whether it's worth conducting this campaign at all. how should the united states make the case that it's worth continuing this? >> just pass the microphone two rows behind you, that gentleman will be next. >> yeah. i think that the mexico deserves better. mexico deserves -- it has all the conditions necessary to be prosperous and provide great opportunities for it people. you can't do that when drug gangs run portions of your country. and i think the mexican people understand that. they're paying a very high price. it's very similar to what you saw happen in colombia and the efforts that are still happening there to try to gain control of their nation and sovereignty. on the other hand, we've got to continue to encourage that and, quite frankly, in dealing with the domestic consumption problem which is a driver of in the. anytime you talk to the mexican government or the mexican people, they'll remind you very

quickly that where these drugs are headed are to american cities where americans are buying them. in order for us to have a moral standing on the issue, we have to do a better job of addressing the domestic issues we face. i think mexico deserves better. one of the great developments of this 21st century will be if mexico can emerge from this. imagine the united states bordered by canada and mexico and what it would mean for us as a nation. i think we should be helping the mexican people in that regard any way we can. >> okay. sir, you're on. >> hi, good morning, senator rubio. thank you very much for hosting this, mike allen. i'm a sophomore at the george washington university school, i'm a little bit of a political wonk, so i was wondering if you could tell me if you're intending to weigh in on the senate race in florida. i know connie mack just threw his hat into the ring. >> it's an interesting race that

continues to develop, and i'm not going to get involved in the primary. ultimately, my hope is to help the republican nominee because i want us to get a majority in the united states senate. i think we can do a lot more if we were in the majority. but i don't intend to get involved in the primary. we're blessed to have people like that to offer themselves up for public service, and we'll see how it plays out. >> you're unique in this room, you're both an autobiographer and a biographee. >> good luck to the people writing a book and to me as well. i think as far as writing a book, it's not something -- people are interest inside by background and how it helped me arrive at certain political conclusions. i have something i want to say as well about some of the issues facing our country and kind of -- one of the questions i get all the time is what is it like, you know, what have you, what