of it to take you live to the senate will come to order. the clerk will read a communication to the senate. the clerk: washington, d.c., june 30, 2014. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable carl levin, a senator from the state of michigan, to perform the duties of the chair. signed: patrick j. leahy, president pro tempore. the presiding officer: under the previous order, the senate stands adjourned until 1:30 p.m. stands adjourned until 1:30 p.m. >> the senate is out of legislative session this the week of july 7th for the independence day recess period. live senate coverage when members return next week on

c-span2. and live today at 4 p.m. eastern here on c-span2, chilean president michelle -- [inaudible] will be at the brookings institution. she's meeting with president obama this morning. >> you had broadcast tv and then cable came along, and then satellite. what if satellite had said, you know, we're different than cable. we have a slightly different technology, so we're going to take that and not consider ourselves to be what is in law called an nvpd. so we don't have to negotiate. but satellite didn't do that, and so why should aereo be able to come up with a different technology and say we don't have to negotiate for copyrighted material? we've said from the beginning this isn't about being a opposed to technology. there's still a technology there in aereo, and maybe there's a business model for it. but that doesn't mean you can evade the law to run a business. >> more about the supreme court

decision against aereo with the head of the national association of broadcasters, gordon smith. tonight at 8 eastern on "the communicators" on c-span2. >> booktv sat down with hillary clinton in little rock to the discuss her newest book, "hard choices." >> i learned, well, i've learned before but certainly as secretary of state to expect the unexpected. nobody expected the so-called arab spring until it was upon us. and we have to learn to be agile and ready for the unexpected while we try to build the world that we want, ps for our children and -- especially for our children and now for my future grandchild, but we've got to be aware of the fact that all these other countries, all these billions of people, they're making hard choices every single day. we have to be ready for that. because i am absolutely convinced that we have to continue to lead the world into

the kind of future that we want. we can't sit on the sidelines, we can't retreat. we're going to have setbacks, we're going to have disappointments, but overtime our story -- over time our story has become the dominant story. it represents the hopes and aspirations of people everywhere. that's what i want americans to understand, and the main reason why i wrote this book. i know there's a big debate going on about our role in the world and we have some real unfortunate consequences still to deal with from prior decisions and the like. but we can't abdicate our responsibility. how we define it, how we execute it will be the stuff of political debate. but the world needs us. america matters to the world, and, yes, the world matters to america for our prosperity and our security and our democracy. >> hillary clinton spoke with us about her decision making

process, the perceptions of the united states around the globe and some of the decisions she had to make as is secretary of state. the full interview airs on booktv saturday, july 5th, at 7 p.m. eastern and sunday, july 6th, at 9:15 a.m. eastern. >> solicitor general donald verrilli discusses his role as the government's top lawyer including his relationship with members of the president's cabinet and the process for deciding how to argue cases before the supreme court. supreme court justice elena kagan, who also served as solicitor general, introduces mr. verrilli to the seventh circuit judicial conference in chicago. [applause] >> well, diane, as i recall, that was a lot longer than the introductions that frank used to give me. [laughter]

no, it's such a pleasure to be here. it's always a pleasure to come. you schedule these dinners at the worst time of year, i have to say, but i wouldn't miss them. and, so thank you for inviting me once again. and thank you, diane. this is, of course, diane's, might be diane's first year and my first dinner up here with diane, and the word back in washington is that she already is doing a pretty awe. >>some job -- a pretty awesome job. am i right? [applause] not that everybody doesn't miss frank easterbrook. [laughter] and the extraordinary service that frank easterbrook did for so many years. and thank you again for that, frank. [applause] thank you, diane, for taking over this responsibility and doing everything that you're doing. you know, i always, i worry

sometimes a little bit when i start thinking about this event. i start thinking, well, what am i going to talk about? they're going to want me to say something. but you guys always invite such great people, like my favorite people. so i just say, that's okay, i'll just introduce don. [laughter] like i think it was last year, i'll just introduce the chief justice, or i'll introduce justice stevens. so that is my task tonight, and it is really a pleasure because there is no lawyer that i respect more than don, and it's great to be able to share a little bit with you tonight about why that's so. now, sometimes people ask me, you know, it's like, actually, impossible to see your notes up here. impossible. [laughter] i mean, is there a light, or -- [laughter]

it's like, what do i -- [laughter] sometimes -- i hope you have your speech committed to memory, don. [laughter] sometimes people ask me, they say do you miss being solicitor general? [laughter] good, we're back in the 17th century. [laughter] sometimes people say to me, do you miss being solicitor general? and i think, are you kidding? [laughter] are you kidding? did you see what we did to general verrilli last month? [laughter] which is sort of true, i have to say, that when you're up there as solicitor general -- happened to me, it's happened to don -- when you're up there as solicitor general, you get treated a little bit like a punching bag or a pin cushion or pick your metaphor. but sometimes it does not feel all that good.

now, you probably know the, i don't know, the high point, the low point of this, you know, was the health care case, right? everybody knows about the health care case. don had a little bit of a sort of a coughing episode at the beginning of that case, right? people know about that. people are afraid to laugh because -- [laughter] people are afraid to laugh because it actually went a little bit downhill from there. [laughter] not because, not because of anything don did, just because of, like, man, were we tough that day. i mean, just question after question after question for whatever he was up there for, i think it was an hour that day. and i do not think that we let him get in more than two sentences in a row. for an hour. just bombarding him with questions. and when you're now on my side

of the bench, you sit there, and you kind of look at it, and you think, man, that is a bad job you got there. [laughter] and i am really glad i'm not doing that anymore. [laughter] and, you know, but here's the -- it's true, don, this is true; we only do it to the best be of them. [laughter] that's what i used to tell myself when i was solicitor general. [laughter] and i used to tell myself this a lot because, truth be told, the chief justice has eased up a little bit in the transition between me and don. no, but it is true, actually, because the solicitor general argues the most important cases, the cases where there are often the fiercest views, the fiercest disputes. so cases which really matter to tokes. to folks.

and then, you know, don -- because he's so excellent and, you know, let's go back to that health care case. do we remember who won that health care case, right? [applause] and he won it really for a reason, and this is true of, you know, i asked my clerks to come up with a list of all the cases that don has argued, and i was looking at them on the plane. and i was thinking don verrilli won every case that he possibly could have won. indeed, i was thinking he actually won a couple that there was no way i thought he could have won. [laughter] and so, you know, he lost some, but they were ones that he was never gonna win. [laughter] and that's saying a tremendous amount, that don always figures out whether it's in his, in his oral arguments or in his brief,

he always figures out how to present, you know, the argument that if the government can win, those are the arguments that are going to get to a win for the government. and that's an extraordinary thing looking over that list of cases and thinking he won every one where it was even possible that the votes were there. and, you know, the reason -- as i was saying -- that we give him a little bit of a hard time is the disputes matter, but also because you know that he's up there, and if you don't give him a hard time, he's going to make some headway. so you better give him a hard time before he starts making that headway. maybe, you know, some of thecvni justices don't quite, don't quite want him to make.

now, i've known don for a long time. not just since i've been on the court. or not a long, long time, but i known -- i know don better than any of the other justices. we served together in the obama administration in the department of justice. and, in fact, don, the first time i really met don was when don was vetting me for the solicitor general position, you know? he was the person who i came to washington to see and laid my whole life bare, and he was sort of exploring any problems that i might have, any difficult issues that i might face. and, you know, can i say that having been through this a number of times, one is not guaranteed to love one's vetter. [laughter] in fact, sort of the opposite. but don treated this job with such diplomacy and such tact and such sensitivity and such skill,

there was nothing that don did not learn about me. i feel often uncomfortable talking to don, actually. [laughter] because i think i'm talking to him, i'm having a conversation, and he's, like, thinking about what i did when i was 13 years old or something like that. [laughter] but that's how i first got to know don. and then when i arrived at the justice department, don was already there because i had to go through a confirmation process. so don had been there for a few months. and don himself did not get, like, a hoity toity job right off the bat. don said, my clerk showed me a newspaper article where he said, said verrilli said he would have taken any job including sweeping the floors to work in the department of justice. that's pretty much what they gave him. [laughter] it was like, you know, assistant

assistant deputy deputy assistant deputy to the assistant attorney general, something like that. [laughter] but, you know, don took that job which was so beneath, like, the kind of lawyer don was and the kind of reputation that he had in washington which is glowing, glowing, glowing. i mean, you walk around washington and the washington bar, and it's like everybody's favorite lawyer, and everybody's best lawyer is don verrilli. he went in, and he took this job that was really not all that much of a job because he just thought he wanted to do public service. and it's actually, you know, when i was concern. [inaudible] and i used to think about lawyers who were great role models for students and why they're great role models for students, you know, it's people who manage in all, in their professional lives, in their careers to combine private

lawyering with public service, to always have a sense no matter where they are that there is a way to give back. and certainly, that was true of don, that when he was at jenner for many, many years, you know, he did every year like clockwork 10%, sometimes more of his hours were pro bono hours. he did these extraordinary death penalty cases, some of which took, you know, more than a decade to complete that were emotionally draining, i'm sure, in ways that i can't even imagine. and then he decided, you know, after however many years that it was really time to devote himself full time to public service, and and he didn't really care whether he was going to be sweeping the floors or what not, that it was time to do that. and so he went into the department of justice. but he came in in this sort of junior role. and then when i walked in the department of justice, it was about three or four months later, and he had become the

department wise man. it's like everybody in the department of justice, if you had a problem, if you had a substantive lawyering problem, if you had a personnel problem, if you had just like i can't stand the fact that, you know, the fifth floor is trouncing the third floor kind of problem, i mean, everybody just found their way to don verrilli's office. i used to think, like, does this guy have any work to do? [laughter] because he was sort of playing psychologist to the entire department of justice. and playing legal adviser to the entire department of justice. the people would go to him and say i have this really hard problem, how do i do it? and that's what don verrilli is. in addition to being an extraordinary lawyer, he is, he has these incredible personal skills, and he is an incredible problem solver.

and, and he has this sort of total professionalism and integrity that, of course, the best lawyers have. and i see that all the time. i hear about it, you know, i was sg myself, and i got to know the folks in the sg's office pretty well and still talk to them. and i sort of hear stuff about what's going on in the solicitor general's office. and i have to say i get sometimes a little bit envious, because everybody in this solicitor general's office talks about don like they have never seen his like. and i kind of think, well, you know, what was i, you know? [laughter] chopped liver or, you know? but the way that the people in the solicitor general's office feel about don is just such a testament to what leadership can be. and then in the court we see not

only month in and month out his fantastic lawyering skills, but also this kind of consummate professionalism and integrity. i'll just tell you one small story. which was don argued a case called clapper v. somebody or other, and i guess it was clapper v. the aclu. and it was a case where the wireless surveillance ram was being challenged -- program was being challenged by the aclu, and people who could not say that they had themselves been tapped. and the government was arguing that they had no standing to bring the suit, and this was an argument that don made that i have to say i was giving him an especially hard time on. i wasn't allowing him to speak, and i was interjecting lots of questions. this the course of this argument -- in the course of this argument, don told the court that, in fact, that if a

person was, if a criminal prosecution was brought against a person as a result of evidence coming from a -- [inaudible] that that person would be notified, and that that person would be able to challenge the program so that the program would be challengeable by somebody. then it turned out a few months later that notwithstanding that don had vetted his brief and his argument with all the right people, notwithstanding this, in fact, the national security division had not been doing that. and don went on a one-man campaign to insure that this would change. and i'm sure that part of the reason don did this was because he thought it was the substantively right result. but i'm sure part of the reason was that he had told the court something, and he was going to make it true.

even though there had been a little bit of a snafu in offices other than his own. and don, if i tell you that we all noticed that and we all appreciated that, the kind of seriousness with which you take your job and you take what you say at the podium to us, your incredible professionalism and integrity as well as your amazing lawyering. and so, don, you are, i guess be, finished for the year. we're just writing all our opinions, and don is sort of carry-free and having a -- care-free and having a vacation. [laughter] but i want to say that i look forward to kicking you around next year again. [laughter] [applause]

>> wow. thank you very much, justice kagan, for that unforgettable and amazing, amazing introduction. [laughter] which will, was a good deal longer than my remarks. [laughter] [applause] especially because justice kagan's quite right, you can't see a thing up here. [laughter] so we're just going to have to stumble through it. chief judge wood and members of the seventh circuit and judiciary and julie and members of the association, i'm really honored to be here with you. it's a special treat for me to be in chicago. i spent more than 20 years with jenner and block and have gotten to see a number of great old friends here tonight, and which i'm very grateful for. this is a city i deeply love, so even though i'm only here for a day, it's a happy day for me to be here. what i'm going to do tonight is just talk for a few minutes about my job, and then what i'd

like to do is see if we could have something approaching a conversation and that we can do questions and answers, i hope, for a good chunk of the time we have this evening. my experience is that tends to be more interesting and fun for you and for me both. so the job of solicitor general is to represent the united states, and that's really an awesome thing. we file a brief, and we file it, i file it on behalf of the united states. i stand up at the podium and fete the bejesus -- get the bejesus beaten out of me, and i'm doing that on behalf of the united states. but what does that mean exactly, to represent the united states? well, in one sense it's, of course, quite straightforward. i do what most all of you do. i come up with arguments, i think about strategies, i put them in briefs, i argue them at the podium, and that's, you know, the work of the solicitor general doing that. i'm going to just take a minute

and talk about what our office does in that regard, because it's really quite amazing if you think about it. we've got 21 lawyers in the office, 16 assistants and then four deputies and an sg, and then we have four fellows, young lawyers with us for a year. and here is what this group of lawyers accomplishes every year. we brief and argue 25 cases as parties on the merits or sometimes 30. we'll brief and argue 25-30 cases a year as amicus in front of the course. we'll file 10 or 15 cert petitions a year, 5-600 opposition briefs to cert a year, and then by law the sg has to approve every appeal that the united states takes when it loses in lower courts, and we lose a lot, as it turns out, about 2,000 times a year. and so we've got to go through a process of approving those appeals, and that's actually quite a serious process. so it's really, if you think about it, that's an amazing

amount of work that this small number of lawyers do every year. now, i'm sure judge easterbrook would say we're just pikers compared to his days in the office when it was the golden age -- [laughter] and giants strode the earth -- [laughter] each lawyer was responsible for the total that i just described. [laughter] but with that as it may, i do think that i like to brag on the office because i think, if you think about it in this way for those of you practicing in firms as i guess most of you here, you know, our budget's about $10 or $11 million a year, and you know how much litigation you get in your firms for $10 or $11 million a year. contrast that to the amount of litigation the united states gets and the taxpayers and citizens get for $10-$11 million a year. the it's really quite an amazing thing if you think about it. and that's, you know, it's a lot of work for those lawyers to get all that done. but, of course, that's actually the easy part, getting that work done. by far the harder part is figuring out what the position

of the united states should be. and it's really an interesting thing to contemplate, because the relationship between a solicitor general and the solicitor general's clients and the united states government is really quite different from the normal attorney/client relationship. i was in private practice for many years, and in that relationship i would come up with arguments, strategies, you know, talk to a client and say, look, here's how we should approach this case, we should make argument a, we should make argument b, argument c is a cam cause is city mission and -- cam cause si mission and it'll destroy the case, we can't do it, and the lawyer says, well, i hear you, but you're making argument c. unless you thought it was unethical, you did it because the client made the decision about what the position of that client would be in court. in the job of solicitor general, the situation's pretty much the opposite. one of my predecessors, francis

biddle, said in 1940 that for the solicitor general the client is but an abstraction. then he went on to spout some highfalutin language about how the solicitor general's sole job is to apply his professional ethos in the rarefied ambience of his experience and judgment. so that bit about the client being an abstraction is completely wrong, and i can tell you that on the basis of the many angry phone calls that i have received there agency general counsels and occasionally from cabinet officials who are unhappy about the positions that we've decided we are going to take on behalf of the united states. when they think of themselves as clients in the way that private clients think of themselves as clients, ie, they should be in charge. but the truth of the matter is that they're not in charge, that y;[ok solicy gets to make the judgment about

what the position of the united states will be even if it means overriding the interests and sometimes the very strong interests of cabinet departments or agencies. if, for example -- this is just hypothetical -- the epa were to lose a significant case in a court of appeals, have one of its regulations struck down and feel that that's an important loss and be very insistent that we're going to take the case to the supreme court, the sg in that situation can say -- and sometimes does say -- no, we're not going to take that case to the supreme court even though we agree with you that the regulation's very important, even though we agree with you that we think court of appeals made an error of administrative law that might warrant review in an appropriate case. that this case may, for whatever reason, may present a terrible scenario for taking that case forward. and if we were to take the case up on this set of facts and lose the case and lose the point of

law that matters to us, then it's not just going to be your agency that suffers, but it's going to be the entire,tive branch that suffers -- executive branch that suffers, and we're not going to do that. so in that sense even though the epa might actually be the client and party in front of the court, the interests that we're advocating and the interests that we're considering is the interest of the united states which is bigger than the interests of that one entity. and it might not surprise you to learn that, actually, the executive branch is quite a behemoth, and there are lots of different institutional views within the executive branch about what the position of the united states ought to be on any given case. and there's really sort of structural, i don't know antagonisms is too strong a word, but tensions baked into the system. for example, the copyright office tends to think most of the time it wants to favor a position of robust reading of

the copyright law protections. the commerce department most of the time is worried about whether that's going to inhibit innovation. state department most of the time thinks that the united states courts ought to be open so that, to hear claims against foreign officials for violations of international human rights, the defense department and the intelligence community is worried that if our courts are open in that way, then maybe other nations will feel free to haul their soldiers or their operatives into their courts and, therefore, has a different perspective. and a big part of the job for an sg is to resolve those kinds of conflicts. and come up with a position for the united states. and one thing i have learned in the course of my time in the government is that process, thorough, fair, transparent process is absolutely critical to resolving those kinds of conflicts and coming up with the

best judgment about what the position of the united states is. i learned this lesson the hard way, and i learned it in the first job i had that justice kagan described when i was in the deputy attorney general's office. i arrived about six days, i think, after president obama was inaugurated which was five days too late to avoid the hot potato which had been passed from one to another of the people that got there before me. and the hot potato was to figure out what the administration ought to do about the use of the state secrets bring in litigation. -- privilege in litigation. there had been some criticism of alleged abuses of it, and the president and the attorney general wanted a new policy, and i got charged with figuring out what that new policy ought to be. and fresh off my 20-plus years of private sector experience, i knew how i was going to handle this. i was going to handle this in an efficient, private sector manner. i was going to find the four smartest people on the state

secrets privilege, we were going to adopt a policy, we were going to hammer it out, and then it was going to be fantastic. ..

because it's helped to me to understand that that kind of thorough process in which you solicit views from everybody, you think it through, make sure you heard everybody out, you make sure when you made a judgment what the position of the united states is going to be, that you can explain to the agency general counsel, cabinet head, what that judgment is, why you made it so they think the process was fair is absolutely critical. you know it would be nice if process like that would result in a consensus all neatly tied up in a bow and once in a blue moon that happens but most of the time it doesn't of course. you go through that process and what you end up with is conflicting views about what the government's position ought to be and so you, as solicitor general have to make a judgment about what the position of the united states is going to be and so you have to think about how you're going to make that judgment, what standards do you apply, what criteria do you apply and that's where this

getting really interesting and really challenging. you know one way to think about how you would make that judgment is to say, well, you could approach it as though you were a judge. you could say, i will decide what i think the best view of the law is and then we will advocate what i think the best view of the law is. you could think about it differently. could you say, well, i'm appointed, commissioned officer of the executive branch serving the president and i should just advance the administration's policy agenda in making these judgments. you could think about it in either one of those ways but neither one of those ways captures actually the ways sgs approach the question of how to figure out what the position of the nights ought to be. -- united states ought to be. despite the position being described as the 10th justice, you notice that one of the real justices here tonight didn't describe it that way. you will never hear a real

justice describe it that way and you know that is because while there are reasons for that, it is actually isn't, you're not a judge much less the 10th justice and the judgment you're making is not about what you think the law should be. your function is different. but it is also the case that you're not an administration policymaker in the sense that maybe the general counsel of hhs is an administration policymaker. your function is quite different and there is an ethos that traces back a very, very long time in the office and that every sg tries to uphold and try to pass on intact to his or her successor. and that ethos is you're trying to represent interests of the united states over the long term as best you can discern them. and what that really means is that, what we do is try to defend the interests of the government in doing the things that the government does.

forcing the criminal laws, enforcing the output of administrative agencies, shielding federal officials from damages liability in appropriate cases, defending statutes and so on. that's really where the judgment is grounded. and it is, and it is something that i take very seriously and then, if you're going to hold this position you have to take very seriously that's the way you try to make your judgments. that is not to say there is no room for legal policy choice in the job of sg. i would say, i don't know what the exact percentage is but maybe 85, 90% of the time the positions that the united states takes in a case wouldn't be any different from one administration to the next, one president to the next. but there is a range, there are a range, the cases are in a range. i don't know if it is 10% or so where those judgments might be

different and i think everybody recognizes that's legitimate. somewhat people fight about exactly were the border is between a case in which the, ought not be differences in legal policies judgment and ones where there should be, but everybody does think that. there is one other thing that has kind of come home to me in during my time, now that i have done this for a few years, that is quite important, thinking about what the position of the united states ought to be and i'll give you my views about that. then i'm going to stop, at that point hopefully we can have some questions and it's this. it has become clear to me, one important thing you've got to do in the job of solicitor general is to perform something of a self-policing function for the executive branch, particularly in cases where you can anticipate that the court is going to be particularly

differential to the views of the executive branch and by that i mean national security cases where i it's fair to say, members of the court, judiciary generally will feel reluctant to second-guess judgments about national security made by and advocated by the executive brand. i will use a historical example why i think this self-policing function is so important and it is an example that comes out of the case cast which you all know about. not exactly high points in our judicial history. what has come to light in recent years that at the time that those cases were litigated in front of supreme court and the supreme court was considering a question of whether the internment of massive numbers of japanese american citizens could be justified under the constitution that a secret study had been done by the office of naval intelligence which had

concluded that the vast majority of those being detained were being detained without any justification. the office had come to conclusion that there were only a very small number of enemy sympathizers within the ranks of japanese-american citizens and the intelligence authorities knew who they were, had most of them in custody and following the rest. the particular thing that was claimed as a justification for detaining all these people was the concern that they were sending radio messages to japanese ships that were off the pacific coast. and both the fbi, j edgar hoover's fbi and federal communications after studying that came to the conclusion never happened. just didn't happen at all. the lawyers in the solicitor general's office knew all this information when they litigated these cases before the court and there was, as it turns out a

debate within the office about what to do about this information, whether to disclose it to the court or not. whether to alter the position of the united states or not. they chose not to disclose it and to, one way, of course you can understand the pressure that they must have faced. still 1944. the middle of world war ii. it is incredibly significant time for the country and i'm quite sure that the leaders of the military were pressing very hard for the continuatino of this authority and i'm sure that was a significant degree of pressure brought to bear on the lawyers in the solicitor general's office. nonetheless, they made a judgment they wouldn't disclose it and the reason i, looking at that brings home to me why i think the self-policing function is so important, both pragmatic and principled reason of the pragmatic reason is, well this information is now come out and

it wouldn't surprise me in the least if going forward even though it is many, many decade later, that the fact that this episode occurred many decades ago could well influence the willingness of members of the judiciary, members of the supreme court in particular, to be as differential to executive claims of national security need as they might otherwise have been disposed to. and the other reason of course is that you know, the rule of law is the principle reason is the rule of law is not just something that judges proto this country. although they do provide it of course. that the rule of law is something that, if you're working in the executive branch you ought to think applies to you whether or not a judge is telling you. and so, you think about that historical example and helps realize the dangers and in

thinking that, you know, i don't want to do something like that this is going to even, if it is 50 or 60 years from now, long after i'm gone is going to have the effect of disabling one of my successors from pressing legitimate national security claims. so anyway, let me stop there. you get a sense of what a fascinating and interesting job i have during the rest of the time when i'm not not up trying to field questions from justice kagan and rest of the members of the court but i'm happy to take questions. so feel free to jump on in. don't clap. let's just do questions. let's just do questions. >> we have two wireless microphones. it is very hard to see up here. >> blinding in fact. >> we can also start with coffee and dessert service while we're taking questions. don't be shy. >> we'll not able to see you. speak up, we can hear you.

>> i think we've got one back there. >> okay. >> general very really, and and what the sew tis lore general knew then. >> could i someone say that again. >> you mentioned kiramatsu and what the solicitor general's office knew then. seems the united states has not taken a contrary position to koramtsu. even though it has been distinguished many times since then and never has been overruled and doesn't seem the united states has asked for its overruling. justice kagan also said that you had tried to fix within the government what had gone ron in

clapper v. aclu. when should we expect a fix on koramatsu? >> if a kay were to ever present the question, i don't think you would surprise what the answer to the united states will be on that. i can't imagine it would be different than the answer you desire but that that's a question that comes up when it comes up in litigation, if it comes up in litigation we'll answer it when it comes up. anybody else out there? really, i can't see a thing so. you don't have to let that first question deter you. i'm happy to answer questions. >> there is a question over near the windows.

>> yeah, please. >> hi. thank you so much. how do you represent the united states of america when the united states is comprised of so many vastly different people in different communities? >> so i, the latter part of your question, i'm sorry, i didn't hear. >> the united states is comprised of so many vastly different communities, even the 7th circuit is comprised of so many vastly different communities. how do you discern what the position of the united states of america should be? >> well, it's a really hard thing and the way you try, you try your best to do it through the organs of representative government that we have and so in one way you will look to the statutes that congress has enacted as representing the will of the people and expressing what the interests of the people of the united states are. you look to policy judgments that agencies make. and then you know, you have to just apply your common sense.

and, the other thing you have to do, i think, and the other thing that has come home to me, longer i've been in this job, recognize that you, that the appreciate the historical circumstances which you find yourself and, you have to think about being answerable to history for the judgments you make and in for me, thinking about questions from that perspective i do try to think about the effects that the decisions we'll make in particular cases will have on the different communities within, within our country. so, there is not a formula for doing it. one thing about this job, generally, is that, there's not, unless justice kagan failed to pass it on to me, i don't think there is actually an algorithm that tells you what the interest of the united states is where you plug in inputs and press a button and out comes the answer. so you really just have to use your best judgment a lot of things get brought to bear on

that. of >> thank you. it is very unusual for the united states not to defend the constitutionality of a statute. was wondering if you could answer those questions more specifically about how your office approached the defense of marriage act. >> well, you know it is interesting, i can't give you a great, detailed insight into that for the reason that i was actually recused from working on the case during the time in which the judgment was made about whether to defend the defense of marriage act or not. my former law firm was one of the firms litigating the case and, in this administration you had to have a two-year ethics restriction that you had to agree to and i agreed to it and

you couldn't work on anything that your former employer was involved in for two years and that judgment was made within that two-year time frame so i, because i was recused, was very scrupulous about making sure that didn't have any role in that and i didn't and, or any knowledge of it and i actually still don't. what i can say is that, you know the judgment i had to make, given the fact that the president and attorney general had made that judgment, what was i going to do? was i comfortable litigating on that basis and, you know, obviously i was because i litigated the case on that basis all right. i don't see anybody else. is there anybody else out there? >> [inaudible] >> oh, there is one. okay. it is like hunting.

>> general verrilli, i want to switch gears a little. justice kagan talked about your integrity, and as you know i know that from personal experience but my question for you as lawyers, given the gridlock and the hatred that is in washington, how do we inspire young people in our profession and outside of our profession to follow in the best tradition of public service and bring those people up, the best and the brightest on both sides of the aisle, to really do what we do as lawyers, which is, you know, uphold the rule of law? how do we do that? how do we inspire young people to do that? >> you know the best way for me to answer that question is actually just talk about my own life as a lawyer. and i feel a particular obligation to do it now because i do think that, and i am

encounter this when i talk to young people, law students in particular, there is a bit of reluctance on the part of young people to, young lawyers to take chances, take risks and in particular take risks in taking on probono or public interest represent stations or work of however you define public interest because of the concern, this is concern of people you put on the left and people put on the right and concern it will be held against them and better course is to play it safe and not do that because it will come back to bite them. now and then you actually see and we've recently seen a situation where it has come back to bite somebody, but what i say to them is what i would say to you and i hope that we could all as members of this profession communicate to younger lawyers, that is exactly the wrong lesson to draw, even in this poisonous climate, maybe especially because of this poisonous

climate, in that i'm 100% morally certain that i would not be up here and have justice kagan delivering that wonderful, wonderful, introduction and i would not have that position of solicitor general had i not done the pro bono work that did. i'm 100% sure that is true. you know, if you had, in the 1980s said, well my go is to become solicitor general of the united states and one of the first things you cross off your list would be representing death row inmates on an ongoing basis pause that was -- because that was really controversial back then and you didn't win a lot of friends doing it. i decided it was something i wanted to do and i did a fair amount of it over the years. wasn't only kind of pro bono work i did but i did a fair amount of it, as it turned out five of the cases i argued in the supreme coursecourt when i was in private practice were cases coming out of capital

punishment or death penalty cases. so a big chunk of the experience that qualified me to be even considered to be sg came out of having done that work. even more importantly, for me, was that boy, that is really how i learned how to be a you lawyer. you go down to the county courthouse in jackson, georgia, or gulfport, mississippi, sometime and try to argue a case down there in one of those things. you will learn a lot about how to be a lawyer that way. you learn a lot about how to be a lawyer when you're the one on the line and your judgment and you're deciding wish issues to press and which issues not to press and consequences are as high as they are and it's on you to make those judgments and it is on you to carry them out. you learn an awful lot how to be a lawyer when you're doing that. and so without that experience, as i said, i'm quite certain i wouldn't be here. so i think, and this is not, i'm not making an idealogical point here. so whatever you think is in the

public interest, you know, we're a public profession. young lawyers need to understand that the tradition of the lawyer in this country is one rooted in the responsibilities to the public. and that, that, in order for them to actually be lawyers, and in the american tradition, they ought to have that sense of public responsibility, and, on top of it, their lives are going to be a lot better. i guess that is the message i would urge all of us to try to communicate to new lawyers. all right. i don't see any -- >> i was wondering if you could share any thoughts or reflexes from oral -- reflections from oral argument from the supreme court, particularly if there is any one justice that you dread receiving questions from most? >> you mean other than justice kagan? oral arguments is kind of an

amazing experience. justice kagan summed it up pretty well. it is not always as she described. there is some cases where it is a little bit different. one thing i noticed, i could be completely wrong in this perception, but i have noticed, for example, in patent cases, which i actually argued three patent cases. i think i'm only sg that argue ad patent case and and i now argued three of them. the tenor of the argument ask a little bit different in those cases. they are cases where members of the court have less of a clear sense what they think about the right answer going into the argument, so the argument has a different tenor as a result of that. most of the time they seem to me, the justices seem to me to have a pretty good sense what they think and they're asking really probing, hard questions which is their jobe and what they should do and it, you know, there will be some case it is will be the chief justice really giving me a tough time.

some case it is will be justice kagan a tough time. those tend to be different cases but that is their job. they should be probing for weaknesses. they should challenge the position of the united states in particular to try to work through what the implications of agreeing to the united states's view would be. that is what, that is what they do. that is their job. and there are, this is a really smart group of jurists, the justices that sit on the court and they're incredibly well-prepared and so it makes it a great challenge to argue but it also makes it incredibly rewarding because you do feel like, win or lose, you feel like they understand what's at stake in the case. they understand what the issues are and, and, you know, the case is going to be decided on the basis of the legal issues that are really, are really there and at the heart of the case. [applause] all right, so i'm done, good.

standing between you and the bar i realize. >> justice kagan and her colleagues on the supreme court handed down the final two decisions of its term n a 5-4 decision the court said public sector unions can not collect fees from home health care workers who object to being affiliated with a union. the justices said that collecting the fees violates the first amendment right of workers who are not union members. lower courts had thrown out the lawsuit. and in another 5-4 decision, the justices said that closely-held corporations can not be required to provide contra separative coverage to its employees. it means that certain groups can opt out of covering contraception required in the new health care law. we'd like to know what you think about that decision, the hobby lobby case. leave your comments on our facebook page or through twitter and use the hashtag, c-span chat

we'll be taking you live at 1:15 eastern this afternoon to the pentagon for a briefing by nato supreme allied commander. >> general phillip breedlove. he will provide an update of the european command. in meantime, a portion of today's "washington journal.." >> host: here to discuss how we end political gridlock in washington, d.c., a former member of congress, henry bonea. thanks for joining us. >> guest: thanks for having me. >> host: you work on commission of political reform at the bipartisan center. tell us what that commission does. >> guest: it's a stellar a grou. the group of bipartisan senators started 24 organization back in '07. this particular commission i've been serving on for the last year has p been made up of a go, strong, bipartisan group as well, former elected officials, former house members, people from the private, sector, people from academia. we wanted to look at, consider

some strong recommendations to try to get congress out of the ditch. their ratings right now are in the tank. i think the last figure i saw was 8 or 9%. if you a figure in a margin of erro ar plus or minus five, we'e approaching zero. and it has become dysfunctional. think both sides would agree on that. you know, there was a we'll respected senator that was quoted in the newspaper the other day that said that he is now living through the most unproductive time in his life. things have changed a lot since the middle of the last decade and we wanted to come up with some common sense ideas as to how to restart some of the productive years that congress enjoyed in previous decades. >> host: you said that things have changed a lot in the last couple years. what's your sense as to why that's happened? >> guest: i think because the country has changed. especially because of the economic challenges that we've had in recent years, the recession.

i think it brought out a lot of strong feelings on both sides across the country. members of congress reflect the attitude of thace country. they don't just show up here, get off a plane and say i'm going to be difficult and hard to work with. they get an earful when they go back home. during previous years when it was the time of, of high salaries and economy was booming, no one really got worked up about what was happening in d.c. but i think since thebo recession occurred d people became more concerned about entitlements, about spending and all of those issues, suddenly the emotions started to percolate. i think that is the genesis of what we have today. >> host: bipartisan center release ad number of recommendations how to end the gridlock. walk us throughre the highlight. >> guest: people have to understand compromise is important.un people compromise in their own homes and churches and places of business and some of the recommendations with we've come up with allow for more

compromise occur. we strongly recommend instead of policies and bills being presented by leadership on both side they get back to the process of letting members of congress and senators work these bills through the system. it is called regular order inside baseball here in washington. and it is similar to what you see in the work place in many areas. employers who allow employees, who empower them to get the job done generally have a more productive, happier, system in place. and so this is similar. i remember sitting through many markups in committee as they're called and negotiations with senators over the years and we thought it was difficult back then but at end of the day it was very productive and you also, when you return to regular order you wind up making relationships that you wouldn't have otherwise. i'm a republican but some of the strongest allies and friends that i developed over the years were with democrats who would sit there until 1:00 in the morning, sometimes later, working these bills through and

going to conference with the senate. so i think if we return to regular order rather than havino policies dictated from the top on both sides, we would go a long way towards fixing this. another thing we suggested is having five-day work weeks which a lot of americans go, what? five-day work weeks in washington. we recommend that for three weeks out of the, three weeks out of four, that the house and senate synchronize their calendars so they're in session at the same time. right now the calendars seem to be set by leadership on the house and senate side without any real consideration as to what the other side's doing. how can you be productive if half the team is out of town? and so we say, let's work five days at a time for three straight weeks. that also means that you probably have to stay in washington a little more. and then you take one week off to either go back to your district and work with your constituents in your states. or you can take family time, whatever you need. then come back for -- you are elected to