concerns that they have as operators. part of it is just recognition that we cannot ignore storms like that. when you recall when we prepare for the storm our big concern was the only this no trapping vehicles in snow and in the yards, but the wind. they were calling for 40-mile an hour wind. .. where literally snow gets under

cars and create other issues for us. we didn't have that this time. we had that figured out. so anyway, it was, something that i think was the right thing to do from a safety standpoint for our employees and for customers. worse, you know, worst thing we could have done have people out there, a to get them to think they could travel in a storm like that as we knew at the time. b, then have to rescue them. we were pulling resources away from getting system up and running. that was the decision. i think it was the right decision to make. >> staying with safety issue, there are a lot of times you get into the metro system and see very crowded platform, when you're, games, gallery plays or something like, but issues when it comes down to construction inside of the stations where only few feet between falling of the edge. do you have any plans to try to address that for safety

concerns, passengers trying to walk through stations? >> in the short term, one of the things we're doing, we're basically we created a new class of employees working on platforms at busier stations to deal with in effect crowding issues and using police to do that. the reality, some of our stations physical limitations are very tight and it gets compounded when you have either major events or you have some incident on the rail. so there is clearly that. what we have to do, one of the things, particularly for incident we want people to understand before they get down into the station or before they go into the mezzanine that there is an issue and we start to hold people there. doing some incidents.

we do have electric there. we're trying to figure out right now. people telling what they get down there, that is part of the issue. people are down there. they're stuck. the other thing that we're doing we have proposed doing tap in, tap out. some times people come into a station and there is issue in effect they already prayed and stay here because i already paid, they wait it out or they're frustrated because they paid and they have, they don't get the service they demand. we're looking at 15 minute guys period for that. helped relief some of that pressure so people don't feel they have to stay. something is going on here. let me get out. >> i understand that myself. tell me about those situations too. if i wake in see 20-minute wait and walk out, pull out my uber app.

these other organizations are causing competition for you. is there a way to address that or do you find it complimentary to your system? >> i look at that -- let me talk about two levels. one there are two things i have no control over. i have no control over the price of fuel. $1.60, 1.$70. that will impact uber, lyft, bike share, car share, will impact us. what i focus on let us provide the best service we can within that context. that is where we should focus not worrying about some of the things i have no control over. that is one level. the other level thinking about those as part of an overall transportation plan for the region. there is nothing wrong with that. it is not either/or, next car or, any of that. to me it is all part of a system. so we should think of it as a system, gear towards that.

then are there opportunity to use that? are there other things we could be doing more efficient by tapping into those resources and not figures ways to try to beat them. so it's a little different. maybe a little different philosophy with them. >> in fact i recently said, peapod deliver growrieses to metro stations to pick up on their way home. you kind of hinted at that, does metro's problem, the issues they face, larger state of country's infrastructure, especially transportation struck strict? are we example of what is going on when it comes to transportation funding? >> a lot of trends you see across the country, transit, highway, look at industry groups, they have a laundry list of needs that haven't been met, sort of kicked down the road. at some point they come back to haunt us. look at you know, manhole covers

blowing up in the air. all kinds of infrastructure things have been ignored that need to be fixed. that is a national debate. also regional one for us. >> speaking of regional, the idea of a dedicated tax has been pushed for a very long time with little interest in virginia and maryland. is there any way you think you will ever see a dedicated tax for the metro system? >> i think that you know, the way that i view the system is we are, we are in a region that is competing globally. that's where we are, the metro is just one of the tools to help the region compete globally. unless we start to think in those terms, it puts us in very difficult position to compete. so what that means is, if we fund on local level, you will think much more locally. if you fund on regional level you tend to think more regional. you set up governing structure around that and you have an

understanding what you're trying to do as a region. so from that perspective i think it is important. if you look at the major transit properties around the country, i think we're only one that don't have some sort of regional mechanism like that. it provides certainty in budgeting. rather than annual budgeting we go through. we reach agreements for longer term agreements. by and large across the country the reason that you see that these are very large, complex, expensive systems to maintain and operate. unless you have that, it makes very difficult. >> in terms of, relatively terms metro is pretty young compared to a lot of other systems out there in the united states and in europe. are there lessons you can learn, for example, from some of the systems in europe that have been operating for a very long time and don't seem to have as many of the issues we face here in washington? >> to compare to europe is

little -- we look at transit in this country differently than other place, both europe and asia. i think that comparison is a little tough. yes, there are definitely lessons to be learned. the smart card, boiling off the oyster in london for instance. there is lots of things we can do to learn from them. particularly the funding and public policy decisions both in europe and some of the asian countries, they're not quite applicable here. i think clearly we can learn from other major systems in the country. my experience has been you know, everyone of those systems have their issues and i'm sure if you look a little bit deeper they have very similar issues that they have to go through. we all do because again the nature of the beast but i think if we get at some of these core issues we can start to solve -- we should be at a minimum, the best transit system in the u.s. both in terms of its age, in terms of its mening to this

economy, what it means to the nation as the nation's transit systems we definitely should be there, for sure. as we reach european or asian sort of models that is little bit further down the road. >> why aren't we the best one in the united states? >> i think some of it is because we have a new system and we focused on newness and not some of the aging of it. we had a capital construction mentality i believe as an agency over the years. we've now moved into obviously exempt for the silver line, but we moved into a dpw part of environment, department of public works environment basically where you take care of the basics. that is a shift for the agency. >> questions from the audience. this, questioner want to know, there are many examples of wonderful metro customer service representatives but it is often there is operators who abandon their trains or their station and there is no one there to

help. does metro have a customer service problem? >> i have seen just some fantastic customer service from people that have no idea who i am or they don't even know i was there. so they by and large do very well. do they have issues? yes. have we brought the line employees into the solutions? no. and that is exactly i talked about earlier. what i'm trying to build is, at the staff level particularly at the operation, front line people level pride in the system. we have a class of new employees that come in every two weeks. dan who runs that is here. the thing i say to all those employees, what i want you to do, when you go out to watch a caps game, whatever, someone asks you where do you work, i want you to be able to say metro.

that is cool and you're proud to do it. that means we have a lot of work to do that. if you ask someone where they work, under armour, for instance, you have whole different view of them and may say it a different way. i know we can get there. that is something at bwi, they will say you're proud about it and generally think positive about it. that is the same goal i have here but it starts with the line employees. that means a lot of work with our managers to understand that, buy into that. it means working within the construct of how we operate in terms of both unitization, labor, and there are rules we abide by but the goal is to be proud of the system. >> can you do that without raising salaries? that is usually one thing that instills happiness in a workforce? >> that will always be a issue but i think if you treat people with respect it goes awful long way is my experience. they get it.

that money is not always going to be there. i think that we have, i mean, these are great jobs, no doubt about it. employees have great jobs but more importantly building that relationship with the front line employees that we're in this together. that we're thinking of you. so like, for instance, when i make a decision on blizzards, i'm thinking of them, i have to try to do this what other people should be doing. it is really thinking about them at the same time. >> speaking about, you have had some big decisions you had to make so far and you've been pretty decisive in your three months as the gm. from the snowstorm to the police expansion, others. how do you approach decision making? is this group effort? do you bring everyone together? is this you saying we have to do this. >> right now it is probably a little heavy-handed on my part. i came out with a new organizational structure and recruiting for a number of those positions.

my experience though eventually is get, sort of tight team basically thinking strategically about the agency all the time, is what i want. and then i manage more of a matrix style which is, you know, i get out and when all of my particularly my managers to do that. one of the things that i found at the agency is quite a bit of silos and a lot of turf issues. so with the new organizational structure basically tearing that down. so the people that work for me directly, that my direct report and all people under them are at-will. they will understand what that means, is that either they act as a team or they're not on the team. >> one of the questioners wants to know your personal, what has been your worst metro fiasco as a passenger? >> actually, one of the worst was, and it wasn't, was understandable.

we had an issue and it was at union station at a breakfast meeting there early and then i called the train down. it was kind of interesting, i had 9:00 back at headquarters and it was on customer service and in getting, when i was there, there were a number of issues we were dealing with, i could not find people that were managing it. i did not get sense of urgency what we were dealing with. so when i got back to the meeting, when i looked at the pages i was getting, it was, we had train delays. there are things going on but that was it. i sort of lost it a little bit. but i think they started to understand that you know, a, they have been over the years a little dulled to many so of the issues i think. so i have to bring that into focus that this is not acceptable. that we need to be proactive when things occur and not just think, okay, we have trains moving back. all the customer experience part

of it, which i did not see. lucky enough to be recognized by a number of customers. i informed them what was going on. that was probably win that sticks in my mind got to me a little bit. >> want to tell me your best experience cows to county weight that? >> oh, best? there is one gentleman a train operator fantastic providing information. i asked him to come down to the office and get to meet him. so that is fantastic. i've seen our police do just tremendous work. unfortunately we had a terrible incident not too long ago on the tracks with an individual and it was a friday night and it was a three-hour ordeal. guess what? no one on the line dealing with that issue, most of them were not working. they were off. this, now not how they were planning to spend their friday night but they handled a very complex and tragic incident with

utmost professionalism, dealing with the situation and also trying to get out to the customers so they understood what was going on and rebuilding services as quickly as they can. see that, again i'm very thrilled with the passion i see in people. i think it needs to be harnessed. i think it needs to be directed. it needs to be brought out but definitely there. >> you referenced a crime problem a few minutes ago and you seem to be talking a little bit more about transparency with the metro system. currently though information about these crimes, arrest and prosecution of crimes on metro is currently not available publicly. will you make it publicly available going forward? >> we will make public whatever we have. it is a little more complex than what we control of this, particularly with youth crime. there is all kind of rules i'm still learning about in the region but from what we do, we will be as open as we can if it jeopardizes an investigation or a method we're using we're not

going to be open about that. >> same question about transparency. what they make public the terms of real estate transactions after they're finalized and approved? other public agencies do this across the country. >> again i see no reason got to. >> i'm getting as many promises as i can from you right now. when will they join some other transit agencies, procurement awards and bidders, responders and all bids on the website? >> i don't see any problem in doing that. >> you're making the crowd very happy. this questioner wants to know why it takes so long replacing broken escalators? especially wheaton and dupont circle. why do they break so often? >> let me touch on the why part first. we have a lab where we have mockup escalators and two different types of elevators we have. one thing i learn with escalators, a lot of times what

you see -- from customer perspective it is broken, it is a breakdown. reality these are very complex systems that are designed from a safety standpoint. i won't even tell you what you can do, certain things if you do certain things on those escalators they will stop automatically. it deals with steps. deals with some other things. so just in normal usage it can happen pretty quickly. what happens, it shuts down automatically as it is supposed to do. so, we have station managers have some ability to investigate but the reality is you have to make sure it's safe. so that means you take a technician out. we try to keep technician in emergency response condition so they can do that. a lot of times with you will see with a stopped escalator is that very issue. there is whole another set of escalator issues where we literally have to replace escalators. that gets to be quite a challenge if you have limited access to a station because we have to think about, how do we

get people out of there if an emergency occurs? so that is how they have to think about how they stage these things. in terms of rehabilitation of escalators, same issue. we try to maintain them. we replace the basics and every few years we have to do a whole rehab on them. but our breakdown rate is in the 90s, we're performing in the 90 percentile, 92, 93 percentile. the reality is if an escalator is broken down, your escalator they're all broken. if you look at any of our stations you may look at a dozen escalators in that one station. you may as customer never think about by there are escalators all over the place there, the one you hit is broken, so it is broke and we get it. from a percentage standpoint they have actually done a very good job. we'll continue that. we'll continue to try to do that better. >> i'm sure. continuing with a little bit of transparency and openness part,

to my knowledge metro has not released number of or amounts injuries or deaths that occurred in the system. will you release that information? or do you know how much metro has paid? >> i don't. i don't know that issue enough to commit to that one. i don't know what the legal ramifications are. i don't want to comment on that one. >> okay. changing subjects a little bit we recently learned a effort with major phone carriers to plug the system with more cell service towers, antennas fell through. metro is going to fund that itself. why was that decision and why did it take this long? >> again i walk in with a 10-year history of this thing but the reality is it is not a cell phone issue for us. it is a radio issue. so we have a major radio system both above-ground and below ground basically used for emergencies and 700 megahertz

system. a, we have to replace that because fcc says we have to get off the band we're on. we have roughly 350 million-dollar project to replace the entire radio system above-ground, below ground. new radios, cabling, antennas. as part of that we're in the tunnels hanging our cables for our radio needs we basically struck a deal with the carriers to hang their cable. a few years ago, eight years, okay, 10 years, it was flipped. there was business reason for them to do that. business reason has dried up. used to pay by the minute. you don't pay by the minute. other thing as they tried to do it, what they found it is very complex environment to work in. basically you're competing for space to get track space because, you're literally hanging these cables on the walls on antenna walls above third rail. moving utilities and or signage on those things. you have to do this in very small window of time, or the customer pays in terms of what

we can provide. basically what the arrangement we have now, we have roughly $350 million project. 125 million or so is in the tunnel portion of it. that is a subset that deals with the cell phone portion of it. what we've done is struck a deal where they give us some cash and give us some materials in kind. we'll be doing it as wewe're doing our radio. so it sort of flipped the approach. >> do you see that as safety issue as well? is it safety issue for people not being able to use their phones on a train? >> yes, at minimum it is perceived safety issue. something happens down there you want access. i get it. that is very understandable. so yes, we want it from this perspective. customer would just like to have it for sure. you see it in the stations where we do have it. this is not anything unique to metro. this is an issue for any transit system around the country, particularly major systems. it is a very expensive and it

has a major impact on the system when you put these things in and then you compound it with our system with only two-track system, you're taking out one of the tracks to do it. >> talk about the phone app. ability for riders to tell how long until a bus is coming, how long until a train is coming or back load at union station they know that should maybe walk to the other side to another train. what efforts are you making there to make that information available to app developers? >> apparently for some reason we weren't sharing as much information as we had. we changed that about two or three weeks ago, to be frank i hadn't gotten down to that level, when i discovered, learned a more about it, that is ridiculous. we should share whatever information we have in terms of particular train movement. reality though is we don't have excellent information on that. it's based on maybe, 10,

15-year-old technology how we're trying to track trains. so you can see that on the information displays that we have. so you might see something three minutes. it is measuring where it was in the one gap and estimating what it will take to get there. it doesn't understand what happened between here and there. so we have to create a system that does that. we need to do that on our own. so we'll do that on our own. at the same time we want to be able to open up as much of technology to third party developers to do this. one of the things that i said repeatedly is for us to try to catch up in some of these areas, whether social media, some of these technology areas. for us as agency to get there, we will always behind. we don't have that capability. it is not our core mission. it supports our mission but not our core. why don't we let private sector people, other people, creative people do that? let's figure out ways to do that. so we are doing that across the board. we reached out to greater area

washington for instance to help us think about things like that. again there is a lot of people in had area that will no much more than we will ever know in this area. >> one of the things you talked about today, bullet point you started with, safety, reliability and fiscal management, correct? >> uh-huh. >> those things cost money. that gets to third area, fiscal management. where will you find money for better technology tracking buses, fixing elevators so they're not breaking as much, adding security. how do you do that? >> we have to manage more efficiently. there is lot more things we can pick up managing differently than we manage before. there is definitely efficiencies there. there is redundancy what we do. we need to make changes there. we need to have thanks that are legacy that we don't need anymore. we'll have to address all those. that frees up some dollars to work smarter in general. we achieve more.

but we need to, we need to con to work with our federal partners and our jurisdictions to basically address those issues and make hard decisions. but my job is to give them clear, understanding what we're up against. now where do you want to chip away at. >> does fta oversights how much does that affect what you're trying to do or does that change what you're trying to do now that you have different federal oversight? >> no. i welcome oversight. i think we have to make sure it is as efficient as possible. i think we have to, one of my concerns, we tend to be very focused on process and not product. so one of the things we did online today is we outlined 732 i think it is literally actions that we're taking because that is more important to me, what physically are we doing to get the system systemmer, not sort

of the -- system safer, not sort of the compliance issue. we have to meet compliance but we seem to spend a lot of time and energy on the process versus what are we doing to change the product. so my focus is more on that. i think the, obviously as the new metropolitan safety commission gets set up, i think that's great. i think those are things we should have. the more, sooner that is done in definitive way the better. >> there is a questioner want to know about what can be done about the bad behavior by some of the riders on metro trains, being from noise to food, blocking the exit, people put their feet up on the chairs? is there an effort to maybe be done with a courtesy campaign or is there culture problem you see with riding trains that needs to be reversed. >> i don't know. i've been to movies. i've been to malls. i experienced all kinds of things, lots of public environments.

i think we reflect that no differently than other public environments. so, yes we can make sure that we try to do that. that we project a certain decorum we would like to have in the system. but, you know it is a big community. >> i'm a teacher most important thing to me is issue in this election is education and so i'm looking at the candidates very closely for their programs, in education. i'm not happy in the last 15 years or so with all the core standards and common core that's been happening. so i would like to see that changed around. i will vote for either bernie sanders or hillary clinton. i'm happy with both of those choices and i'm interested to see what their education plans will be if elected. >> i'm decided i am voting for ted cruz for candidacy because he is a constitutional scholar. he is eloquent and he is

principled. consistently out of all the candidate so far. ♪ >> last week the supreme court heard oral argument in the case of williams versus pennsylvania. the plaintiff, terrance williams, is challenging his death sentence on the grounds that pennsylvania's supreme court chief justice ronald castillo failed to recuse himself in the case despite being district attorney who prosecuted the original criminal case in 1986. this audio recording of the supreme court proceedings is an hour. >> we'll hear argument next in case 15-1540. williams versus pennsylvania. mr. lev. >> mr. chief justice, may it please the court. due process does not allow a district attorney to make the decision to seek the death penalty against a defendant. and then, in the same case,

become a judge of the conduct of the prosecutor who carried out that decision and obtained that result. in this case, when he was district attorney, chief justice castillo made a discretionary individualized decision based upon a review of the facts that in his vie death was the appropriate sentence to seek. >> does that make a difference, the nature of his decision? let's say he had a policy to i think every case in which a defendant is convicted of first-degree murder that we ought to seek the death penalty. leave it to the jury, maybe the jury will agree or not but i'm going to seek the death penalty in every case where there is conviction of first-degree murder. would you have the same recusal problem? >> i think there would be, yes, because that policy itself would be a decision that he makes. pennsylvania law gives the district attorney -- >> i know that but it's a categorical decision. in other words he doesn't look

at the particulars of that case. he has a policy that he's adopted, whether you think it's a good policy or not, that doesn't pretend upon the particular facts, simply on the facts what the conviction is. >> that would still raise due process concerns because that policy would have led to a major decision within the adversary process. >> what if is the case was simply in the office and he had supervisory responsibility over everything that occurs in the office but it is a big office. if a question arose, somebody could bring it to him but there isn't any indication of personal involvement, would that be enough? >> supervisory authority might be enough depending on the issue. when the issue directly goes towards the conduct of the prosecutions in his office it implicates the integrity of office and reputation of the leadership, in that narrow circumstance. >> the problem that is presented by this case is not, is where

this constitutional line is going to be drawn. you want us to get into, get pretty deeply into the issue of a constitutional recusal policy for judges. so it's really not enough to just say what happened here was bad. let's assume that that that is the case. assume for the sake of argument. i'm not saying one way or the other but how far does this go? that's what i'm interested in? supervisory authority would be enough you said but depends on the issue? why would it depends on the issue? >> because the issue is directly related to that supervisory authority. >> what is the rule then you're formulating so that we can answer justice alito's questions and similar questions? recusal is required when, and fill in the blank. >> when the prosecutor has direct personal involvement in a substantial decision in the case and the issue before the court

reflects upon that decision. >> i thought that, you know, your particular position was that a judge can not sit on any case where as district attorney he signed on to the death penalty? >> thatwould be, your honor, an appropriate decision and appropriate due process rule for this court to reach but it's not a rule you need to reach in this case. >> what short of that? i thought critical element, he was a district attorney. he signed off on the death penalty some 20 odd years later he's a judge. he can not sit on that case. i thought that was your position? >> our case takes that but also looks at the other circumstances of the case that includes the nature of the issue. >> that's the line-drawing problem. why does it matter that it's the death penalty?

what if it was not a capital case but he signs the indictment? >> i think the death penalty only matter for eighth amendment purposes. if it was not a capital murder case, if he had direct personal participation in the case and faced an issue that was related to that revel of participation, that involvement that he had, that would still be a due process -- >> what if he signed the indictment? >> i'm sorry? >> he signs the indictment. the former, the then prosecutor signed the indictment and there are thousands of indictments in a county like philadelphia so, that would be enough? >> no, the signing of the indictment would not be enough but if his assistants came to him and said, we don't know if we have enough evidence to charge this person with this crime, what do you think? and he said, i reviewed the facts and there's enough to charge. go ahead. that would be the direct personal involvement as opposed to the --

>> you're saying -- would not be enough, that could be pro-forma, is that what you're saying? >> yes. >> what if you had a situation where he was directly involved in at mare that had nothing to do with the issue that came up later? you know, if the assistant comes in, says we have a real question here, he wants a third extension of the trial date, should we oppose it or not? and he thinks about it, he says yeah, let's oppose it. then 29 years later there is issue about a brady violation. is he recused from sitting on that brady violation case? >> if the decision he made was only about some procedural matter, that had no substantive relationship to the crime, then that would certainly be a much weaker court. in the absence of any -- >> can you give me a yes or no on my hypothetical? >> i would say no in the absence of any circumstances, that would not abdou process -- >> under that answer then why doesn't the brady violation problem drop out of the case?

that is not an argument for an extra argument for recusal? >> because i think in this case the brady violation goes directly to his role in making the decision. this is a brady violation about sentencing and it relates to the decision he made to seek the death penalty and in addition, it goes to his essential role as the chief prosecutor. >> well, he didn't know about the brady violation. the brady violation basically occurred in the course of trial? after they sought the death penalty. >> that's correct, the record doesn't show that he had any personal knowledge of the brady violation at the time but a substantial brady violation certainly calls into question the integrity of the office as a whole and not just the individual. >> well then that doesn't follow with the rule that you gave me at the outset. you should recuse yourself when and now you're adding, if

there's a question that involves a substantial integrity, substantial question involving the integrity of the office. so that is an added, that is an added factor in your analysis? >> no. i think that in my analysis it, it's an issue that relates directly to the decision being made by the prosecutor. their personal involvement. >> i'm a little unclear what you're arguing. one rule could be, did the judge have some significant involvement in a critical trial decision as a lawyer? is that your rule, or are you adding something to that rule? that would be a rule -- >> that would be a rule consistent with this courts ruling in merchison you can not have a fair trial and allow a prosecutor who prefers charges to become the judge of that i don't think that is rule you

necessarily have to reach in this case. caperton tell us look at all circumstances in the case. that's what i'm suggesting we do here, we look at all the circumstance. >> i don't see how the brady violation fits in the formula you want to us adopt? unless you're anticipating to say anything that involves with the integrity of the office? >> more importantly, justice kennedy, the brady violation fits in because, how the trial prosecutor carried out the decision that chief justice castillo had made. so her conduct in carrying out that, has direct relationship to the issue itself. >> we don't have a brady issue before us. the only issue is recusal, right. >> that's correct. >> so the merits of the braid city issue are not in the case -- brady issue are not in the case. even the question you're raising

you have prior opportunities to do that. you didn't raise it when there were prior post-conviction applications. so why aren't you -- >> that we didn't raise the recusal issue, is that what you're asking me, your honor? >> yes. >> in the prior post-conviction litigation we didn't have the information that we had at this time. that's the, two critical pieces of evidence from the information here. one is memorandum that authorized the death sentence that showed the kinds of factors, district attorney castillo looked at making that decision and showed that it was he who made that decision. we didn't have that before. the second factor would be, the fact that it was brady issue and that there had been evidence, had been suppressed and findings by a lower court judge that the prosecutor had done so willfully. so it was those two factors that

were new to the case that caused us the file the recusal notion. >> there is a concern about sandbagging though. i mean if you do have a case where somebody has that information i think the best thing to do would be to you know, put it in back drawer, take your chances on getting an acquittal, then if you don't you say, ah-ha the judge should have recused him or herself and our remedy is we get to go back and do it all again. >> i recognize the court's concern about sandbagging. similar to the concern the court expressed in stick land and ineffectiveness cases that the lawyers could create error, give an open door, backdoor on the defendant on appeal. we have seen judges across the states have been diligent in protecting against sandbagging. >> well strickland is very different. you may think it is pretty unlikely attorneys are going to deliberately commit error so they have a later problem but it

is another thing if you're talking about a fact about the judge's prior involvement. >> i'm not sure i can agree with you, your honor, it is unlikely. i've had that argument raised many times. during the course of my practice. but even -- >> not against you? >> not against me. even fit is unlikely, sandbagging for whatever concern can be addressed by lower courts is not a reason not to narrow or apply due process analysis. >> i guess it is not a case of sandbagging but somehow related in that information you're talking about would have been information that, seriously undermined the defense your client was presenting. in other words, the information goes to the nature of a prior relationship and his whole argument, defense was, i didn't know, who this person was. i had no contact with him at all. so, you know, what sense is

that, material that you're complaining about now, is last thing he would want to have come out at his trial. >> in ad least two different senses i think. one is, if this material were produced before trial, before mr. williams testified, before he chose what defense he would present, perhaps, council who only met mr. williams the day before trial would have had opportunity to talk to him about this evidence. and counsel him and confer with him what would be appropriate. my second part of the answer would be -- >> well just so i understand. you're saying evidence might have been sufficient to persuade him notto lie? >> might have been sufficient for counsel to be able to develop the understanding with the defendant about what facts were important and what wasn't and what might be a better defense than the defense this 19-year-old, this 19-year-old young man, with little

counseling hoped to present. but i would say even more, is the materiality in this case goes to sentencing and there are many examples of company tall cases where and evidence where defense of not guilty was offered at trial and -- >> counsel, am i correct that mr. japer, his accomplice, did not come forward until later? so he didn't know that the accomplice would say that there was a different story to tell at all? correct? >> that's correct, he did not know that prior. >> and he did not know that the sexual abuse could form a very potent defense to a death penalty? because there was independent prove of it. >> for sentencing purposes, yes. >> prosecutor in fact told the trial judge that there wasn't any independent evidence of

sexual abuse by this man of other people, correct? >> correct. >> in fact the record shows there was? >> correct. >> the independent evidence you're complaining about involved the defendant himself, correct? >> no. the independent, well let me step back. the testimony from mark draper related to the defendant himself. the documents that were found within the prosecutor's file related to conduct between the deceased and other young men. >> what do you do with the fact that chief justice castillo was not solely responsible for the decision in this case? this was a decision by the pennsylvania supreme court. you say it was structural error. suppose that the court had been divided and chief justice castillo voted to affirm the decision of the lower court, would that decision still be invalid on the ground that he

shouldn't have been participating? >> it might be. there would still be a taint to the decision-making process but perhaps in that one narrow instance, where he voted in the defendant's favor anyway, but even there, we don't know -- >> doesn't that mean it's not structural error? >> i don't think so. even there we don't know what his role within the decision-making process. perhaps it was a case where he already saw a majority, he already persuade ad majority of the judges, justices to vote in his favor but to vote against it and then he thought his vote was a vote he could make without injecting this issue. the problem is -- >> he might have persuade ad majority to vote to reverse and then he turned around and he wrote an opinion saying that there should be an affirmative? >> the problem we don't know what happened within the decision-making structure and we

can't know what happened within the decision-making structure and that's why the rule should be that a defendant should be entitled, anyone should be entitled to a panel of appellate judges where there are no judges with bias. >> if we agree with you, doesn't that lead inevitably to to the rule, that the majority of judges on a multijudge panel have the authority to require the recusal of a colleague? >> i, that's an interesting question. and i think it would depend upon the rules of each court. i don't think due process requires that there be any kind of review by some greater -- >> wouldn't they have to, wouldn't that have to be the consequence? suppose that, suppose you make a recusal motion, you want chief justice castillo recused and the

other justices on pennsylvania supreme court say, we think he should be recused. we're afraid if we go ahead with this decision with his participation, the decision is going to be subject to attack down the road. and we can't allow that to happen so we're going to require him to be recused in order to prevent him from tainting our decision-making process or creating at least the appearance that the decision-making process is tainted. so that would have to be a consequence of your rule, would it not? >> not necessarily. >> they could just take their chances? >> or the consequence of the rule they informally to the justice -- >> he says no. i disagree with you. >> if the rule in the state court, if the rule in the court is that the ultimate decision lies with the justice, then that's the rule and they take the chances because that's the rule that the court's adopted and that's a perfectly appropriate and fine rule. >> it is awfully difficult in

this cases not your case for me. it is not your case. it is the hundreds, not hundreds but look the a all the briefs filed. there are disqualification rules all over the law. suddenly to turn this into constitutional matter as we did with caperton which we did with our eyes open, we don't know what we're getting into. there are congressman that become judges voted on statutes that come before them as justice black did. there are executive branch officials who decide all kinds of things and later on something with their name signed on it comes up. when does the constitution require it or not? that's why i think you're getting these questions. my question, is there a way of avoiding this? and the thing that is suggested by the other side is that you did ask for reconsideration. reconsideration would have taken place without the chief justice

because he had retired. reconsideration can be pretty perfunctory. or, it might be serious and thorough. is there anything, is there a way for us to send this book and say, you said you reconsidered it. we're not certain what that reconsideration consists of. reconsider it! i mean is there a way to do that and what do you think of that? that's what they're suggesting. >> there's a lot of questions to fit in there so let me try to start. the, in my view the pennsylvania supreme court did not reconsider this case because they denied the motion for reconsideration. had they granted the motion for reconsideration and said we'll take another look at this without chief justice castillo, that's the remedy that -- >> can we tell them to do that?

>> yes. that's the remedy we're asking. >> so we could say, given all the facts of which there are quite a few and filing of a motion for reconsideration, and the fact they may not have done it, go reconsider it, period, end of opinion, can we do that? >> i would simply phrase it slightly differently. [laughter]. >> that is what i was hoping. >> and say what we're not asking for is to reconsider the decision that's already been made. what we're asking for to go back into the position before the error was committed and hear the case fresh. >> do they have to hear -- >> can we do that without holding there was constitutional violation? what would be our authority to require them to do it over again? >> it would have to be because there is a constitutional violation. >> there is something unsatisfying about the remedy that you're requesting, right? because if the idea is, that one

judge can avenue affect a whole panel, which seems right to me, but affect doesn't go away moment we send back and they deal with it again, don't they continue to be tainted in some way? >> you faced that same issue in the caperton and levoy case and granted the relief of sending it back for a new appeal. that may be there and it may be that the remaining justices who heard the case and the pennsylvania supreme court is constituted differently should it go back. there were three new justices elect last november and took office in january. so the remaining justices may have to consider whether or not they can put aside the prior proceedings and start from fresh or whether they're tainted. we do that all the time whenever a case is reversed and sent back to a lower court judge or, that judge has to make a decision to

look at this case in light of the guidance they have gotten from the higher court and i trust that the judges will be able to look at themselves and do that. >> but there's one big difference between i think what justice breyer was suggesting and i think what you're asking. you wouldn't be satisfied if what the, what the pennsylvania supreme court was asked to do was simply to rule again on the matter of rehearing? you want a denovo appellate review, is that right? >> that's correct. >> what is standard on rehearing? must be a very different standard, isn't it? >> it is compelling circumstances and the examples that are given to the commentary to the rule are things like a known and obvious mistake of fact or mistake of law. but it's a narrow remedy, rarely granted of appellate

circumstances. that is not what we're asking for. we're asking for a fresh start. >> counsel, i understand the first two of your three points but i don't understand how the third works. this is your concern that the chief justice cited his record with respect to capital cases in campaigning for office. that certainly wouldn't be a recusal issue without the other two point, right? >> that's correct. >> okay. so how does that have anything to do with the argument in this case? >> our concern for that is that as a candidate chief justice castillo was reported to have said on multiple occasions, i sent 45 people to death row. by saying that, he is taking the personal responsibility for those decisions and for those actions that i think reflect, become an additional circumstances that reflect upon the two other circumstances we've been discussing. his decision-making and --

>> it is evidentiary point for you, it is not an independent ground for recusal? >> absolutely. it is added weight to the pile but by itself would not be a due process violation. >> what weight, if any, do you think we should give to the current moratorium in pennsylvania on the death penalty? >> the moratorium is really not particularly relevant to the question that's before the court. and weight should not be given to it. the moratorium is simply the governor's action of delaying executions in pennsylvania and, in pennsylvania the governor has no power of commutation by himself without having unanimous recommendation from a board of parole. he can't reduce sentencings. his only power is to grant reprieve in individual cases and he has done that for mr. williams to delay execution pending the receipt of a report

from the legislature and possible action for it. >> when is the last time a prisoner was executed in pennsylvania other than those instances in which the prisoner decided that he did not want to pursue appellate remedies? >> the three executions in pennsylvania since the passage of the new statute in 1978 were all, were all cases of prisoners who gave up their rights. i think the last contested execution was sometime in the early 1960s. >> what is at issue here is only the death penalty, not the conviction itself, correct? >> that's right. >> and nobody has, nobody other than these so-called volunteers has been convicted since 1978, has been executed since 1978? >> that's right but mr. williams remains on death row and

solitary confinement. he remains unrestrictions of death row. if i may, chief justice, i will reserve my time. >> thank you, counsel. mr. eisenberg. >> mr. chief justice, may it please the court. petitioner argues that it is justice castillo's supposed direct and personal and substantial involvement with this case that create as constitutional due process recusal obligation but as he has said here today, such and direct ment in the case is not necessarily to his involvement here at all. if the d.a. promulgated opposing death penalty in every case without involvement in individual case that would still be a violation of the due process clause and i think that very fundamental -- >> of our jurisprudence that says you can't be, you can't be prosecutor and judge.

so i'm, what does it mean to be a prosecutor if you're not taking responsibility personally, as he claimed during the election for the decision to execute someone, whether by policy or by individual review? it was clearly individual review here. at what point do we give meaning to the constitutional command that you can't be prosecutor and judge? i know there's so many different kind of recusals. this is the ideal case for someone to make a due process claim because the judge here actually signs his name to his review of the facts and his decision to seek the death penalty. but, as i'm looking at most of the ethical codes, most of the ethical codes would have said, you get off, you made this

decision. >> your honor, i think that is exactly the point, that the, that it is ethical codes or statutes that really control for this sort of situation and that, as a constitutional question, this is the not ideal case at all. >> why? >> because in this court's caperton decision you made it very clear it was the totality of the circumstances test that looked at the intolerable probability of actual bias in the case. no bright lines, no automatic, no presumptions. you have to look at the actual, the probability of actual bias in the case and if justice castillo -- >> do you think that the public would find it unusual that someone who make as decision as to whether to seek death penalty or not, that the public wouldn't perceive that as a great probability? >> your honor -- >> actual bias? now i don't want to talk about, i don't, for the moment the

history that there are some cases he disagreed with but but don't you think as a reasonable probability that appearance of impropriety is just present? >> i think, your honor, that after 30 years, maybe everybody wouldn't see it that way especially if they looked at the rest of his record as you have referred to and i think that the major point, your honor, is that any sort of prior conduct by a judge in his prior life that gives rise to a intolerable actual bias test is not limited in some way to prosecutors even to people who previously had brief involvement as counsel in a case. and so as the court has said, one looks a the psychological tendencyies of. that is what the court addressed in caperton. we know there are many case as justice breyer referred to where judges or justices have been far more involved in an issue that came before the court once they

became a judge or justice later on than judge castillo was in this case. there are many instances where judges or justices worked on an issue, spearheaded an issue, fought for legislation, for example, for years and years and years, even may have had it named after them. then sat in judgment on the constitutional or scope of that legislation. now i think that the public would see at least as much potential for bias in a situation like that, at least as much possibility that the, that giving human psychology, a justice in that position would be reluctant to overturn his or her own statute. . .

section 455 of 28 usc, where we have rather mechanical recusal standards also refutes that. >> your honor, my point is not that there can be no bright lights adopted as a matter of code or statute. obviously, they can't be. the court was clear to me clear and extend the discussion that the due process is merely a constitutional floor that this elite is set by those codes and statutes. that's where you draw those bright line tests. >> no, but you were arguing this

was going to be unworkable. we know both from the briefs and statutes that for more rigid recusal standards are in place and are quite workable. >> they are workable but it's different to constitutionalize, in essence to raise the constitutional floor to the ceiling. that's essentially what the defendant is asking for, the petition is asking for, but in a way that is not really internally consistent because -- >> what would be your standard? i assume you would agree in certain circumstances a failure to recuse would raise a constitutional problem. how would you articulate the appropriate test? >> i think the degree of the prior involvement, among other factors, the recency of the prior involvement have to meet the caperton standard of an intolerable likelihood of actual bias in the case. in a case like this where the district attorney presides over a large office, has in many

cases, during his tenure there over 2000 are in the city of philadelphia, a great number of them were death eligible. even if 20% were death eligible, that's 400 cases. he's not likely to member the details of any particular case. >> the essence of the brady violation is alleged is that the evidence was concealed for years. they didn't know about it. >> and he did know about it either. there's absolutely no allocation that justice castille had anything to do with the violation. so to him a -- >> he did know about it because subordinates in his office under supervision conceal the facts. >> that was the allegation. >> the assumption that the position once the court to adopt as a matter of law is that they look at the case 30 years later he would be trying to protect himself by hiding that rather than, perhaps, angry at the people who have done something wrong. there is no basis in the law --

>> i'm sorry. go ahead. >> if i understood your answer to the chief justice, the chief justice, you said significant evolve in a critical conversation would be a critical factor in the citing when a person had crossed the constitutional line. you then simply said that there's kind of a statute of limitations on it, and because this is 30 years ago, that makes a difference. am i understanding you correctly? >> i don't recall i said significant involvement in a significant conversation, your honor. certainly significant called in the trial, whatever that may be. while the death penalty decision -- >> i'm not sure i understood the difference. you mean you did in trial in the courtroom as opposed to any office making critical strategy decisions about how to prosecute a case? >> no your honor. at the former, actually trying the case is obviously much more significant of all the. i'm simply saying -- >> just go back to what the test is.

significant involvement in what, at what time? >> significant involvement in any matter come in any case or cause it would be likely over that period of time to create an intolerable probability of actual bias in the citing the issue in that case. >> and what time is the critical time? is it six months? five years? tenures? >> there is no bright line of there any more than there was in caperton. in caperton united judge he received $3 million in campaign funds during the time that the case that is going to decide was pending and about to reach its core. had he received $3000 or $30,000, and had he received from the same man that 10 or 20 or 30 years earlier it would have been a different case. the caperton decision in and of itself doesn't tell us the answer to all of those other hypotheticals. it is clear those factors matter. as they change the likelihood of an intolerable probability of

actual bias reduced it. >> but as i understand you, the one factor that seems to be controlling here is the time limit. other than that, everything points to due process demanding a recusal, except for the time limit. >> it is as always a balancing of factors, your honor. if you tried the case, if you spent a year as the trial prosecutor in this case did actually trying the case, going in on the first murder, going in on the second murder, 30 years isn't going to matter that much in a situation. >> he made the most important decision that could be made in this case. >> he concurred in the recommendation. >> in what sense did he can for? >> or something of a difference in terms of the allegation about the level of this and all the. the question is what's he going to be taking about and feeling personally committed to when it comes to this case 30 years later as a judge? that's a uss the likelihood of actual bias.

and if, in fact, he spent the time it takes to read a one and a half page memo 30 years ago in a city where there were 2000 cases of murder and hundreds of other death penalty cases where he was reading -- >> do you think he didn't take that decision extremely seriously? >> i think he took a less seriously or involve less reflection on his part and if you been making it for himself in the first -- >> did all 2000 murders, cases get the death penalty to a? >> no, your honor. but a significant percentage. >> were there cases where he said no to some death penalty for? >> no, your honor. >> were their policies he established to establish when death penalty was appropriate. >> there was no written policy. >> that's an interesting use of words. >> i'm not aware of any. >> somehow someone had to make a decision of where to cut the line. >> they looked at the aggravating circumstances under the statute and they decided --

>> i presume you look at mitigator's. >> they may or may not have. at the time they would have been -- >> the minimal required them. >> that's not actually true. this number did spent a brief portion of time in the 500 words of this memo, 450 of them a, relate to the facts of the crime and there were 50 relating to litigation. we don't know what justice castille thought was significant about the memo. he was not required to underline this part of that port as it is part is important or not. we only know what you said in prior cases where reducible assad, which was that he did all of these cases the same way. he had the same policy and preservprocedure. >> suppose this case were exactly the same except you done it three years ago. what would your answer be to that? >> i'm not sure, your honor. >> we are talking about --

>> so the fact that he spent three years in solitary confinement actually helps the state? >> as we address in her brief it's not exactly 30 years in solitary confinement. it's the government who issued a moratorium, is in charge of the department of corrections. if he wants to change conditions on death row, he is ridiculously. i don't know if there's been any request by this defendant or others to rearrange things in light of his moratorium. >> we are talking about a constitutional recusal rule which would have very series consequences. even if it isn't actually necessary that that will be very clear, certainly it is highly desirable that it be very clear so that everybody can determine with a degree of certainty when the decision is made whether recusal is constitutionally required or not. i really don't see a clear rule that would encompass of the situation, other than a rule

that said that a judge is required by the constitution to recuse in any case in which the judge had personal participation as a prosecutor. anything other than that seems to me to be pretty fuzzy, but i would be a pretty far-reaching rule. can you think of one that is less, that is not as far-reaching as about but nevertheless is clear? if we talk about the number of years the past or how significant the issue was or things of that nature, those are all going to be subject to a lot of uncertainty and debate. >> they are, your honor, but that's exactly the situation in caperton that this court addressed and ruled on. there were no such a bright lines that arose out of caperton, even on a matter that is of great importance, which is the nature of campaign contributions. what did happen after caperton though is there was a model rule, 4.4, adopted in which a

bright line was drawn to any amount over $3000, $4000, is a violation of these rules come any amount under 100 is not. a dollar more is a violation, a dollar less is not. that's a clear rule but it was done by a rule, not by constitutional mandate. it will be up to each individual jurisdiction what number the plug-in, what campaign amount, contribution about they think is the appropriate amount. there's also a rule, 211, and that is somewhat again to the federal statute 455 involving prior involvement by a government lawyer in a case. that really is the argument that the petitioner has been making. he calls it a constitutional caperton argument but he uses the exact language of rule 211. that would certainly be making a constitutional floor into the statutory ceiling.

they would be no room in between. i would like to speak forget about the second question of the case because i think it's even more troubling than the first one, and i think would be a radical departure from previous practice. the petitioner's position is that because we can't know it's like with the other judges on the panel do, we have to throw out all case. have to assume in essence the worst. we have to assume as a constitutional mandate that all the other justices or judges were tainted. that's a reversal of the essential premise of judicial review, which is that at least non-recusal judges all the of to apply the law. if we do abandon that principle would not just theoretical but very practical problems. >> i suppose for purposes of raising the question, to reach questions here, we will assume that there is bias. we assume he should have recused

but then isn't your submission that there's harmless error because it was a multi-member panel? >> is senator stabenow not? >> i wouldn't actually, i don't think that's the best way to describe the situation. with a multimember court the process is the court, not the individual judge. at the trilevel the judge is literally the core. if the judge is constitutionally biased and there's no issue. it's a very different issue at the appellate level. >> just so i understand the scope of your argument, you would be arguing the same thing if there were three judges? one should have recused, that leads to? >> again, the totality of the circumstances test applies. the vote matters. if it's three do nothing, that's better than two to one. if it's 60 nothing that's better than for to do. the vote as often going to be a highly to positive -- >> the main circumstances would

seem to be is a real fact matter is what the deliberations of the judges were like. i mean, if the individual who should've been recused occupied a comical in the discussion and the successful in persuading colleagues and all that, and, of course, that's the evidence you can't have access to. >> your honor, of course an individual justic justice can be persuasive to other judges or justices. on occasion perhaps even a lawyer can be persuasive. but if so it's by the power of the reasoning. and if other justices are persuaded by something other than the power of the argument, then they are not fulfilling the oath. if there is board -- persuade because unlike the person or the vote against because they don't like the person -- >> suppose you have a very brilliant trial judge on the power of this reasoning is persuasive and forceful but he is biased, entities. he has to be recused. >> yes, your honor but the difference is that the other

justices on the case, other justices on the case don't have to be recused. >> well, this is, in a situation where someone is appointed to this court. there are a series of cases where he had sat, that judge. very often they are decided by the two people who remain. >> yes, your honor. >> and in that case there was nothing wrong with the participation at the time. the harder point is that judge from guam, i think i wasn't supposed to sit in the ninth circuit. and became a decisions went ahead. the same thing could come up with recess appointments, and there are many of those. but i don't know where there is a disqualification of the judge because of bias. now, in that kind of situation is there any precedent that supports you, or maybe the other way and? >> your honor, i think that there are many cases where,

after disqualification, the remained of the panel goes on to decide the case. >> what i'm looking for is a disqualification because of bias, because in that circumstance there something biased about the judge being in that panel. in that situation i can think of a lot of others that i've just mentioned. in that situation, either instances, how does it cut? what does the aba said about that one and what if you found? >> i think it is addressed by advisory opinion 71 in the guide for counsel from, i believe from the judicial conference. i'm not sure exactly the authority but it's an advisory opinion for federal judges. it says that were a judge refuses during the process, the remaining judges can carry on. i think these recusals will often -- >> refuses because -- go ahead spin under section 455 which as this court has described it

covers the actual buys and the possibility of actual bias. there's no such distinctions made in the advisory will. many of the cases cited by the the petitioner or ourselves have relied on an advisory opinion number 71. under conditions position that's impossible because the recused judge has already participated in the process. it doesn't matter if he gets out before the vote. >> but there is a difference. we judge recuse himself during the process. the remaining judges know that. and because they know that, they make an effort to decide it among the two. where the judge didn't recuse himself during the process, the other judges take his point of view into account, just as they would if they were in any ordinary circumstance. in practice, i think that's a big difference. >> your honor, but always take

the other judges opinions. >> not in an instance where you know that you shouldn't because of that judge should not have participated. >> but under petitioner's point of view we can't know that. >> you can't know at the moment, but what you do not at the moment is that the two judges, or six, or whoever was there didn't think we must ignore his situation, what he thinks. they didn't think that so of course they didn't. in a situation that they are talking about in the aba, i take it the remaining judges do know that they are not to take into account the opinion of the judge who is out of it. >> that they can't know whether they were biased by it, your honor. that is the petitioner's position, is that we cannot run on the other judges to know what may have biased them from

whether they were biased by the participation in some -- >> did the other justices of the pennsylvania supreme court know about the recusal motion at the time? >> it was docketed and so the ungodly about and they also knew prior motions have been filed. in prior cases the petition actually essentially appealed from individual decision of judge castille not to recuse and asked the rest of the court -- >> at any of the in which that was the case, no one knew that he was signing off on a review of the cases. >> they knew that the allegation was that he was personally approving them. that has been known all along. prior recusal motions were based on that assertion he was personally reducing them. there's any number of ways in which he could've done that. he could've held a conclave. he could've had a weeklong meeting to decide every individual case. what he did was much less involvement in that sort of

process would have entailed. the fact they didn't have the memo didn't change the essential point of the argument. and, in fact, the petitioner said here today that even if the district attorney had a flat policy and didn't look at any individual cases, that would still be a recusal problem. i think the participation or the involvement of other justices easily one of the core problems here. because under the petitioner's point of view, it really can't happen because they will be tainted either justice who they are looking at. they are collegial. it's a collegial process, he says. and because of that, they can't really know what, whether they've been acted by what he did. so we really have a dead end or a circularity here because there's nowhere to go. if you pick up on earlier question, if you look at this

court's historic practices, as it's termed a recusal matters, it is to refer a recusal motion to individual justice, and that's it. under petitioner's approach i think that's seriously problematic, a difficulty for the court. you have two options, either to continue that practice, having held if you adopt petitioner's point of view, that the failure to recuse, but the drone's failure to recuse taints the votes of every other justice on the court, but the court declines to look at the issue. or you adopt a new practice in which the court, in fact, looks at the reef to seoul of, the individual recusal and makes the decision for itself, which puts it in the position of deciding who the members of the court will be on any particular case. >> i'm a little confused by this, this line of argument. what is pennsylvania? each individual judge decides

whether to recuse, right? >> in pennsylvania that was the opportunity for full-court review and petitioner just didn't avail himself of it in this case. he did in the prior case. >> i thought we were told that he had to go to the judge who wants to recuse. he cannot make a motion directly to the panel. he has to say judge, he should recuse come at a want you to refer the question. >> that is a misstatement of internal operating procedures. the court held in the goodhart case that aside and petitioner's brief but while the decision was in the first instance for the independent judge, the full court will look at the matter and would tell the justice that has to recuse. >> what triggers the look of? if the defendant permitted to say i want the judges who do not participate to make this decision speak with yes, your honor.

and council did so in a park is only several years ago. they filed a motion for reconsideration. justice castille recuse himself and the full-court went on to decide it. under the oips motion for consideration for the individual justice, not to the chief justice. so if petitioner three were correct, justice castille could've blocked that reconsideration. he did not. he recuse himself and pass it on to the rest of the corporate win and that is assigned to individual justice on the pennsylvania supreme court, for full-court that is assigned to individual justice. section two states expose on the assignment neither enhances the power of this judge or diminishes the power of the other justices to ensure operatives position. >> that's wonderful. how about if they got it wrong? it doesn't mean that the whole court looks at something it's gotten it right. if there's an ethical standard that says the judges been involved in a case shouldn't be there, and they got it wrong on

their own rules. if there's a constitutional standard, it doesn't mean they were right either. they got it wrong if they let him set. >> yes, sir owner, they still face a dilemma because there to make a decision about whether -- >> that have to do it now matter what meeting if the state is telling them look at this, and recuse him if it's appropriate to do so, in the state as opposed to obligation on them. >> the question is whether the constitution imposes the court to look at it in fact -- >> nothing about a decision in this case would require that. that's a feature unique to pennsylvania. many other states, goes up to the individual judge. >> in his recusal motion at page 200 of the joint appendix, sorry, page 200 to come you will see the petition made exactly this argument. he said, indeed due process requires that the full court

decide due process based on recusal claims. and i think on petitioner's theory that would be true. because it's a constitutional issue and the failure to decide a potentially taints the rest of the court. >> that's i think not what due process requires because at the pallet level the process is not the individual judge. it's the court. the recusal or non-recusal of an individual judge does not in and of itself automatically result in a deprivation of due process because he is not the process. the court is the process. you look at a variety of circumstances to decide whether the other members of the court under an objective standard come you can't an objective standard come you can't know what there doing subjectively but under the same objective standards applied in caperton, to determine whether it is a probably of actual bias on the part of the other members of the court. whether it's a court of very a court at some can be accorded 15

to under the petitioner's view even the 15-0 vote would be automatically, constitutionally invalid. >> if we say that, then we say that being a judge on a 15 judge court doesn't make much difference. you don't have a duty, and you don't have an obligation to you can't persuade your colleagues. it's very hard for us to write that kind of decision. >> i think the answer is what the pennsylvania supreme court states in its section two of its iop. under the court of every size it is the duty of each individual justice to make an independent determination following his oath to do the right thing, and that is why the court is not automatically invalid. thank you. >> thank you, counsel. mr. lev, four minutes remaining. >> thank you. let's start with the passage of time. in our view, the passage of time

isn't the relevant doctor. it's that it's the same case. even though this case has lasted a very, very long time through numerous different hearings and delays, this is the same case. and so what you had was chief justice castille participate in this case as both the prosecutor and a judge in the same case. and that's where the problem, that's where the due process problem starts. what separates this out from the ethical rules is that this is an extreme and rare case. that's what caperton was talking about, where the ethical rules were not sufficient to cover the problems. we know that this is an extreme and rare case because there's no other case like it, right? there is no other case that respondents have cited two, and none that we found where a judge in this situation has sat and decided on the case. >> this may be an extreme case

but if we do not say any personal participation requires recusal under the constitution, what other clear line can you give us? >> to the extent that caperton is not a clear line, i think we are still with caperton. if you want to clarifying -- clarified a lot of caperton, it is about the judge's participation in a significant decision-making in the case. and what issues before them are related to that decision-making, that's the line i would suggest that you can draw in this case. on question number two, if you accept the respondents position, what you would be saying is okay, it's okay to have one biased judge on an appellate panel, or two or three so long as a majority voted in

favor or not bias. that's not appropriate under the due process clause. the idea of fairness, the public confidence in the integrity of the fairness of the system requires that each judge the free from bias. and lastly, i would say about referring to the full court, we did that. we asked them if you look at our motion to recuse that's in the joint appendix, i think i section four of our motion says it justice castille denies this, we ask that the full court hears it. and justice castille, using his power as the chief justice, locked event. he said i'm going to deny the motiomotionmotion to recuse i'mg to deny referral to the full-court. sso we did what we could do for full-court hear it, and we weren't able to get that. thank you very much. >> thank you, counsel. the case is submitted. >> the u.s. senate is about to gavel and on this wednesday morning for more work on a bill that would authorize funding to

combat heroin and opioid prescription drug abuse your senators will take a series of votes at noon eastern. a final passage vote is possible later today. and now live to the floor of the u.s. senate it on c-span c-span. the presiding officer: the senate will come to order. the chaplain dr. barry black will lead the senate in prayer. the chaplain: let us pray. o god, our god, we honor your name. you continue to guide our nation and we trust the unfolding of your prevailing providence. help us to effectively

tell this generation about your mighty works, so that your name will be known by those not yet born. use us to inspire people to celebrate your matchless mercy and your power to save. thank you for keeping your word, for extending to us your daily blessings and for picking us up when we fall. guide our senators with your love today. be for them a shade by day and a defense by night lord, keep them on the road that

leads to life. we pray in your merciful name. amen. the presiding officer: please join me in reciting the pledge of allegiance i pledge allegiance to the flag of the united states of america, and to the republic for which it stands, one nation under god, indivisible, with liberty and justice for all. the presiding officer: the clerk will read a communication to the senate. the clerk: washington d.c., march 9, 2016. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable rand paul, a senator from the commonwealth of kentucky, to perform the duties of the chair. signed: orrin g. hatch, president pro tempore.

mr. mcconnell: mr. president? the presiding officer: the majority leader. mr. mcconnell: the senate will soon have a chance to come together in support of the comprehensive addiction and recovery act, a bill designed to help address the prescription opioid and heroin epidemic that's spreading across our country. we've seen the impact this crisis is having on all 50 states, how it's affecting people of all different ages and backgrounds. we know that heroin and prescription opioid addiction devastates communities, destroys families and claims thousands of lives each year. but we also know there are steps we can take here in the senate that can help heal our nation. for instance, just a few months ago, we appropriated $400 million to opioid-specific programs, which is nearly one-third more than what the senate appropriated the preceding year and all

400 millioned of those funds remain -- $400 million of those funds remain available to be spent today. we can take another step forward now with the big step with the passage of this bill. just listen to what some officials are saying about cara's potential impact. northern kentucky's top antidrug official said this bill can help allow individuals, families and communities to heal from this scourge. the president and c.e.o. of a nonprofit organization with programs in kentucky noted that cara can create lasting impact in kentucky and ultimately help lead to more kentuckians receiving the treatment they desperately need. a group that provides overdose prevention training in the commonwealth said that cara can give them a stronger foundation to move from training to action. and president obama's own drug czar noted that the provisions like those in cara are critically important to make headway in this epidemic.

so the bill before us with all of its important provisions is a result of hard work and leadership for many colleagues on both sides of the aisle. of course, there is the lead republican sponsor of this bill, the junior senator from ohio, senator portman, who has worked closely with colleagues in both parties like the junior senator from new hampshire, senator ayotte, as well as the junior senator from rhode island and the senior senator from minnesota. there is the chairman of the judiciary committee, senator grassley, who worked to move this bill quickly out of committee by voice vote. i also want to thank the many senators who work with the bill managers to process the kind of amendments both sides agree would make this bill even better. that includes the senior senators from iowa and california whose amendment would aid in targeting illegal drug importation. it includes the senior senator from west virginia whose amendment would build upon education and awareness efforts

in an effort to underline the dangers of opioid abuse. and it includes the junior senator from pennsylvania whose amendment would allow medicare advantage and part d plans to implement a prescription drug abuse prevention tool, a tool that's already available for use in kentucky in the medicaid program and in private plans. so the bipartisan collaboration we've seen thus far shows what we can achieve on behalf of the american people when we work together toward important shared priorities. the passage of cara would bring us one step closer to ending prescription opioid and heroin addiction and overdose, so let's keep working together to pass it. mr. reid: mr. president? the presiding officer: the democrat leader. mr. reid: mr. president, the republican leader and i have worked together in leadership

capacities here in the senate for almost 20 years. he has been the whip, i was the whip. i was majority leader, he was the minority leader, and vice versa. so my presentations over the last few weeks does not take away from the fact that mitch mcconnell and i are friends. we have worked together for a long time, and we have done our best to move the senate forward, but that does not take away from my need as a united states senator to pronounce publicly when he and i disagree, so i want to make sure the record is reflective of that. as each day passes, the republican leader continues to

transform his caucus into the party of donald trump. that's not good. you can see it in the republicans' rhetoric. the senators are using increasingly extreme and disturbing language in defending their unprecedented obstruction of president obama's supreme court nominee who yet has been -- who yet has been -- as yet is unnamed. the assistant republican leader said the president's eventual nominee -- quote -- will bear some resemblance to a pinata. we talked about in the past what a pinata is. he's comparing the supreme court nominee to a children's party favor that gets smashed repeatedly with a baseball bat or something similar to a baseball bat. that's nothing more than a thinly veiled threat from senator cornyn serving notice on the coming assault of the president's nominee. we should not forget that we don't know who this nominee will be. we know nothing about this

person, whether it's a man or a woman, educated at harvard or stanford or the university of utah, university of new mexico. we don't know. but the republican leader doesn't care who their eventual nominee is, it appears that's the case. he doesn't want his senators to care either. all he cares about is appeaseing trump's lead in the party which is getting pretty big and trump's radical followers. after all, this is the same republican leader who yesterday once again refused to distance himself from donald trump, he refused to condemn his hateful campaign for president. instead, he pledged to support the republican nominee. it's really shocking to see this transformation. republicans have not always been this irrational and vicious. even senator cornyn used to know better. during justice alito's confirmation hearings, the

then-junior senator from texas was also talking about pinatas as he decried personal attacks on supreme court nominees. here's what he said, and this is a quote -- "i'm happy judge alito survived these unwarranted attacks. i'm also sad his family had to be subjected to them as well. at some point, however, we as a committee will need to come to terms with our confirmation process." listen to this. "the current regime treats supreme court nominees more like pinatas than human beings, and that's something none of us should be willing to tolerate." close quote. the republican whip gave his pinata talk the day the senate judiciary committee approved the alito nomination. now that president obama is the one putting forth the supreme court nominee, it seems the assistant republican leader is willing to tolerate, even promote, these unwarranted attacks he once denounced. so why the change? the answer is very simple.

the senior senator from texas, like every other member of his caucus, is simply obeying the republican leader's orders as he leads them to become the party of trump, the caucus of trump, the conference of trump. this is a path the republican leader has chosen for his party, a path of demagoguery and lapsed constitutional duties, a path he forged which led to the rise of donald trump. i do not understand why so many of my republican colleagues are blindly following this path down a very, very bumpy road. the moderate republicans, however few they may be, who see they are being used by the republican leader to apiece -- appease the trump leader of the party or the voice of reason from the republican leader of the caucus to take a stand against this unprecedented dereliction of duty. keep in mind, the senator from

texas a decade ago was decrying a nominee, a republican nominee being treated like a pinata. now ten years fast forward, he is saying i'm going to make a pinata out of whoever it is, even though i don't know who it is. mr. president, i know there has to be some moderate republicans or republicans, because outside of this building there are republicans urging their colleagues to forgo this ludicrous obstruction. the person that i enjoyed working with right here, a very conservative senator from mississippi, trent lott, who was the majority leader. i worked with him very closely. he was a conservative, i repeat, but he was very pragmatic, but yesterday or the day before he lamented his party's handling of the supreme court vacancy. here's what he said. my party would have handled it differently. my attitude particularly on the supreme court was that elections

do have consequences, sometimes bad, and i tried to lean toward being supportive of the president's nominees, whether democrat or republican." close quote. that's how, mr. president, we used to do things around here. it was the standard that if a president put forward a nominee and that person did not have some ethical problems and was basically qualified, we would take care of that. no better example of that than clarence thomas. i didn't vote for clarence thomas. i wish he hadn't gotten enough votes. but, mr. president, we did not stop that matter from going forward. he just barely made it. he got 52 votes, but there was no filibuster. he was nominated by a republican president. the president liked him. on paper, he was qualified. he was a graduate of yale law school. but that isn't how they're doing things around here anymore. and what trent lott said, he's

not alone. former republican senator from indiana, someone we all liked a lot, dick lugar, is urging senate republicans to do the right thing, honor their constitutional duty. here's what he said, and i quote reluctance given the controversy that surrounds all the debate that's already occurred, but that's not sufficient reason to forgo your duty." close quote. but richard lugar is saying do your jobs. you have a constitutional obligation to do that. there are two quotes that i just gave from strong republican leaders telling senate republicans do their jobs, so why won't they? the six nominations made to vacancies have existed during presidential election years since 1900, well more than 100 years ago. since that date, each of the six have been confirmed by the senate. that's what the senate has done in the past and they should do

now. so i say to my friends across the aisle listen to reason. heed your constitutional duties. listen to what the american people are saying. this is not a popular stand that they're taking. it's wrong. don't fall on your sword for donald trump and his kind. don't sacrifice your integrity as a senator. so stand up and do the right thing. promise to give president obama's nominee a hearing, a meeting and a vote. that's your job so do it. mr. president, i see no one on the floor. would you announce the business that we're going to have during the rest of the day. the presiding officer: under the previous order, the leadership time is reserved. under the previous order, the senate will be in a period of morning business for one hour equally divided with senators permitted to speak therein for up to ten minutes each and with the majority controlling the first half and the democrats controlling the second half.

mr. reid: i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

a senator: mr. president? the presiding officer: the senator from arkansas. a senator: i ask that the quorum call be lifted. the presiding officer: without objection. a senator: there's a vacancy on the supreme court and this chamber and the american people must fully understand what is at stake in choosing a person to fill that vacancy. for a generation, justice scalia was the conservative heart of the supreme court. whoever takes his seat will not replace him because there is no replacement. but his passing has the potential to dramatically shift the delegate balance of the court. should justice scalia be replaced by a philosophically liberal justice, the implications for the rights of americans and the direction of our nation would be profound. a liberal justice may mean that the individual right to keep and bear arms will be nullified and laws that deprive americans of the means to protect themselves and their families will proliferate. mr. cotton: a liberal justice may mean the president's extra

constitutional executive order to grant amnesty to illegal immigrants will be upheld, trampling the separation of powers and the will of the american people. a liberal justice may mean that president obama's plan to destroy america's coal industry will survive destroying thousands of jobs and steady income for american families. a liberal justice may mean that the government will be empowered to force people of faith to violate their deeply held beliefs to subsidize they abort. these are the only issues we can see, novel issues that strike at the core of our constitutional order will continue to arise and how they are settled will hinge greatly on the next justice. because so much depends on whom the new justice is, we cannot rush into this decision. because the law of the land may take such a dramatic turn, the members of this chamber must

first get the input of the american people on what the direction of our country should be. and because the next justice will guide american law for the next generation, the senate should not subordinate our constitutional responsibility to advise and consent on the supreme court nominee to a lame duck president with the stale mandate. this is the way forward that the majority leader and chairman grassley have charted and it's the right one. we have an election in november, after all. in a few short months we will have a new president and new senators who can consider the next justice with the full faith of the american people. why would we cut off the national debate about this next justice? why would we scel of the voice -- sketch the voice of the people. why would he deny the voters a chance to weigh in on the makeup of the supreme court? there's absolutely no reason to do so or at least no principled reason to do so. and that's why no congress in

our history has confirmed a supreme court nominee of a lame duck president of either party for a vacancy that arose in an election year. abiding by this practice this year is even more pressing. some of my democratic colleagues argue that the american people have already weighed in on the supreme court by reelecting president obama in 2012, but i would remind those that make this argument that the constitution requires to institutions, the president and the senate to agree upon a new justice, and in 2014 the voters overwhelmingly chose to send republicans to the senate making clear their dissatisfaction with this president's cavalier attitude towards the constitution and his duty to execute the laws as written. if the 2014 election meant anything, it meant americans do not want this president to determine alone the course of american law for a generation in the supreme court. when arkansas elected me in 2014

to represent them, they sent me to washington with a mandate to act as a check on the president and i will carry out that mandate. but many of my democratic colleagues have come to this floor to demand that the senate's long-standing practice of declining to confirm supreme court justices in an election year be discarded. and a nominee considered right away. perhaps the most impassioned of these pleas come from the senior senator of nevada, that the minority leader would wish to dtion card a long-standing practice of the senate particularly one related to judicial nominations is not a surprise, however. he was of course the person in 2013 who detonated the so-called nuclear option discarding the 60-vote threshold for appellate and judicial court nominees that existed in this chamber for 200 years. he did so in order to steam roll the institutional rights of the minority party and pack the lower courts with as many

liberal obama nominees as possible. but in terms of dignity and public esteem such as he had, that ill-considered move cost the minority leader dearly. he could only exercise the nuke lar option if he flip-flopped on his prior vehement opposition to it. the leader stood steadfastly against the nuclear option when it served his political interests. he called the nuclear option wrong, illegal and even un-american. he was to adapt a familiar saying against the nuclear option before he was for it. the current debate of fill justice scalia's seat that we're seeing, the minority leader has performed a similarly brazen flip-flop, not that we should be surprised by that. today the minority leader claims that the constitution compels the senate to take up immediately any nominee president obama sends our way. but ten years ago again he sang a much different tune.

the minority leader came to this very same floor to speak passionately in defense of the constitutional prerogative of the senate to defer a vote on the president's supreme court pick. he forcefully stated that nowhere in the constitution does it say that the senate has a duty to give presidential nominees an up-or-down vote. it sayses appointments should be made with advice and consent of the senate and that is a very different thing than saying that every nominee receives a vote. so what's changed in the ten years since the minority leader uttered those words? well, of course, merely the poll tibs of the situation -- politics of the situation. i ask with the current president were a republican, would the minority leader be taking the position he is today? if the current president were not a fellow democrat, would the minority leader still be inclined to trash the constitutional prerogatives of the senate and abandon its long-standing customs? in light of what you might call the diversity of the minority leader's views over time, i think it's understandable that

questions have been raised about the sincerity of his position. in the quiet moments following the rambling jeremiahs of the minority leader that he directs at republicans on the senate floor, i think my colleagues might be forgiven if they entertained the thought that the principled ground on which he claims to stand is slightly less than firm. in the coming months, there is much work for congress to do. we must pass a bill to fund and rebuild our military. we must continue to improve the conditions for wage growth and the creation of new jobs. we must conduct stringent oversight to rein the excesses of the president but with regard to a supreme court nomination, the only task for this senate is to wait patiently and listen to the american people. mr. president, i yield the floor. i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

a senator: mr. president? the presiding officer: the senator from south dakota.

a senator: mr. president, i ask unanimous consent the quorum call be dispensed with. the presiding officer: without objection. a senator: mr. president, over the last 20 years, we've seen incredible advancements in communications and information technology. the united states has led the world in this innovation thanks to our brilliant entrepreneurs and scientists, world class universities, massive private sector capital investment, a culture that rewards risk taking and a favorable regulatory environment. mr. thune: but increasingly, our lead in innovation is threatened as american businesses are forced to contend with an ever growing number of outdated laws and regulations. while our businesses have often managed to succeed anyway, american industries deserve better from our government. congress has a responsibility to ensure that our statutes and regulations are appropriately and narrowly tailored for today's economy and for the future. my commerce commerce committee cool leagues have been doing our part to make sure things keep

pace with innovation. last week we unanimously passed the bipartisan mobile now act which i introduced along with the committee's ranking member senator bill nelson. this legislation will give a boost to american innovators who are working to make the next generation of wireless technology known as 5g a reality. 5g wireless will obviously mean things like faster movie downloads and more advanced smartphones, but it will also mean massive leaps forward in areas like technology, entertainment, public safety, and health care as well as other economic benefits that will make american lives better. one of the best examples i've heard came from former fcc commissioner meredith atwell baker. she pointed out that right now a smart car communicating with 4g wireless technology takes four and a half feet to brake in response to an obstacle. by contrast a smart car with 5g

technology would travel only one inch before breaking, which could be the difference between life and death. but to make 5g wireless technology a reality, we have to put the right policies in place. policies that maximize the efficiency of the airwaves that transmit wireless broadband signals, the bands of lek troa magnetic spectrum that make up our nation's airwaves are in limited supply. while we can't make more airwaves to carry additional spectrum, we can make changes to how they're used and to who uses them to improve efficiency and to do more with what we have. the mobile now act will require the government to make at least 255 meeting ga hurts of spectrum available for broadband use by the year 2020. that's a lot of spectrum. but mobile now doesn't stop there. the bill also directs the government to assess more than 12,000 megahurtz of super high

freens defensey spectrum for broadband suitability. it's seen only limited use to date but as new technologies come online the next few years, this spectrum will become increasingly viable. indeed most people expect that the super high bands will become critical for our 5g future. making spectrum available is important, but freeing up spectrum does not help our digital economy unless and until we put it to good use. this is why several of mobile now's provisions focus on speeding up the deployment of the communications facilities at the heart of our nation's broadband networks. one way to do that is by putting a shot clock on federal agencies to force them to make speedy decisions on companies' applications to place wireless facilities on federal property. this is critical for rural states like south dakota and nevada where placing wireless facilities on federal lands

could bring more high speed internet service to underserved communities. mr. president, the mobile now act is an example of what is possible when members put aside their partisan differences and work together to come up with common sense proposals to spur economic growth. in addition to the provisions senator nelson and i wrote, mobile now includes all or part of six other bills which represent work of senators booker, daines, fischer, gardner, klobuchar, manchin, moran, rubio, schatz and udall. we also adopted important amendments from senators heller and peters. even the chairman and ranking member of the senate environment and public works committee, senator inhofe, as well as a long-time former member of the commerce committee, senator boxer, made key contributions to the bill's did once section. the mobile now act would not ve