all of the winning entries are available online. >> here is a headline from politico. obamacare saying he is not responsible for the rise of trump. while he acknowledged his buty as president to bridge divides between the american people and chief executive obama found it novel the gop would argue his efforts over the last sever n years have led to trump's march to republican nomination. i will not validate the notion that the republican crack uptakeing place is a consequence of actions i have taken the president said. that is from politico again. the president made those remarks in the rose garden with justin trudeau, canadian prime minister who is visitting.

it is the prime minister's first visit and the first visit since 1977 from a prime minister of canada. chuck grassley said his committee will not take up a supreme court nominee until a new president is elected and sworn in. the committee met today. that is coming up next on c-span2. then charles bolden testifies about his agency's 2017 budget request. and later a discussion on the use of executive power. join c-span friday at 1:30 p.m. eastern for the funeral service for former first lady nancy reagan. first lady michele obama, and

former president george bush and laura bush will attend the funeral. ms. reagan will be buried next to her husband at the library. live coverage on c-span, c-span radio and cspan.org. the republicans are saying they will not vote on any nominee for the supreme court that is sent in them. senator grassley is the chair and senator leahy is the leadcrack on -- lead democrat on the committee.

[inaudible conversations] >> i can't officially start this meeting until we get one more member here. but since i was going to say something before i gave my opening remarks i will say them now so we don't waste an a lot

of time because this is a very important debate we are going to have. i am saying this not for my members but mostly for people watching on c-span that often think that everything we do in washington, d.c. is political or partisan. this debate coming up will be very partisan but i hope people remember that over the last 14 months this committee has acted in a very bipartisan way from the standpoint of 21 bills getting out of this committee that have gotten out either on a consensus bases or a prod bipartisan bases. one of those bills is going to pass the senate yet this morning i think by a very wide margin. the opioid-heroin addiction bill that is before the senate.

so i hope that people will realize that there is strong feelings on both sides of this issue. they are very much divided along party lines; this particular debate that is it. i hope that everybody realizes that these are honest, strongly felt views that are going to be expressed. we ought to encourage that sort of dialogue within our democracy. that is what you will see this morning. i would like to ask if you think i could go ahead -- no, i will wait. i also wait for senator leahy and i will wait now. where was asking staff if he thought it was okay if i go ahead. i will stop now and wait for senator leahy.

[inaudible conversations] [inaudible conversations]

>> before i give my opening statement and then go to senator leahy i would give a little bit about the agenda. i know we are going to have several debates in this committee on the floor on this subject. todays was new to me because i didn't know we had a vote skelgs scheduled at 11:30 but i would like to finish at 11:30 so we all get a chance to vote. we have several bills on the agenda for the first time as well as four nominees and three of them are ripe for a vote. i would hope to move those three out of committee last week but we know we had difficulties between the two parties on that issue but i will not go over that. as i said yesterday, i want to open this meeting up for discussion on the supreme court

vacancy before we turn to the agenda. so assuming we get to the legislation and nominees today we will hold over the legislation and one nominee and then we will vote on the other three nominees. there has been a lot of discussion about the supreme court vacancy the last couple weeks. the record is clear about how the senate approaches vacancys that arise in a presidential year and why we are going to approach it the same way. i have spoken at length on the floor about these issues. somehow i doubt that my colleagues have been spending their free time reading my speeches so i thought i would spend a few minutes reviewing where we have and disspelling some of the myths i have heard repeated a number of times. the most appropriate place to begin is with chairman biden's famous speech in '92. as we know in the 20,000 word

speech chairman biden went into the great detail about the supreme court vacancy during a heated presidential debate. now we are pretty familiar with the biden rules so i am not going to repeat them. but based on what i have been hearing there appears to be confusion about the matter so i would like to clear a few things up. first of all, there has been some suggestions that somehow chairman biden didn't mean what he said. it has been suggested that when he explained why the senate shouldn't consider a supreme court nominee during a heated presidential campaign somehow the actual words he used had a secret or completely different meaning. as a side, i would note this sounds like how some judges tend to read the constitution. thankfully for all of us, chairman biden spoke at length, as he often did when in the senate, and he was very clear.

for the benefit of my colleagues who have not heard it here is just in part. this isn't going to be as long as what you heard niasia ellis on the floor of the senate. >> darn. >> oh darn. quote should a justice resign this summer and the president move to name a successor, actions occurring days before the democratic convention and weeks before the republican convention meets, a process that is already endowed n minds of many will become distrusted by all. senate consideration of a nominee under these circumstances is not fair to the president, nominee, or the senate itself. if that wasn't clear enough chairman biden continued. mr. president, where the nation should be treated to a consideration of a constitutional philosophy, all it will get in such circumstances is partisan

bickering and political posturing from both parties, from both ends of pennsylvania avenue. as a result, it is my view that if is a supreme court justice resigns tomorrow or within the next several weeks or at the end of the summer president bush should consider following the practice of the majority of his predecess predecessors and not name a nominee until after the election is complete. chairman biden went on to say if the president didn't follow the practice of the majority of the predecessors and submitted nominee anyway than the senate shouldn't consider the nominee. let me offer a couple observations. i said over the last few days some have tried their best to recast what chairman biden said in an attempt to give it a totally different meaning.

even the vice president suggested what he said in '92 isn't what he meant. instead he said it was about greater cooperation between the president and the senate. chairman biden did talk about more cooperation. there is only one problem. he said cooperation should occur quote in the next administration end of quote. it was only after discussing why the president shouldn't send a nominee if a vacancy arose. and only after explaining why the senate shouldn't consider any such nominee regardless of how good a person is nominated that chairman biden turned to how the process should be changed in his view quote unquote in the next administration. again, here is what he actually said quote let me start with the nominating process and how that process might be changed in the next administration whether it is democrat or republican.

end of quote. just so there wouldn't be any confusion, he repeated it two sentences later. quote with this in mind, let me start with the nomination process and how that process might be changed in the next administration and how i would urge to change it as chairman of the judiciary committee were i to be chairman in the next administration. end of quote. chairman biden was clear. whatever you do all of the spin in the world isn't changing that fact. we have talked a lot about the biden rules but not as much about why he felt strongly that conducting hearings under these circumstances would be bad for the nominee, process and senate. it was because the process wouldn't be about constitutional

interpretat interpretations and the proper rule of the court. chairman biden said quote where the nation should be treated to a consideration of constitutional philosophy all it will get in such circumstances is partisan bickering and political posturing from both parties from both ends of pennsylvania avenue end of quote. chairman biden was making the point that all of us know to be true. but only some of us are willing to admit considering a supreme court nomination in the middle of a presidential campaign would be all politics and no constitution. if there is any doubt that this was chairman biden's view look at how he described the problem in an interview a week before his famous speech in '92.

quote can you imagine dropping a nominee into that fight? into that coldren in a presidential year? quote whomever the nominee was, good, bad or indifferent, would become a victim. end of quote. i raise this in part because we are witnesses how raw politics are affecting process. regardless of what some are willing to admit, everybody knows any nominee submitted in the middle of this presidential campaign isn't getting confirmed. the white house knows it, democrats, republicans, and even the white house press is saying that. why all of this outrage for a hearing and demand for a hearing

everybody knows will not result in a nomination. the other side is looking to score as many political points as possible. that is why the minority leader has taken to the floor on a daily bases to attack me. we have seen that thing from him before around here. it is all about using this process to score political points. it is that simple. we are even seeing reports from the white house and the election process is guided by raw calculation and what they think will exert the most political pressure on me. this guided logic appears to be if they nominate someone who i, or other republicans supported, for lower court, it will conclude it is a good idea to drop that nominee and what chairman biden called the coldron of a hearing during a heated presidential campaign.

people conveniently forget that judge borke was confirmed to the washington, d.c. circuit but that was before the other side viciously attacked and smeared him when he waw nominated to the supreme court. it is being suggested if the white house lects a judge from iowa i would try to convince my colleagues it a good idea to hold a hearing. we have been upfront and clear but in case there is any confusion over whether this obvious political ploy would work i think we need to be crystal clear. it will not work. we are not going to drop any nominee into an election year cauldron and i am not going to let it happen to the good people of iowa. let me touch on a few more points before turning to the ranking member. some of the arguments we have

heard are so absurd they don't deserve rebuttal. but my friends seem to be under the impression if we repeat something enough it will become true. i heard it said the kennedy episode lands support to the notion the senate should consider a nomination during the middle of a presidential campaign. the argument is that justice kennedy was nominated in '87 and confirmed in '88 this somehow disproves chairman biden's argument. the only reason that seat was still vacant in early '98 is because judge burke was treated to an unprecedented and shameful smear campaign in '87. those of us who were here remember it very well. that brings me to another related point. it has been suggesting the democrats here in '87 and '91 and chairman biden in particular should be applauded for how they handled the burke and thomas nominations.

i will set aside the fact neither of these nominations occurred during a heated presidential campaign. the argument is judge burke and justice thomas were treated to a fair process even though they didn't have the support of the majority in the committee they were reported to the floor. i am not going to negate those nominations but where was here for judge burke and justice thomas and i saw what happened to both of them. i saw what happened to their records, to their repatiutationd the impact it had on their families. if anyone wants to argue those individuals were treated to a fair process you are free to make that argument but to this senator it would be laughable if not so sad. there wasn't a vacancy when chairman biden took to the floor

in '92 but consider this. chairman biden spoke on the floor that day before the end of the term and that is the day when justice often announce their retirement. it is true there was no vacancy at the time. but the chairman of the senate ju judiciary committee went to the floor of the senate and put the public, all nine justice, and the president of the united states on notice. if any justice was considering retirement they should know that the senate was not going to consider any replacement consistent with past practices. based on what we heard over the last few days you would think those expressing outrage today would have rose to the floor to express their disagreement with chairman biden in '92 but for

some reason that didn't happen. not a single democrat went to the floor that day, or the days and weeks that followed, to stand up and say no, mr. chairman, you have the history wrong. not one. not one democrat went to the floor, stood up and said no, mr. chairman, there may be the senate's history and there may be very good reason for it but i think we should press ahead with an election year nomination anyway. not one. not a single democrat went before and stood up and said no, mr. chairman, i disagree. we haven't located any newspaper editorials taking him to task either. so much for fairness between then and now. so we should keep in mind when we hear all of this outrage today keep that in mind. let me make one final point. if this particular argument were not so transparently absurd it would be worthy of more debate. it is the under that because

republican senators met to discuss the issue that somehow we were not being upfront and open. we could get into all of the secret meetings that the other side held before they walked into the the chamber on november 21st, 2013 and invoked the nuclear option but i don't think that would be a constructive debate. everyone in this room knows we meet to discuss importance matters and the reason i know everyone knows it is because i met with each one of you on one issue or another and you didn't invite the press or public. i met with every republican when i became chairman and offered to do that with every democrat and i did meet with most of you on the other side of the aisle so i can learn your priorities and what each one of you wanted to see accomplish. i have co-sponsored legislation

when you even when you led the battle has senator durbin has done on sentencing reform. that is how we can learn where we can agree, where we can't, and where woe might be able to work together. that is how we get things done. that is how you lead. the bottom line is this: we didn't play games, we didn't hide the ball, we made it clear up front to the president, senate democrats and the president what we wanted to do. we know others would make this as political as possible. it doesn't matter because this is the right thing to do. senator leahy. >> thank you, mr. chairman. i will not go through all of the things i disagree of the

recounting of the facts because we would be here too long and you and i have been friends for too long. i know during election year nominees in the last your of president reagan's -- >> is his mike on? >> turn your mike on. >> it is on. i don't know if is carrying. in the last year of president reagan's term, the democrats were in charge and it was presidential election year and he was going to be leaving the presidency and we voted on a supreme court nominee of president reagan. talk about partisanship. every single democrat voted for president reagan's nominee in a presidential election year. i am sorry that you feel that somehow this attention is

directed at you and this is about you. it is not. it is about the constitution which is more important than you, me, or anybody else in the room. the president has a constitutionconstitutio constitutional obligation to nominate when there is a vacancy in the supreme court. we have a constitutional -- is this not working? >> is that better? okay. as i said -- as i mentioned earlier, when we talk about what happens in presidential election years, the democrats were in control of the senate unprecedented reagan's last year in office, presidential election year, every single democrat

voted for his nominee to the supreme court. i know my good friend from iowa said mow this effort is directed at him. i would say it is really not about him or any one of us. it is about the constitution which is a lot more important than any one of us. the oath that the president took to uphold the constitution, which requires him to nominate somebody when there is a vacancy, and requires us to exercise our advice and consent in voting yes or no. but we cannot sit here in close door meetings and agree with just part of the committee while we will vote maybe. the american people want us to do our job. we are paid to do our job. voting maybe is not an option.

senator grassley, we have been friends for a long time. i hope while we disagree we will continue to work together in the legislation and oversight matters as well as nominations and he is correct. we have sponsored a lot of leahy-grassley and grassley-leahy. we try to do that in the best tradition of the senate. he is a man who embodies those traditions and the courtesy of this body and something that is unfortunately sometimes lacking. but those of us who have been here for a while appreciate this. i was upset when it was recommended the next supreme court nominee will not receive any consideration this year. there was no unanimous

recommendation. this is our first business meeting to consider anything since the untimely passing of justice scalia. the first member of congress or anybody who said anything publically about justice scalia's passing was the republican leader who said there will be no replacement. a lot of us would have like to at least had the memorial and the burial of the justice before that talk started. the committee hasn't discussed how we will proceed. but the majority can determine what they want to do it is not unanimous in contrast to what thepub -- the republicans say. it was not.

that is blatantly false. unanimous requires all of us and we were not invited to that closed door meeting. i want to with you as it has been the case on all supreme court nominations. i know you want to conduct the work fairly and i hope you will return to the practice in working together. we may disagree with each other but the tradition has always been that the chair and the ranking member, and i have been both chair and ranking member, on these kind of major decisions in this committee meet together and talk about it first. it is important we try to work together because we are not at the end of the year. we will have many matters to grapple with over the next nine months. you and i were elected to serve for six years. not five and a quarter. we are at the five and quarter mark.

we were elected by the people of iowa and vermont to serve for six years. i intend to work every day until the end of my term. concerns about shutting down the process of the next supreme court nominee some senators are pivoting complaining about how lower court nominees have been treated in the past. we can go back and forth on this for days. the last two years of president bush's term in office, when we took over, we confirmed 68 of his judges. i think you have allowed 16. but it could be dispute this committee has always treated supreme court nominees differently than other nominees. since i have served in the senate and i have served here for almost 42 years. the senate judiciary always head hearing on the pneumy pne

nominees. i am glad to see senator hatch here. when i became chairman of his committee, i and senator hatch the ranking mem, talked about how this would continue -- member -- i am not saying would change but continued to consider supreme court nominees. in a letter to all senators, senator hatch and i wrote the practice had been to report supreme court nominees to the senate once the committee completed its consideration. this has been true even in cases where the supreme court nominee was opposed by the majority of the senate judiciary. even in a case where republicans and democrats voted against the nominee it was said it should be considered by the full senator. the republican leader at the time, senator lot, read our letter in the congressional record to ensure it was

available for all americans and every single republican and democrat didn't disagree showing the long understanding of the committee to an open fair process to supreme court nominee. this has been the committee's practice regardless of who held the gavel and who is in the white house. last week a distinguished group of scholars wrote the constitution gives the senate every right to deny conformation to a presidential nomination. denial should come after the senate deliberates over the nomination which includes hearings the senate judiciary and anything less is a breach of the senate's best practices and tradition for much of our nation's history. i ask unanimous consent this

scholar letter be included in the record. >> without objection, so order. >> i love the senate. i love the traditions and i love the way senate, not buzz i am a senator, but because i believe the senate could be, should be and at times has been the conscious of the nation. every one of us takes an oath to uphold the constitution so help me god. so the public conformation hearing the senate has never denied a supreme court nominee a hearing and a vote. you cited comments from vice president biden but the fact is we have taken action every time there has been a supreme court vacancy. i can read all kinds of things from debates but i would say this: the actions continue to speak louder than any words. our actions speak louder than any words and our actions show

we have always, we have always gotten here hearings and had votes when there is a supreme court vacancy. that is what senator hatch and i said in our letter. j -- the importance of the supreme court can't be understated. take a deep breath, return taking things one step at a time, and return to how this committee has long treated supreme court nominees no matter which president nominated them. we have the president will nominate soon a person. he will fulfill his duty that he swore to do, so help me god, and now after he does, i would remind everybody the consideration of his supreme

court nominee as a constitutional duty of each senator. i hope they are all going to do our job here. the one we took the oath of so help me god that we will do. thank you, mr. chairman. >> senator hatch? >> thank you, mr. chairman. this is an interesting hearing. the question regarding the vacancy of the death of justice antonin scalia is when not whether a nominee should be considers. the democrats say the constitution shows a prompt vote whenever the president choses a nominee. anything else they say would not be doing our job. rarely have words been so misleading. the nomination power is given to the president and the advice is

given to the senate. the constitution doesn't tell the senate how to exercise its power. the senate must decide in each situation and has done so in different ways, at different times, under different circumstances. the democrats know this is true. during the 102nd congress, then chairman joe biden, denied a hearing to dozens of nominees and recommended if a supreme court vacancy occurred the entire appointment process should be deferred until after the election season was over. between 2003-2007 democrats on and off this committee voted dozens of time to deny any conformation vote to republican judicial nominees. in 2005 harry reid said the constitution does not require

the senate to vote on a president's nominee. when he chaired the committee under a republican president, senator leahy denied a hearing to dozens of nominees who were never confirmed. senator charles shumer stopped this. democrats proposed filibusters under president clinton, supported them under president bush and abolished them under president obama. democrats had their reasons for these statements and actions and i am sure each time they believed their positions in these matters was legitimate. those statements and actions are not compatible with the position that the congress requires prompt hearings and floor votes for all nominees. if what democrats say today is

true, vice president biden in 1992 advocated violating the constitution. the minority leader was flat wrong if that is the case. democrats liberal allies equally confused. we received a letter claiming the constitution requires quote timely hearings and votes unquote. some of these same groups publically and forcefully advocated denying floor votes to republicans. we received letters it is the quote senate's constitutional duty to hold a hearing and timely vote on the scalia vacancy. i am well familiar with law professors in this country and

they make a lot of different claims. i am not aware any of those know the constitution doesn't require the senate to vote on a president's nominee. did any of these professors complain with so many other senators voted over and over to prevent any converimation votes firearmly or otherwise for republican judicial nominees? of course they didn't. this is a political stunt that is misleading the public. the constitution has nothing whatsoever to do with it. mr. chairman, neither of the constitution, nor the other parties political priorities, dictate how the president or the senate exercise their respective powers in the judicial appointment process. i believe there are other reasons for deferring the

process for the scalia vacancy. i would require those saying a prompt hearing is required that this committee wasn't even made until 29 years after the constitution was drafted. enough absurd claims about what the constitution plainly does not require. if my democratic colleagues really want to argue that republicans today should not have the same ability to structure the conformation process as democrats did in the majority they should make that case. they know the american people will not except such a position. mr. chairman, i am concerned about this because it just seems to me this is a presidential election mess. i have never seen it worse.

i have never seen the country more at odds or on edge over a presidential nomination process. we all know that whoever picks the next nominee for the supreme court that it is going to be a big battle no matter what happens. that is the way it looks to me and that is based only on 40 years in the senate. so all i can say is that we have every right to determine that this is not the time to bring up a nominee for the supreme court of the united states of america and we have every good reason to not do it under these circumstances. i hope we can work together in the future and this resolves itself as it should. >> senator fienstein? >> thank you very much, mr. chairman. mr. chairman, my words are said

this morning with considerable disappoi disappointment. i have great respect for you, mr. chairman, and most of my colleagues on the other side so let me begin with some history. [laughter] >> some of those on the other side would say the same thing about their side. [laughing] >> let me begin with some history. no supreme court seat has been kept vacant by senate in action for over a year since the civil war. i think it is important to realize what that means in terms of history and a four to four court. first some history. 155 years ago last week, march 4, 1861, president lincoln

delivered his first inaugural address here at the capitol building. lincoln had won the election in november. as we all know, the nation was about to enter years of brutal civil war. lincoln closed his inaugural by appealing to avoid the bitter conflict that was to come. he said and i quote we are not enemies but friends. we must not be enemies. though passion may have been strained, it must not break our bond of affection. then he appealed to the better angels of the nation. the first battle of bull run happened about 32 miles from here and there was concern washington itself was at risk. a during all of this there was

a vacancy on the supreme court. peter daniel died in 1860 and president bucannon spent up a nomination in 1861 three months after lincoln's election and only a month before lincoln's inauguration. multiple states had already voted to secede by that point. the nominee, jeremiah black was put up. president lincoln nominated samuel miller, an iowa resident to fulfill the seat and he was proved. that was the last time the supreme court had a vacancy of more than a year. it took our nation tearing apart and at war with itself for a senate to keep the supreme court

seat vacant for more than a year. that was the last time it happened. no supreme court seat has been kept vacant by a senate in action for over a year during that time. what is happening today is contrary to our committee's practices even in divided government and election years. also, no nominee for supreme court vacancy has been denied a hearing since 1916 when the committee first started holding hearings on nominations. that is 100 years of a precedent. we have confirmed nominees during presidential election years. most recently a democratic senate confirmed justice kennedy, a republican, in the final year of reagan's term. 14 supreme court nominees in fact have been confirmed during presidential election years. clerance thomas did not receive

a majority vote of support in this committee but still was confirmed by a democratic senate in october of 1991 after the presidential election campaign had gun begun. i remember it because it was during my first campaign for this body. in 2001, as senator leahy has said, senator hatch and senator leahy recognized our long-standing practice to give nominees fair consideration; a vote in the committee and a vote on the floor. this was done in the joint letter that senator leahy referred to and it was entered in the congressional record for all-time. that was an agreement made in a democratic senate when a republican, george w bush, was in the white house. it is this body and committee's

job to look carefully at the nominee and give that person a fair hearing and a vote. the effect of this obstruction is like to leave the court with only eight members over two terms of that court if you actually think about the timing. now what does that mean? out of 8,000 petition the court gets for review a year the court takes about 80. it choses those primarily where there is a disagreement among lower courts about important federal issues. over two years we are talking about 160 cases and 16,000 requests for review that are potentially impacted. not to mention emergency requests that do not have the luxury of time. now, of course the court isn't going to deadlock in every case. but the potential for deadlock

is greatly increased when the court has only eight members and the court previously because divided 5-4 frequently. tie votes in the supreme court do not settle the dispute heard by the court and they don't create precedent for other cases. this means uncertainty in the law continues. and the law varies around the country when it could have been settled. this is why as president reagan said before justice kennedy was confirmed, and i quote, every day that passes with the supreme court below full strength impairs the people's business in that crucially important body end quote. supreme court justice themselves including scalia and renquist have noted the dangers of an evenly divided court.

justice scalia decided not to recuse himself in 2004 saying if he did quote the court proceeds with eight justices raising the possibility that by reason of a tie vote it will find itself unable to resolve the significant legal issue presented by the case end quote. that should be sobering. scalia quoted the court's recuseal policy signed by six republican appointees stating that quote even one unnecessary recuseal impairs the functioning of the court. we have gone through a lot of tie votes. we have those. when you go through them you see the impact of a 4-4 divided court. let me give you just one example. i picked it because it involves the ninth circuit.

in 2008, the ninth circuit decided a case called the united states versus florisand the question was whether a person born abroad at an an unwed u.s. citizen was a citizen of the united states. the law differed depending on whether the citizen parent was the mother or the father. here is how the ninth described the issue quote if a united states citizen father had a child out of wedlock abroad with a non-united states citizen mother the father must have resided in the united states for five years after his 14th birthday to confer citizenship on its child. but a united states citizen mother had to reside in the united states for a continuous period of only one year prior to

the child's birth to pass on citizenship. it is this difference that florez claims makes anacl classification on the base of gender and age end quote. the ninth concluded this treatment was permissable under it constitution. the supreme court accepted the review in the case but in 2010 it deadlocked 4-4 because justice kagen was recused. that left the ninth's decision in place in california, arizona, and other states in the ninth but did not set a nationwide precedent. five years later in 2015, the

second circuit came out the opposite way. here is what the second circuit found it is argued this statutory theme violates the fifth amendme fifth amendment guarantee of equal protection and onewed fathers should receive the benefits unwed mothers receive. we agree and believe our client derived citizenship at birth through his father. a tie vote can have a real significance. here is the bottom line. in the situation presented by this case today, children in one circu circuit may not be citizens but in another circuit they would

be. that is not the fault of the child but how the law treats the parents of different genders and it makes no sense when the issue could have been resolved in 2010. let me conclude by saying the path republicans have put us on goes against more than a century of history. it is going to impair the functioning of the supreme court. and no doubt members are going to point that out. i believe that it is going to have more importantly real impact on people and real businesses in real cases both this year. we all know the other side of aisle has been trying for years to deny this president the right of appointment whether it be for ambassadors, his cabinet, or other top level staff appointments. but this is really something different.

so i am appealing to the better angelz of your nature. when there is nominee, do as we have done in the past. give the nominee careful consideration. meet the with nominee. ask the nominee questions. hold a hearing. and then hold a vote. both here and on the floor. vote no if you want but let's have the fair process that is our tradition. that is our job and we should do it. >> thank you, senator fienstein. just to fill in on history in 1969-1970 the court had 452 days of vacancy and in 1945 justice jackson took a one-year leave of absence to serve as chief prosecutor at the war crimes trial. the sky didn't fall and justice

aleto said quote unquote the court would be able to deal with only eight members. senator sessions. >> thank you, mr. chairman, and your leadership. i would say to colleagues even the new republican colleagues. there is a history here and the democrats don't have the principle history. all of us have dirty hands and no one is perfect in how we handled judicial conformations. i remember when clinton was president a nominee came up in california, trent lock filled a cloture on the nomination to move it forward, and i voted for cloture. and that is the way -- because we didn't believe in filibuster. it was only after president bush won and the republicans have a slim majority in the senate that the democrats held those nominees system .

he nominated 11 and two were renominations president clinton put up that were democrats and confirmed those two quickly and then everybody else was blocked. it went what? two or three years? when why got the majority back it was filibustered and he went on and on and on until finally the american people got frustrated with it. they wanted judges who would follow the law. good judges they could trust and believe these were. senator graham and others and the gang of 14 wasn't it? they cut this deal and said well, okay, we will not filibuster anymore except in extraordinary circumstances. we can vote no but not filibuster except in extreme

cases. i said i will adopt that. i didn't previously believe in filibuster but i said i will only use it in a restrained way where i feel it is important. i tried to adhere to that and i think republicans have. we get back in the majority and they are unhappy the republican majority was not willing to fill judges for the washington, d.c. circuit that had no need whatsoever. they had the lowest case load by far in any court in america and we said we will not affirm them. senator instagram -- graham blocked one from president bush. we had it sent to the ninth circumstance because they had a shortage. now they say you cannot filibuster. all of us are less than perfe

perfectly consistent. first and foremost the republicans have been principle and responsible in handling nominees than the democrats colleagues. they have not hesitated to change any rule or principle to advance the immediate agenda they have. now, somebody i just saw a poll in the "wall street journal" and 62% of people say the democrats would do the same thing we are doing in this circumstance. late in the campaign year, no nominee having been put forward to this date, and they say the democrats wouldn't move the nominees either. well of course that is correct. if you took a poll of all senators and they would tell you the truth it would be hundred percent in the senate. ...

the justices are upset. so i am fully aware ofmy colleague is going to make a political.this is not an unreasonable position. they have to go back to 1888 for somebody under the same circumstances was confirmed late in the session. mr. chairman, you know these rules, the history of this. senator hatch knows the rules. he has chaired this committee many years. i am totally convinced that this is what the democrats would do if they were in the situation. this is what you would expect the senate to do. that the american people have a voice and who will replace justice scalia next year. >> thank you, mr. chairman. i would like to thank you for having his remarks,

allowing these remarks. i want to thank the ranking member from vermont and associate myself with his and senator feinstein's outstanding presentation. i appreciate also the chairman moving forward with nominees as well as two bills before us. was that i care deeply about and it's a pleasure to work with you on these important pieces of legislation. i appreciate the partnership on those efforts. i have to say, the work of this committee and this congress will be shamefully incomplete if this committee refuses to do that most important job of weighing the supreme court nomination. there were nomination. there were given a job to do the constitution of the united states, a job the american people want us to do, and the chairman of this committee is saying for the next year the judiciary committee will not do its job.

our republican colleagues claim this is not about politics of the fact that they don't like this president. the american people ought to have a say in deciding who will appoint the next justice. they say let the people decide. well, the people have decided. if you asked the american people they will tell you. the data is overwhelming. the cnn poll last week found 58 percent of americans want to see the president nominates someone to the court this year and have the personality hearing. just yesterday "wall street journal" largely liberal journal on the 55 percent of registered voters disapprove the republican decision to block a court nominee, sight unseen. "washington post" abc poll 63% say the senate should hold hearings. and these numbers hold steady in red

states, blue states comparable states. the tpp poll found clear majorities in iowa, arizona, missouri, north carolina all favor the filling a vacancy. i say to my colleagues, yes, the people have decided kind they are saying to the republican majority, do your job. the american people are speaking loud and clear and saying to the republicans just that, that we have a constitutional responsibility and it is up to this committed to do the job. it's a shame. even the chairman, man of integrity, respect him. but the chairman admitted this was not the consensus view. last week the chairman

indicated that are members i would like to see us hold hearings. i suspect that is still the case. as any chairman ought come i went toi went to the members of my committee who all agree with me for different reasons. some had reluctance, but all signed letter declaring there would be no hearings. so bottom line, some had reluctance. add a great deal of respect. i also believe there are some in this room who want to debate. senator tillis said he likes a good scrap. after the president makes the nomination.

we have had in the past. >> let's not forget the last four justices who were nominated gum bipartisan support to get on this court. it is not despite the divisions we have. they are able to have serious, serious hearings often with bipartisan way. i want to have one more thing. we just noticed for hearing this committee the debate on the constitutional amendment requiring a budget i am happy to have it. i can ignore that this proposed hearing is a convenient political cover for republicans backtracking out the promise to do aa budget. i'm happy to have a debate, but i must say comeau before

we start trying to edit the constitution don't you think we ought to follow it? this committee comeau one of the original 11 standing committees and the senate holds a profound and story place in the history of the senate. it has resisted the territorial claims, the wants and winds of centimeters, even presence of the same party. the waves of politics and pressure or broken against the wall. the senate judiciary committee time and time again always an ignoble fashion but nonetheless this committee and the senators in this room have a special obligation to consider how nice it. i once since this committee began holding hearings on supreme court nominees century ago has the committee refused to report nominates of the floor for consideration of all 100 senators. this knocks it back and

forth. they are on both sides. let me repeat, not once since this committee began holding hearings on supreme court nominees century ago has the committee refused to report a nominee to the floor for consideration of all 100 sentence. i know theanother distinguished chairman from iowa holds the same reverence that i do for the reputation of this against committee. and so i ask is you walk in lockstep with the majority leader and republican presidential candidates to the detriment of this committee constitutional duty that we as senators offer. >> there was a reference.

manipulated depending on who is asking the question. they're supposed to make decisions based on what is right. i think that the people on the other side of the aisle right now while paula 61 percent of americans want to consider immigration lawyer out to be debated. the other side is not letting that affect immigration politics. >> i can tell you one person hillary clinton. she was 2121 points ahead of bernie in michigan lost. the moral high ground is a shaky place to be.

i won't go there. i will say if you live long enough it is fascinating. people who i think. i like you all very much. we are headed to changing the rules in a permanent fashion. filibustered and mass. one of the gang of 1414 the said let's not go down that road. only three of us are left and we found a way to confirm most. halfthey had the crap beat out of me at home. when i told people i thought consequences can win elections and we don't want

to change the 60 vote rule knownobody wanted to here that until we lost. and the very same people and beating the crap out of me know. i would work with the other side. here is what is going to happen. just in case we lose hillary clinton will present. unless bernie keeps doing well something else happens i don't know about. i'm telling everyone she will pick someone more liberal. goinggoing to vote for that person if i think they are qualified.

the president deserves the right to pick judges. why not feel comfortable doing this? the current vice president in 1992 argued for we are doing, the sitting president filibustered to republican supreme court justices. i said is this the same guy the filibuster? the last year of the lame-duck president. 's desk is not to confirm or take up a selection of president obama.

if the vacancy occurs guess what we use their words. there is a republican president and a vacancy occurs in the last year the 1st term he can say lindsey graham said that the next president, whoever it might be, make that nomination and you can use my words against me. in the last year at least of the lame-duck a year term pilot say will be a four-year term you will not see the vacancy of the supreme court based on what we are doing here today. when you change the rules about appellate judges and district court judges to get your way i thought it was an abuse of battle. you have made the caucuses and republican and democratic caucuses no not have to reach across the

aisle to get input from us so we could input from you. you're going to take the most hard as people we can find in barrel somebody in the conference to vote against that person. most liberal members of the caucus because you don't need to have to reach across the. over time the judiciary is going to be more ideologically driven is the process the senate now is not require you. i will fight for think they are truly in the job. so, this is where we find ourselves. i'm son but the fact of the senate is going down the road we have gone.

if we lose this election much is the same. if it's hillary clinton or bernie sanders send over a qualified nominee. i think that's what the constitution envisioned. the samesenate is always done what it thought was best. but the time we are and what is best seems to be by politics with judges that you started a new game. there will come a day we have a republican or democratic president and they will change the rules for the spirit court and will get frustrated. it is just a matter of time before the senate becomes the house when it comes to

judges command i really hate that. >> let me ask all the members my said we probably ought to stop at 1140 to vote. and if there is a desire to do what is on the agenda why keep that in mind. >> thank you very much. i have served on this committee for 18 years. the senate judiciary committee is one of the major committees of the senate and it has played all continue to play an important role in the history of our country. country. they are now faced with an historic decision, and i hope they get it right. i was at my friend acknowledging the observation mile include

some graham. say that if we make a mistake today and we make it again in the future does not give me any comfortable. if there is one thing that we pay a lot of money for on both sides of the political equation, is the disappointment and anger people feel about us that congress. maybe we do two points better as democrats but i don't take any comfort in that. the question is we will to either confirm those suspicions but changed. and we have a chance right here and now. let me say at the outset, my neighbor in iowa has been my fellow traveler for over 30 years.

we spent more time on airplanes together and at airports than most other members have come to know one another under those circumstances. difficult to work with one another on a lot of issues. we were working on important issues together. i am hopeful we can produce something bipartisan again incorporation. i also think that brings us together is really kind of this feeling that there is a minister and to turn things, even if we disagree we can be respectful another and try to find common ground. i think that is one of the issues in this debate about the filling of the vacancy in the supreme court. i think there is just a basic feeling of fairness where we live that flat and fertile part of america

where you can see a long way in any direction is just a feeling of fairness to your neighbors, fairness to those who watch her friends. that should dictate what we try to achieve. i'll question of the end of the day it will still be 54 republicans and 46 democrats voting on a nominee sympathizers and if the nominee is suspect are controversial that may not be in. for the 1st time in the history of our country the senate judiciary committee will not offer hearing.

and then statement made by one of my friends of the committee warning people who are being asked to consider being aa nominee, be prepared. you will be treated like a piñata. we know what that is about. toby this thing to a pulp. i hate to think this process is being likened to a piñata contest. he is trying to protect his

potential nominee. of course ask the important questions. the severe 1st time in the history of the united states and the city -- senate will deny hearing that is hard to explain. we can argue about polls. even among republicans is 46 in favor of a hearing they

get the basic fairness of the question. their exists for this committee the creation of the chairman's staff away website i would like to read from the website of our committee when a vacancy occurs nominate aa person to fill a vacancy. the nomination is referred to the u.s. senate where the senate judiciary committee holds a hearing for the nominee provides testimony in response to questions referring for consideration. this is our website.

this is a practice of this committee. and yet the senators on this committee areand direct contradiction of what we have announced to be our policy. mr. chairman, i know this is unusual, but i would like to make a motion. ask unanimous consent very briefly and directly assess the sense of the senate judiciary committee then redirected from the website comeau what a vacancy occurs the president was given the authority under article two the nomination is referred to the u.s. senate for the senate judiciary committee holds a hearing for the nominee provides testimony in response to questions from members of the panel. traditionally the committee refers the nomination to the full senate for consideration.

i ask unanimous consent that this is our stated policy. >> i would like the objection noted for the record. >> mr. chairman. >> if you did not yield the floor. >> i willi will conclude quickly. >> it is time to change your website. >> i yield the floor. >> thank you, mr. chairman. i can't help but think, flip-flops for an olympic sport there might be some gold medals awarded. it is really breathtaking. i do believe the debate we're having here today is an important one and we should welcome it. this is important to have

this debate in public and visible to the american people because the question is simple should the senate, the majority of his members were elected as a check of a president with little regard for congress or the restraints placed upon his office in from the supreme court nominee of the president in the waning months of his office when that nominee would like they change the ideological balance of the supreme court of the united states for decades. justice scalia served for 30 years. but clearly the stakes are high and that is why we decided the american people should have their voice heard. the senate has clear constitutional authority to demand this, and my republican colleagues and i do intend to do the job for elected to do on the people's behalf.

it is fair to say our friends across the aisle don't like this idea. but they are feigning a lot of outrage. we know they would do exactly the same the shoe on the other foot. we know that because they have told us. we talked about one now vice president biden said years ago. you don't have to go back that far to find the comments from the senior senator from new york who said 18 months before president george w. bush left office that i will recommend to my colleagues we should not confirm supreme court justice except in extraordinary circumstances. we should reverse the presumption and have a presumption against confirmation and then there is senator reed, the former majority leader how the

minority stated this, the duties of the senate are set forth in the constitution. nowhere in that document doesn't say the senate has a duty to give presidential appointees about. ". while i find myself disagreeing often he is absolutely correct. there is no duty. the pres. can make a nomination and and the senate can grant or withhold consent. and then it was noted that the president himself when he was the united states senator filibustered then justice samuel alito. the facts are, democratic colleagues revocable book and simple justice requires that they abide by. her friends claim people should choose who makes the

selection. that is the tradition. but more to the point that is a rich criticism. where was the precedent for turning supreme court nominations in the scorched-earth political battles as they did with eminently qualified nominees what was the precedent for that? there was none. and where was the precedent for the serial filibusters of appellate judges in the bush administration that have already been commented on? there is no precedent comeau was no precedent for that. we rewrote the rulebook. and where was the president last congress and democrats change the senate rules by breaking the rules, something we call the

nuclear option around here to deprive the republicans of the same judicial filibuster the democrats revised and employed with abandon in order to do what, to pack the district of columbia court of appeals. the 2nd most important court in the nation from which many ultimate supreme court justices are nominated there was no precedent for the democrats did. friends of clearly established new rules for republican presidents and the time and time again devise new schemes when they were in control. well, every action has a reaction. that is physics. and in this case it is simple justice. they have made the bed, so let's dispense with the outrage.

they can choose to extend eight years of anemic economic growth national weakness and disdain for the constitution that made our country great. they can choose a different direction for the better. i hope they do, but the choice is theirs. the supreme court will have a central role in determining path we take and the people should have a voice in a decision. thank you, mr. chairman. >> senator. >> thank you very much. i'm just going to step back a little on this. i thought many times about what i would do if we were in charge of the senate and we had a republican president and i think as a lawyer and talked my law professors, i would feel we have an obligation and that is what i would do because

when you look at that plain language as we all know the president shall nominate someone, the senate shall advise and consent and put together a form of law professors about a week or so ago and one of them from the university of columbia law school's and the framers did not contemplate, the framers did not contemplate the use of the senate's advise and consent powers solely around the clock on presidential appointment. as alexander hamilton speculated rejection of a nominee could only be made to make place for another nomination by the president. and i understand people might not vote for whoever the president nominates. it has been my view he has put up qualified people, but the constitution and its language did not anticipate how we would sit there and wait.

and in fact when you look at the history as well as we know in the last hundred 35 years the president has been refused to vote for an open seat. the senate has confirmed more than a dozen supreme court justices in presidential election years including five, you have to go back to the civil war to find a time when the senate did not do its job in the senate did not move on nominee for over a year through the depression, worlddepression, world war i, world war ii, the vietnam war, times are great tumbled , gray civil war, civil rights protest, you have to go back a long time. and so that is why i concluded if i were in your shoes i would have allowed this hearing to go through. the other piece of it that goes beyond the things i would most .2, the wording

of the constitution which is always important, the fact that we have history as an argument that i think is drawn in favor of allowing a hearing to go forward, but we also have how we function as a senate command i havei have been proud of the way our judiciary committee has handled nominees. people go back and forth about how many of gotten done, but the nominees are put forward have gotten a fair hearing. i think back to the two supreme court nominations. we had republican senators who took part in that, not that many of them voted. i remember lindsey graham's line. this is not the nominee i would have put up that way this person is qualified. and i remember the hearings as well people have strong

views on either side of the process worked. we have a process, hearing. the nominee went to the floor. the process we could be proud of. you look at the existing justices, longest in any of them went from the beginning of being nominated to the end of the confirmation 99 days,, clarence thomas. and so you have a history of those on the court now, the history of our country, the senate's role is to be funding the court, not to dictate the decisions but to fund the court and to advise and consent on the president's nominees. they have to do our job. and so it was a shock when the justice died, many of my friends are friends of his

even though they did not necessarily have the same view, but it happened. the question is how we respond. i say,. i say, do our job and follow the law and follow the constitution and the history that backs it up. >> i apologize. i have a prior responsibility. i would like my remarks entered into the record. >> they will be. >> thank you for holding this important discussion. i think it is really instructive and somewhat ironic to here all of these arguments from the left that the constitution requires, demands a hearing and about and a certain timeframe. most folks, many are clearly

making that argument. i think it is sort of ironic given that we are debating a vacancy created by justice scalia's death because he thought is 1st and foremost read the words. don't just make it up as you go along. don't use these big tools to get to whatever and you want. and it is instructive because the left wants a new supreme court justice who is going to not read the words and will make it up as they go along and get to a preordained stop point however they can get there. but again words matter and the constitution and the other relevant words, in this case the senate rules are clear and do not require

hearing or action on any particular timeframe. as you know, the constitution says simply an article to section two cause to for the presidential nomination by and with the advice and consent of the senate shall appoint ambassadors, judges of the supreme court and all other offices whose appointments are not here and otherwise provided for. that is what it says pure and simple. does not talk about any timeframe, does not talk about any required action. and the other text which governs of the senate rules. the constitution makes it clear the senate can establish rules to follow within the bounds of the constitution.

in the senate rules, the onlyrules, the only thing they have to say about the timing of action is one of the won't occur, it shall not be put on the same thing was thefamous the nomination is received on the day on which it may be reported by committee and less by unanimous consent. and then there's 31.6 which is very relevant instructive nominations are confirmed are rejected during the session i wish they are made , shall not be acted upon in any succeeding session. no hearing or action is required during the session. everyone here has voted for those roles. i don't know why folks taking it contrary view in the minority did not change

that rule, do not vote no to the role or not proposing a change several now. everyone voted for the role. these arguments somehow the constitution requires us to act in a certain way or a certain timeframe just isn't true. and honor of justice scalia we need to read the words 1st and foremost and it is instructive because that is really what this debate is all about. they can have a new justice or one who helps make it up as he or she goes along. legislate from the bench and try to get to a certain endpoint using whatever arguments eyes or her disposal.

and of course, as has been said clearly so many leading members on the other side have confirmed this in the past when they were in a different position. senator reed, senator schumer went a lot further back than we are now. 18 months before the end of the bush presidency, no supreme court justice should be confirmed except under extraordinary circumstances this is not an extraordinary circumstance with the election coming up. i defer to the people. and so the question is,is, what is the right thing to do moving forward? very comfortable with putting them in charge.

that is certainly what my constituents want in louisiana. there crying out in frustration of not being in charge of washington regularly ignoring there wishes of this trend, legislating from the bench and making it up as they go along continuing. they want to voice in this and what a voice to be able to stop that. so i defer to the people. we have a unique opportunity to do that with this very important presidential election before us. i often think in virtually every presidential election that the most important issue in the election which gives little or no attention is supreme court appointments because that has impact for decades to come.

they have an opportunity this year where that will not be the case. where hopefully that will be front and center. have an important debate about the proper role of the supreme court, the proper way for judges to make the decisions, to read and apply the law as written and certainly my constituents in louisiana want that. they want to have a leading voice, be in charge. the great majority of them strongly object to the trend of nine or really five unelected lawyers making huge decisions for society which are not in and are not mandated by the constitution. so, i appreciate your leadership. i strongly support the path forward and i vote for putting the people and

citizens in charge through the presidential election. it is important and somewhat unique. >> senator lee has the statement. >> thank you, mr. chairman. i would ask if he could stay. >> you can certainly speak. do i have to stay warm? >> we will give you unanimous consent to speak even if he goes. >> i do havei do have to go. >> i would like to address a couple things you said, but you can hear them in the record or something like that. this idea of nine unelected justices making law from the bench is what we have seen with the roberts court. this is one of the most

activist courts we have had. my goodness, how many times have i spoken to this, and when we have these sort of mayor hearing, my 5th day in the senate and this is an activist court. and you talk about the irony justice scalia, we had 100 votes on the voting rights act, unanimous vote by this united states senate, and what justice scalia said, that senators voted for because it was named the voting rights act. that? >> a half an hour of argument and ignored the

hundreds of hours of hearings. >> this is insulting. to here that. it is just insulting. now, let me say aa couple of things about some of the stuff i have been hearing. senator biden, chairman biden, when he spoke, does anyone here know, well, it would be the chairman, do you know when he spoke? somebody designed to gain the system. we are talking here about confirming someone to replace a justice who has

died. think about how different that is everybody. when chuck schumer says an extra nurse situation, he is talking about someone dying. scientists tell us they're to math month left. and justice scalia minded not agree with him. i thought he was a very witty, funny guy. that is a high compliment coming from me. i value that highly. no one dies to gain the system. what biden was talking about is a justice, as soon as the

supreme court session ends with an resigning in order to gain the system. as far as senator obama going to filibuster, that is the 60 vote threshold. >> you can listen to it as i go.

it is, justice thomas was confirmed 52 to 42. a little bit irritating. i think the chair for his indulgence in all my colleagues. >> i seem to be the last person sitting or standing. ask permission to include my remarks in the record. >> without objection so ordered.

[inaudible conversations] >> up next, the head of nasa testifies about his agencies 2017 budget request. after that discussion on the use of executive power. >> c-span washington journal live every day with news and policy issues that impact you. executive director at the foundation for defense of democracy will join us to discuss the impact of a ran testing of ballistic missiles. policy director american core financial reform on how wall street reform is being discussed in later tom defrank cover the reagan administration.

washington journal friday.

>> the committee will come to order. welcome to the subcommittee hearing. you are no stranger to the committee. last year congress provided nasa 19.3 billion in the 2016 omnibus that maintained a balanced space program ensuring the nasa's priorities are forward. we hope at that time that this administration would leverage the solid financial foundation we provided to move forward on all of nasa's exploration goals. i think that hopefully short-lived. the budget nasa's presented claims to include a total level of funding from

19 billion. we have to look at this closely. this is achieved through a combination of discretionary spending. to mask the fact that 700 $63 million and requested funding is offset by proposed tax increases such as a new $10 tax on each barrel of imported oil by congress has not yet considered nor do i expect that we ever well consider. nasa's request is only 18.26 billion. these cats what he wrote ongoing science missions,

jeopardize corporations and delay exploration launches. i am sure it is no coincidence that most of those proposed cuts target programs that are supported by this committee and other members of congress in both chambers and on both sides of the aisle. the simple fact is this, the administration prioritized funding elsewhere and cannot find enough discretionary funding to make nasa whole. what do you nasa failed to propose a truthful budget. subcommittee must set aside the mandatory spending gimmicks.

this proposed budget represents diary rejections that would lead to a $1 billion reduction. those proposed cuts could have been near-term and long-term if not corrected and drive of development cost. i look forward, particularly with the concern for the lack of support to go beyond low earth orbit. the space launch system is proposed to be cut by 770 billion and his crew vehicle will become by 217. in addition, the proposed funding and development path ensures our next exploration vehicles would not even be

passes far from ambitious target of launching in 2023. surprisingly nasa's not propose a single dollar the development of upper stage engine that is absolutely necessary. the request would not allow nasa to stay current on its own production launching schedule. you have traveled around the country touting nasa strong support when in reality this budget will effectively delay any advancement in a nasa led human mission to mars. ifif this week budget plan is what the administration call strong support of i hate to imagine what the request will look like if it was only a professed marginal commitment. other missions will feel the

detrimental consequences. planetary science missions would be totally reliant on imaginary funding to continue operations. under this year's proposed budget request the new mission which at its mission extended who essentially have to depend on a tax increase that has virtually no chance of being enacted. given the recent high-profile announcements will become greatly dependent on budgetary gimmicks. both the inspector general and the governmentgovernment accountability office have cited the risks of funding uncertainty has a tough crya tough cry concern in this budget has borne out those

concerns further. this budget creates more problems than it solves. i find it disturbing that the true priorities are not better reflected in on this budget and look forward to hearing your views and ask you to work with our subcommittee members to address are many concerns. before i yield i want to recognize that today is the last scheduled budget hearing which could be the senator's final hearing as a member of the subcommittee which is helps to lead since 2,005. you have served as a vigilant stewarda vigilant steward of our tax dollars. you have consistently challenge nasa to be better. nasa is better served

america's drive for exploring space. these them in the life of the hubble space telescope, returning the vehicle flight after the columbia accident, just some of the very important activities you have fought so hard to achieve and did over the years. your a true and valued partner and it has been a pleasure and honor to work alongside you. alec forward to last year of writing the subcommittee's appropriation both you and it is my hope we can get nasa's budget right again. >> thank you very much. i appreciate that warm introduction. yes, this is my final scheduled hearing that now what is called the cts committee, and inspirational agency, the national space

agency. i came to this committee in 1987. i was one of the 1st women to serve. there are so many on both sides of the aisle to continue to serve. when i came to this committee va had an independent agency. i loved america's veterans. ii wanted to be on a committee that funded because i come from the gritty streets of baltimore and knew what a powerhouse of can be for economic development and job opportunity. and then there were those independent agencies. they did not know a lot about them. i knew we had the space telescope institute.

of course in my campaigns i come to hear about something called gotthard. well, from early on until now this fabulous place for the study of science. from va had to cjs we have been here. i am proud of the men and women that have worked here. and though i knew little about the space program i want to get started. when i came to this committee a republican from utah comeau what a wonderful human being. gracious in his welcoming and patient in his tutorial. ..

there were a lot of people on that committee that they saw rising stars that were a lot more glamorous. they were on the editorial boards and they run away to being president but we were on her way to being very solid senators and from you we have had such a superb relationship. i appreciate again the gracious way that you have governed and to get to know your wife and to

get to know how to alabama the only community in america but has its own foreign-policy great if you have ever been to the dash you know it but because we have worked together happening to the zone of mutual respect we have been able to do mutual accomplishments. i've been proud of this committee. i've been proud of the way we have helped transform the fbi, modernize the weather service focusing on violence against women in making sure we have more cops on the beat and that they have the right equipment and the phot fraud from 5-dollar meatballs to 15-dollar bagels to reducing the patents backlog. we certainly have done a lot. we have seen great accomplishments and great challenges. when i came to the committee it was days away from the terrible terrible challenger accident to get the same time weather was the challenger of whether was the columbia weather it's the hubble telescope that needed the most expensive contact lens in american history we were able to

solve this problem because we work together. we have seen great discoveries that i will tell you one of the greatest discoveries was getting to know the american space program from the astronauts gear to go where no one has ever gone before two men who delivered the greatest discovery in science to all those who work in space science and aeronautics i'm particularly proud of them. i'm grateful for what maryland has been from goddard to the space telescope, the greatest discovery not only to what is out there but the wonderful men and women who work right here. i look forward to hearing your appropriation and your last appearance and all i can say is may the force be with us. >> thank you senator mikulski. administrator bolten your written testimony will be made part of the record in its entirety. you proceed as you wish.

>> thank you very much mr. chairman members of the committee i am pleased to be here today to discuss with you president obama's $19 billion fy2017 budget request for nasa. it's been my honor to serve as administrator throughout the obama administration and as we submit what is likely my final budget i am proud of the many things this agency has accomplished on behalf of the american people with the resources the president and the congress have committed to us over the past seven years paid i also wish to personally join you mr. chairman in recognizing senator mikulski for her leadership throughout her service in congress and their dedication to a robust balance and bipartisan nasa program. senator mikulski is a told you earlier you will be sorely missed. together we have enabled our nation to continue leading the world in space exploration and scientific discovery. last week american astronaut scott kelly returned home from

the international space station after 12 months working off the earth for the earth. his year in space will pay scientific and medical dividends for years to come. helping pave the way for future astronauts to travel to mars and beyond. commander kelly significantly advanced our journey to mars and i trust that you will all join me in saluting his service to our nation. nasa is closer to sending american astronauts to mars than at any point in our history and this budget will keep us moving forward. this supported this committee and congress is essential to this journey. the international space station is a cornerstone of our expiration strategy. thanks to the determination and ingenuity of american industry we have returns spaced a shank cargo resupply launches to u.s. soil in source jobs and help establish a new private market in orbit. american companies are carrying supplies to our astronauts on the international space station

from the united states with orbital atk set to launch later this month and spacex targeting a launch in early april from the kennedy space center. in july or bartolo returned to his home to conduct a return to flight mission from the wallop's flight facility. thanks to the administrations decision to invest in americans industry into this committee's full funding in lester's budget owing and spacex continued to make rate progress toward certification in 2007 to safely transport our astronauts to the space station from u.s. soil ending our soul reliance on russia once and for all. nasa is making significant progress on the journey to mars developing our newest most powerful rocket ever built the space launch system and the o'brien crew vehicle is part of the sustainable and affordable deep-space exploration system. this budget supports agencies baseline commitment for a test

flight of the orion in 2018 and the crew flight by 2018. with the additional funding provided by congress teams are working toward an earlier launch date for the first crew mission. the budget also increases funding for habitation systems development a key component of our steppingstone strategy to send humans to mars to the president's budget marks a science program at dozens of operating missions studying our solar system, the universe and the most important planet in our solar system, earth. this coming july 4 independence day the juno spacecraft will orbit jupiter while they spacecraft will execute his dramatic grand finale orbits of saturn. a near asteroid to collect a sample to return to earth in 2023. in 2017 and 2018 nasa will launch seven exciting science missions including the james webb space telescope.

before we send humans to mars robots are paving the way with mars insight now targeted for launch in 2018 another mars rover set to launch in 2020 joining the curiosity in the opportunity rovers the red planet and work is underway to sign the next mars mission for 2022. we we are formulating missions to explore jupiter's moons europa and accelerating the building of -- as part of our sustainable architecture to continue our 40 year record of high-quality measurements of earth's land cover. nasa technology drives exploration. with this request nasa will continue to conduct rapid development and incorporation of transformative space technologies to enable future human missions increased capabilities of other u.s. agencies and address aerospace industry challenge to space technology investments will

ensure we continue to lead the world in exploration and scientific discovery. nasa's aeronautics program advances u.s. global leadership by developing and transferring key enabling technologies to aviation safer more efficient and more environmentally friendly. with this request nasa aeronautics is ready to take the next step to develop and apply demonstrators in partnership with industry and academia including ultraefficient transporter experimental aircraft and the world's first mobile supersonic flight demonstrator. mr. chairman we appreciate the support we have received on this committee during my tenure and i look forward to your questions. >> thank you very much. administrators up on the discretionary budget request

proposes that i mentioned in my opening statement to cut sls by $770 million and orion by 217 million, that's nearly $1 billion. nasa proposes to cut i believe are excellent necessary under constrained budget profile and progress toward a crude launch as early as 2021. without these funds i believe nasa's ability to reach far beyond earth's orbit is at risk of delay and cost escalation. the discretionary amounts being requested by the administrations and 17 do not meet the agreed upon funding levels in the agency's decision documents. asking for less invites delay increased costs and inefficient program management i believe. a couple of questions to you. why is nasa not even asking for

the discretionary funding needed to achieve the results set by the agency in their planning agreements and secondly how can you justify if you can the financial risk nasa has taken with its exploration program? >> mr. chairman. >> i know you don't make all of those decisions. >> actually nasa in my estimation or from where he said we are requesting a 19 billion-dollar budget for the coming fiscal year and i know that may sound trivial but i leave it up to the budget two years and folks to determine where all the money comes from. i know my agreement with the director of omb and subsequently the present of the estate is that we are requesting $19 billion for the nasa program >> i want to get into another aspect. there has been a lot of debate over whether to limit the number were to outright ban the russian

rd 180 engines used for rocket launches to the u.s.. there are some who threaten to enact a total ban which if enacted would seriously limit capabilities for national defense. what is rarely discussed is the impact such drastic measures could have a nasa. contractors commercial crew and cargo use atlas fiber-optic as you know the rd 180 engines are resupply to the international space station. science missions are also currently being designed with the intent of using the reliable capabilities of the u. a. rockets. a couple of questions here. if the comprehensive engine spam on purchases have been designated as national security scientific missions were successfully implemented what would be the impact of nasa and secondly how confident are you

that the number of rd 180 engines currently available around nasa will continue with his planned flights? >> mr. chairman i will answer the second question first and let me say this. i am in full agreement with the testimony secretary james has given on numerous occasions. we commiserate with each other on a regular basis. she and i both agree that while they want to rid ourselves of our dependence on a russian rocket engine that it should be done in an orderly fashion. >> we all want to get rid of them but we have to be measured in how we do it create. >> exactly and i agree with that exactly. that's the plea that we have made. we are counting on you well a big able to get the number of engines that will satisfy the requirements for nasa to fly the dream chaser when it comes around in 2019 but mostly to fly

the boeing cft star liner. i think american industry has risen to the occasion. when you look at origin and jeff bezos and what is he is doing with his team to develop a new launching system. i think you have heard far too much that we don't gain by developing a rocket without a full system which is integrated so we support what secretary james has said which is we have have --. >> did erector of national intelligence. >> that is correct and secretary james in her new capacity as executive agent for space so she speaks for all of us in one regard although she doesn't speak for civil states that she and i are in lockstep. >> in the area of getting into non-discretionary funding nearly

5% of nasa's budget proposal is comprised of funding -- which are contingent upon tax increases and other legislation that is yet or maybe will never be enacted by congress. with such a reliance on non-discretionary spending to accomplish these goals nasa would face difficult finding traces if the agency were only to receive the 18.26 billion and discretionary dollars that is requested. significant impacts i believe would follow nasa's vehicles that enabled exploration of planets traveling to mars. other measures would likely be cut -- cut back or not started at all. my question is a couple of them. what specific legislative language you are sharing with the operating committee that a connector would provide nasa with 773 billion dollars in

funding? >> mr. chairman that's a tough question. it's not a tough question at all periods out of my league area my hope is that we will be able to continue to work with this committee and the committee in the house as we have always tried to do to come up with a way that we reach an appropriate amount of money for nasa's budget and as they said again my submission to this committee and the preparations committee in the house is for $19 billion. >> i think we have got a lot of work to do in the committee but with senator mikulski's experience maybe we can work through it but it's going to be difficult. senator mikulski. >> thank you very much mr. chairman. yes i too have concern about the mandatory funding because it sounds like it's mandatory. for the folks back home who

don't understand washington state and the way words mean a domain in washington. they have a different meaning. mandatory means we get the revenue and that's going to be a stretch in the short time allocated so i believe the hallmark of this committee has been bipartisan, working together and also a family space program assuring human space exploration, space science, aeronautics and a reliable space transportation system. i think week can be able to get through it. mr. director i know this too is your last time before the subcommittee. i want to thank you for your service as a marine corps officer as an astronaut and the

leadership you have helped provide. you have been in the line of fire on many occasions now. i want to get to a question about space science in the james webb telescope. it's got to go right. this year we were able to fix the hubble and it performed in a stunning way. the hubble telescope but only brought us great science have brought us great prestige and it also was an inspiration to young people. we don't have the money now to go back and fix the james webb so my question to you is number one are we on track for the james webb to go because if it makes it, and i believe they can and it must do both secured america's space and astronomy for the next 50 years. so are we managing the projects to maintain the 2018 launch to

have adequate resources to prevent -- and including the schedule reserve because of it rakes i'm not so sure we can fix it fix it. >> senator as i promised you when we met some years ago when i came before this committee or i came before you we had james webb in trouble and we were underfunded and had overestimated our public tape to deliver 2014 lodged them. the agreement we made was we would look at it and bring you what we thought were reliable numbers. we are now well on course to deliver the telescope to orbit in 2018. we have a seven and a half month pad is a bad word to use but contingency reserve in terms of time on the schedule so that means we have the funds available to get it off on time so and a simple word yes we will deliver james webb to his

position 1.5 million kilometers from earth and october of 2018. >> maybe we will go to that together. on a bread-and-butter sure i want to bring up the issue of satellite servicing. as you know this is being developed at goddard space agency. last year we provided 138000000% white servicing to support the restore mission to demonstrate the ability to reform and government science satellite which are refers to thing like a weather satellite where all they take is either a new orbit where they have drifted out or to refuel. i am concerned that we have reduced the funding% light service in fiscal 17 and we are also going to put were lighter

mandatory request. could you tell us where we are in satellite servicing because it will be important for one jobs at goddard and the second is a will really help refurbish other government satellites and refined an opportunity for lucrative and productive private sector work. those companies in maryland to build satellite say we could refurbish and save money and maintain productivity. >> i think what you and i have discussed before is a restoration that has been headed by the goddard's base flight center. it is a formulation right now and we have put $130 million toward the program. we have moved it out of the human exploration operations mission and into technology which is a place where probably

we have had to make sacrifices in technology but some of the programs we are now not able to do on time. we are well on the way to delivering satellite servicing mission. the other thing we are getting is finding synergies with aspirated read direction which is part of our journey to mars so we are finding in working with industry and academia and entrepreneurs that we are learning a lot and redeeming a lot by working on this. it's another thing that restore to has done and when you look back on the lessons learned from previous shuttle missions some people remember mission where we attempted to go and save an upper stage rocket using a probe if you will like a jousting stick to go up to the end of the rocket and bring it back to the shuttle and eventually back to earth.

as a result of the preliminary work we have been doing on satellite servicing orderable -- orbital working with it is that in maryland has developed a satellite servicing device that we think when with teamed with her story over will recover industry. c that's my whole point. its government and industry together. >> yes maam. >> thank you very much mr. chair. >> mr. chairman thank you very much for the excellent job you are doing and i especially want to complement barbara mikulski for her outstanding service on this committee and how much we are going to miss her. it won't be as much fun i can guarantee and probably not nearly as effective as it has

been that we have all worked together to try to live up to the stature and credit you have reflected on this committee. we appreciate the good work from the administrator of nasa as well. i think this is one of those situations where our committee has an opportunity to learn more about these programs under the jurisdiction of the committee that have such long lasting and far-reaching consequences. we need to get it right. we need to make sure we understand the best bets in our national interest and that we provide the funding that is needed for the important programs that come under the jurisdiction of this committee. i really don't have any

questions except to come here today to congratulate barbara and thank our distinguished witness for his service. thank you sir. >> thank you. >> senator capito. >> i too would like to add my voice of admiration and gratitude to senator mikulski. she's a wonderful champion for many things and one of which is nasa so thank you for the inspiration that you provide for us and the future in the senate. general bolten first of august to thank you for coming to west virginia state university in delivering the graduation address. it was very much appreciated. i'd discovered a nasa hero who was the recipient of the presidential medal of freedom and it was absolutely incredible. >> well thank you, thank you. i want to follow-up on one of the questions that senator

mikulski was asking on the satellite servicing capabilities some of that work is done obviously most of his done it added that some of it is done at a west virginia row bob x. technology center in west virginia as elite academic institution. you know i didn't hearing your answer there's a small cut to this program. >> no maam. that was it point that senator mikulski asked where we funding it to the level that was her quest to think is this year is 130 million in the next budget but it is fully funded. a 10 formulation right now and this center at west virginia, that's an extension of goddard and the robotics lab and the goddard spaceflight center. enables them to bring graduate

students for work in that field as part of the pirg ram. >> also i'd like to say it was honored to attend the sample return robot challenge level to which again was that to bbu. they not only achieved a victory but received $100,000 as they are going to put back into scholarships for future students and to enhance the capabilities there. you and i have talked about how do we inspire future generations and i think those challenges are very inspirational. i'm going to go way out on something i need you to educate me on. the president proposed an increase in the area of helio physics. don't ask me tell you what that is but can you give me an understanding of what the benefits of this program would the, with the university involved in this program. can you give me an understanding? i know it has weathered location so just a briefing.

>> it's the study of the sun and the big obligation to space weather something you and i never heard of probably before two years ago. smart people like some of you did but not many. it is the study of our son and is trying to help us understand what potential impact solar flares a phenomena called coronal mass ejection's which are big burst of energy from the son of what is the affect of my car indication system on all of our networks. since most things are space-based today that energy data through to the orbiting satellite could have an adverse impact so understanding the energy coming from the sun we know how to harden satellites now. think we probably think about before so it's critically important. >> i noticed in the explanation in your testimony that it involves some of the technology technology that has been developing getting closer to the

sun being able to explore in a more detailed and innovative way that's good for me to know more about the sun especially when it shining. thank you. just one last thing anyone i talked about this again. no its. no it's a passion of yours education but we are falling short in our stem education. now nasa has been working with the education resources for your space grant program. i want to ask for rededication from your position and certainly nasa's position to inspire the next generation we talk about in the low percentage of minorities in the s.t.e.m. fields. we have talked about partnership working together so anything we can do for anything you can help it that please make sure we are there in the front with you. >> center the one thing that is absolute necessary is continued emphasis from people like you who have a voice to help us understand several things.

the critical importance to s.t.e.m. education in this nation but i'm not trying to be funny or trivial but i'd leave nasa dedicates $19 billion since 2017 budget to s.t.e.m. education some people say how can that be? when we lost to ryan on december 5 last year and actually had a student experiment on it. that is something that a student normally would not get in the classroom. there was not a time they came out of the education, the formal education budget. all came out of our information but that's s.t.e.m. education. we are the only agency in the federal government i think they can say of for dollar of our expenditures contributes to s.t.e.m. education. the other area we can help us ruling urging people to take seriously the critical need to increase the numbers of women and minorities in the s.t.e.m. field so we are challenged. we think we have some answers but we don't have all the

answers. >> you can do other things with a science degree besides be the administrator at nasa so there is hope. thank you. >> thank you. >> i was like to follow up on senator capito's question about the funding for the science. the reality is i appreciate what you are saying and that's an educational opportunity but the reality is you are still cutting the office of education and the budget. so can you talk specifically about that and in a state like west virginia and a state like arkansas that really does make a difference. there are not very many dollars at all but it's really hitting involved young people that are going to be the future of nasa

as we go forward. so like i said these are -- dollars and i understand what you're saying in the other regard that comment a little bit about the importance of the office of education. this and why we are cutting back those aren't very many dollars at all especially for states like arkansas and west virginia are rural states. >> with funding in limited the way to. >> since i became the nasa administrator and it's essentially decreasing. as we have level budget that meets its decreasing so we have had to try to find innovative ways to continue to fund education in the manner that we did before one of things we have done at nasa is we consolidate inside the agency the science mission directorate a good example. rather than having every project responsible for managing its own little education program those

funds are consolidated in the office of the science mission director and the science mission it decides which projects we are going to focus on for a particular educational initiative. what we are getting is more efficient application of our funds toward education trying to do more with less. i hate saying that because we are trying to be more efficient with the fewer dollars that we have. >> i understand that budget constraints but again and i understand what you are saying inefficiency and i certainly want to happen in this case the reality is there will be less programs in the states that really are very important. there are not a lot of dollars but i think it's one of those things when you look at dollar spent versus return to society return to your program is something that is really important.

we do appreciate your hard work and appreciate the agency and all that you represent. thank you mr. chairman. >> senator mikulski. >> mr. administrator wiki gove through a lot of the line item questions but i'm concerned about america's future. i'm concerned about where the jobs are going to be where young people are going to work. are these going to be jobs that pay living wages and therefore this is why i'm a big believer in american innovation. you and i talked about what generation we are from. we have seen great jobs but the anger we see in america right now is directly tied to the loss of jobs as well as the loss of confidence in our institution. my question to you is how do you see this budget closing the innovation deficit?

what is it that we are doing. senator this question is is it a worthy goal but where is it all going to take us? nasa goddard and the space telescope is as we have three nobel prize winners dr. could be bandar dismissed telescope institute dr. amorese who just won a nobel prize. we won the nobel prizes but i'd want to in the market. i want to win the market so where do you see two things? what are we promoting and innovation and essentially what is in this budget and what is in your strategic plan to do in this administration and transfer to the next wherever that might be? transversely when the prices then we went apart and end our young people see they have a

future where we are going to continue to make something and make something of ourselves. >> if you look at the budget inside the human exploration mission there is a line item that's called habitation systems and under habitation systems are a number of lesser projects that are technology development in the patient help us be able to get humans to mars. another one of those things called next step and that's i want to say 12 individual contracts that we lead over this last year among them as a matter of fact is some work to shore up the laboratory so we are talking about advancing space promotion. i think we are actually making small incremental investments in american industry but more importantly small businesses and entrepreneurial entities that are going to keep us on the cusp of being the innovation leaders

in the world. i mentioned to you earlier and hopefully every member of the committee has a copy of our little flyer on the future of flight or what we call the aviation horizon. this is fueling the engine of innovation in the aeronautics community. the largest ounce of these items in this nation. the reason we are so excited about this in recent american industry is so excited about it is because it's returning nasa to the position where we are the leaders and aeronautics research and development american going to provide for jobs fuel the economy and keep us in front of everybody else in the world. >> thank you very much. we have to stand up to the future. thank you. >> if there are no further question questions senators may submit additional questions for the subcommittee official hearing record to the nasa administrator. we request those questions are

sent to you mr. administrator the answer within 30 days. we appreciate your appearance today and we look forward to trying to work with you on putting misappropriation together. >> thank you very much. >> thank you. [inaudible conversations] [inaudible conversations]

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>> the most important thing to me 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 the common core that's been happening so i would like to see that change rather than going to vote for either bernie sanders or hillary clinton. i'm happy with both of those choices and interested to see what their education plan turns out to be.

stack i've decided i'm voting for ted cruz for the candidacy because he is a constitutional scholar. he's eloquent and he is principled. next the conversation on the use of executive power and the constitutional role of congress. we hear from jonathan turley at george washington university law school at this event hosted by the hoover institution. >> thank you everybody. i guess we will begin. i would like to welcome everybody.

thank you very much for coming today to the hoover institution for discussion of conservatism and executive power. it seems the ideal moment to have such a conversation because we don't know if we will be here year from now. the democrats don't yet know who the nominee will be for the presence and is the party knows who will occupy the white house a year from now. so behind this veil of ignorance they can sit back and more objectively discuss how conservatives should think about executive power how conservatism relates to the idea of executive power and legislative power. i look back to where we were this time in the last presidential election cycle in 2008 and came across eight -- quote repeated from president obama march 312008 pretty set to not dance in lancaster

pennsylvania the biggest problem we are facing right now, the biggest problems we are facing right now have to do with george bush trying to bring more and more power to the executive branch and not go to congress at all and that's what i intend to reverse when i'm president of the united states of america. it may not have quite turned out that way and it might have something to do with the fact that where you stand depends on where you sit but i happened to be seated with three widely esteemed experts on constitutionalism and executive and legislative power so is my pleasure to convene this conversation with them. beginning right here at my right james seeger is a senior fellow at the hoover situation and harry s. berg professor of politics at the university of virginia and director of the program for constitutionalism and democracy. he's the author of several books on american politics and american political thought

including presidential selection very and development in his effort integer but is the popular press. 2015 he was awarded the prestigious -- seated next to ms. professor jonathan turley the shapiro chair at the george washington university law school where he teaches on a range of subjects including constitutional law. he's a nationally recognized scholar but also an active practitioner representing clients in a number of significant cases raising fundamental questions in constitutional law checks and balances that in 2011 he filed a challenge to libyan war on behalf of 10 members of congress did in 2014 he became counsel for the u.s. house of representatives and the constitutional challenge for president obama's affordable care act. the litigation was approved by the house of representatives to seek judicial review claims of separation of powers.

your bio indicates you represent workers in the famously -- air force base. finally to his right binding editor of national affairs and the ethics and public policy center. he's the author of several books most recently the great debate at member thomas p. and the birth of the right and left. his next book number described as her fractured republic, what is a due out? >> at the end of may. >> it offers a vision of powers he put it how america can overcome nostalgia and revise civil society and thrive in the 21st century. let's welcome them. apopka. >> will begin with jim and jonathan on the most open-ended questions. how should conservatives think of executive power? >> well i would like to thank

you and hoover for everything this afternoon except her hats the title of the session conservatism and the executive power because there is her least there should he know can serve as you of the power of the presidency. there should only be a constitutional view of the power of the presidency. if the views of the presidency to arrive at conservatism whatever considered stash conservatism may mean rather than a constitution if they are meant to promote or cover-up for conservative errors were the heirs of conservatives they hold no interest for me and i don't think they should hold much interest for you either. they can hold maybe a little bit of interest of this sort that interests intellectual historians who like to waste their time cataloguing such

views. these views are more people said of the point of view of conservatism really can be genuine in a campy normative for what we think. i relented this degree some conservatives should happen to have a view of the executive power command of the constitution is some of the conservatives i know prefer a medieval king with pomp and circumstance and urban roads and all of that. it might be worthwhile as an intellectual exercise but don't try to sneak it in or any other conservative view under what we mean by the u.s. constitution. it's only the law i think that counts.

fortunately i think most conservatives would agree with this because of their commitment to the constitution and because of the concept of the rule of law. they generally believe that these concepts are normative and if conservatives straight from the standard they do so from human frailty were sometimes from partisan exuberance. they find themselves slipping into the air of allowing their principles to be shaped by the politics of the moment rather than vice versa. conservatives for the most part can't crawl back from this precipice and feel a sense of shame or remorse if they take their views only on conservative ideas and they repent by going back to the constitution trying to figure out what it really means. there are agonies produce elaborate doctrine of interpretation like the unitary executive or the federalist

society certainly would step in to spend considerable money and give considerable weight agonizing over the meaning of the constitution. i would like to be able to say the same thing about progressives and their view of constitutionalism but i cannot. what we know about progressivism by own admission is the constitution is not considered normative. it leaves the constitution in its original sense. progressives take their bearings from certain higher sources. could be progress, quality the policy committee or whatever and shifting ideas about institutions if they promote these higher goals and values are welcomed without any sense of remorse so whatever -- i don't think he felt held to it as a progressive. constitutionalists have been amazed and dismayed at president

obama's expansion of executive power especially in the domestics here. he has pronounced no rogue dr. for doing so other than something like we can't wait and we have to change the things or radios relied on the conventional wisdom in washington which says the government is dysfunctional and dysfunctional means it's not progressive and therefore under this emergency of this functionality is required to step and that really there hasn't been much of a doctrine. what he has practiced on and the president has brought this idea of governing by tikrit into the light because usually was done with all sorts of explanation. it was hidden when it couldn't be justified but now it's promoted openly to the cheers of progressive partisans and probably the danger of a change in our whole constitutional

structure. but this has to be said about the progressives. and their tactical maneuvering they created one document in the 1970s that shaped a great deal of thinking not only for those on the left but influence those on the right as well and it comes from the term and become synonymous with concern about the presidency namely the imperial presidency. a book by arthur schlessinger published in 1973 and what's interesting about this book despite coming from the progressive side that it poses an impact proceed in entirely originalist away. it's amazing in some way when you look back that this party that generally is very loose about relying on the founders and the constitutional five presented this most important idea by relying almost exclusively on the version of originalism and i tried to argue by looking at the founders

constitution whatnot try to argue for much more limited role for the presence in the area of national security. interestingly when you read that book it talks all about the founders as they understand them schlessinger and his followers for foreign affairs and never mentions very much about domestic affairs except nixon's several excesses. the other part of the presidency the activist part, the roosevelt part is generally treated as fine and not causing any constitutional -- whatsoever. it was a version of originalism. as i said it turned the discussion from the left on this point very frequently into legal terms. this brings me to my final point and warning for conservatives

who are obviously today alarmed at an executive that they fear has grown way too strong and then they make the mistake of using the term imperial like everyone else, buying into the schlessinger line. the warning of conservatives and that they are falling for the disease of conflation -itis. conflation i does overlooks a distinction in the constitution and constitutional thought in favor of speaking simplistically of the stronger president. it makes the discussion about the executive one-dimensional. so by this logic it over looks the fundamental distinction which i think is decent in the constitution and deep and constitutional thought between this zone where the empire of law the area which when people understood human affairs could be governed more or less by statute applause basic ideas of

what we should mention the biggest power vested in the congress plus the president but there's another area inside constitutional thoughts which would stay in the realm of discussion. this is the realm of human affairs it can't be governed by legal moms and laws. who do recognize in a foreign country went to threaten went to bomb. i don't think this can be governed by law in the same sense as they are in domestic affairs. this distinction between the empire of laws and the empire of discretion are crucial to the constitution and constitutional understanding. the president obviously has a much greater degree of control in the realm of discretion to this is what the executive power is for many men, that will realm

of law is more clear in the congress and the resident and his veto capacity. forgetting about this distinction and adopting this conflationitis view conservatives are embracing the view of accepting a weak executive across-the-board and they're anxious for him to get obama. not only the usurpation of domestic realm or as i called the realm of law but also in the realm of discretion and the from of national security. to pounce on obama for all the things that they spoke of namely president who are overbearing and going too far but history in foreign affairs. constitutional should take a different view. in the zone of law they should be firm and restoring the rule of law. in the zone of discretion they

should pocket many of the president's claims or practices. no matter how much conservative constitutionalism might disagree with how obama is used as discretionary power in some misses as a national security, what matters from a constitutional perspective is that he used them. when -- progressives be tied to this in the future. >> before a move on arthur schlessinger, there's a new book out by a distinguished professor neal ferguson buyer fee of inner kissinger and there's an episode where early in the kissinger is hanging around the candy. schlessinger complaining for the bureaucracy that keeps getting in the way of the things that a person wants to do and to step back and allow president kennedy to move forward on what's important. but i guess he changed his mind a little bit bass and never concluded within the imperial presidency.

it's a limitation of presidential power almost exclusively in the prime of national security and foreign affairs. that's the part that stuck and to reiterate the point makes conservatives so i choose using the word imperialist and take a present down that they are going to swallow that and accept the other part. >> thanks jim. having been embarrassed by the faulty premise of the conversation conservatism concludes this conversation. if you would like to offer any thoughts. check let me say i speak of the most basic whirl of constitutional argument to the extent you disagree or you're mistaken i'm going to try to limit my errors here but i do think the question of where to draw the line with the rom of law and the realm of discussion

is another way of describing the question of presidential power and congressional power and that presents us with a great challenge of finding a balance which is what i think is as a practical matter friends of the constitution try to do to win against the system where it threatens to fall over. to my mind a the question of conservatism and executive now is the question of constitutionalism and executive now is about where to find that balance, which way is a system threatening to follow friend which wish we have push and lean against the? it should be clear to conservatives that enlightened statesmen will not always be at the helm. after eight years of seeing what pernicious effect the use of executive power can have in the hands of liberals who're dedicated to overcoming the boundaries of the constitutional system and now in the course of a presents a campaign when we

see before us the possibility of really a pernicious demagogue taking over the executive power in our system we should be most able to resist the temptation to think about executive power only in terms of how it might be used aggressively to advance our policy objectives. we might even find an opportunity to think about executive power in terms of how it might be limited effectively to advance our policy objectives. in any case out might be appropriately balanced. it seems to me that over the past several decades the powers in our system of government have fallen out of balance especially in the domestic arena where it does seem to me the executive has taken for himself an enormous amount of power that is not properly his and i don't just mean president obama. this is happened over a number of decades and it's happened thanks to the present of both parties and even more so i would say thanks to congresses of both

parties. congress has willingly ceded power to the executive over and over knowingly, intentionally both because members don't want to make hard choices or be held responsible for them and because members think a the present of their own party will be better able to transfer the policy objective than they themselves will. we see it again and again, congress ceding power to the executive and we have seen in the last two presidencies and number of incidences in which the executives just kind of objectively shamed the congress which we have had an occasion where person obama put out a statement of policy saying he agrees with what congress is trying to do. this is in 11 of the obamacare essences the limitation of individual mandate. ..

>> >> to the extent that friends of the constitution want to step in and help and work better in two is somewhat weakened the executive. so conservatives are friends of the constitution but we need to think about that balance into relatively strengthen the congress he and weakened the executive.

but while conservatives are out of power so we have come to the view that congress is better. but there is no denying some of that has happened from the actual constitutional argument looking at those circumstances thinking where it has fallen out of balance with congressional power to the conservative vision of the constitution but to call for strength of congress now with an incredibly useful argument. it has to do with the circumstances of the balanced system to work

effectively together and the way it is out of balance has a push back so to think about those past attempts to do this to rein in executive power. and with that consolidation of congressional power with their own administrative agencies. today's reformers should think of the process to play less to the president and less centralized to break it up so what is happening in washington most of the time his legislative but with

that budget process will reduce to have enormous control of the agenda. with one big budget bill. it seems the way to get back would involve breaking the process up with a stronger congress and the beaker executive. don't be afraid of think of contemporary challenges. did the absolute distinction between where the realm begins and ends. but inevitably to be pushed too far in the friends of the system have to be friends with the process to suggest we have to be more critical of executive power.

>> you verbally don't self identified which is why it is interesting is representing the u.s. house of representatives so we are interested to hear your executive power. >> i should say at the outset as an academic in the aca lawsuit all mistakes are my own. but i come to this with a different perspective. it isn't conservative verses liberal. i never have. you don't come to washington

for principles. it is hypocrisy on issues of constitutional law. but that your allies change so those principles in congress so between constitutionalist an opportunist and that the goal light things they don't want them to do. did in the sense i of a dinosaur. alien did anything that current chaos to say it

works better view within the line but that primary principle to avoid that concentration of power. even though i wrote that for obama in the first election i think he is wrong because the entire system is based on the diet -- the idea of the concentration of power is from individual lives. the flavors were very clear to protect individual rights from the concentration of power.

so what you see around you you get a better result with government when it is divided between the branches. that is very antithesis of the system. you have only two choices one is to change congress and the other is to compromise. so one of the most confusing things is when president obama at the stated the union told congress he would circumvent them he was tired that isn't anything new presidents to radicand republican than to go in that direction by what is

odd is you have the democratic members while applauding the concept of their art and obsolescence tuesday to become the government and to itself. >> and medicine and truly did believe. that the legislative branch for protection. even though every president gravitated it has tended to work badly intended not to reach the results as he

succeeds to concentrate power makes mistakes and they tend not to read the american people with them. that unilateral actions have not moved to the ideal animal. and so that this climate change congress hasn't done much and we're divided less is done the lanius muscle through a unilateral action and with substandard work the great example is a matter how you feel of the national health care the hca was not ready to be enacted under with a democrat or republican that it was ted

horrendous shape clinton couldn't go back to the senate as a result fdr has the right idea he refused to get a vote to go to war intelligence to get as many people as possible to support that. just like health care if it is adopted that massive insignificant it isn't enough for the president to say i can muscled through order to do alone. so interims of how conservative to respond as a constitutionalist.

perhaps we should try that 40th. he may have got and lifted up. is to be a better quality product but the siren's call of every party that comes into power is to go alone. and other confusing moment that i experience and i live and confusion and actually more than that is with attorney-general eric holder announced the policy that he was speaking to a group of judges and lawyers and law

professors and he told them the president came up with a policy they he could kill anyone of them without charge for conviction in his sole discretion. that statement was applauded a group of lawyers and judges applauded that statement he could kill anyone of them. that is the concentration of power. , the ada we kill live within the constitution that's as close as he can get the one thing we can recommend the committee one of those by the french.

and those of a written by the ultimate key. and to force them into congress to produce a majority compromise. presidential power as it has grown is creating instability through the incredible crisis it is turning into something else. if you try a with foreign policy we will give discretion. the president has to live within the constitution but he has to convince people we

have proven over and over again. with stability and strength but if you do what your predecessors have done to do things just because you can i promise it will not turn -- it will turn out well. >> we will have time for q&a. we talk about madison is an ambitious but there are other favors and alexander

hamilton. that is the leading character that is essential to the production it is not less essential but that second part that hamilton would recognize this in his debates with madison. to see the legislature is free but the executive of the constitutional powers establish that antecedent state from legislative decisions so hamilton recognized the vintage that the president held. deal think that present state of affairs was wrong

or we have gone beyond his militant -- hamilton? >> part of the answer i think talks about federal government action that is to radically different from what he bolted had in mind. what of the reasons not to worry is it would never get involved with little things nobody had that in addition ended to be very deeply in and profoundly that i don't think hamilton envisioned. and that leaves that we do

to straighten the power otherwise not much is left. >> is this a separate problem? >> we are dealing with the government back from the beginning of the republic we have thousands of other than military but a very small footprint of the government also with the creation of the first army in terms of presidential power and he who feared the concentration with the committee exercising power.

so referring to a different time but they did want the president to exercise discretion. we're not debating that but the expansion of the of presidency is said and has no limiting principal that is not one of the reasons for the libyan war but that position was that the requirement to get a declaration of war is not triggered until we call a war since it was an action it is not a war.

the matter what you think about the flavors extremely bright individuals. article one in the article to an article three with that synergy was to balance the three bodies in that is all the favors are concerned with. with a face national security issues that they think a year to yielding. either when presidents are for the other party.

>> i don't take lydia was a war. the actual meaning that we work this out. with them leading up to the first goal for in congress says try it. with the head does not strike me as a war. a certain kind of use of force. and president obama this problem was they were

entangled with the war powers resolution that is part of the constitutionality anyhow. but other instances are outside of the realm. so this question comes up with national security. i don't think the constitution separation of powers is just tough balancing but one important part. the other is the different tasks of the institutions where you the discretion and what cannot govern. and to invest in that power but surely different from

any other realm. in addition nettled think madison played an important role. but the convention isn't the only place to look. and i think washington siding with hamilton and people went to fight for the executive and to be charged

with that function. you can look dash separation of powers. >> where do i begin? beware of those that suggest the rule of law does not apply? but the framers were committed to the rule of law. of the competing interest they never would have suggested the president have a demesne -- domain. i also don't know where that idea comes from i don't know

where that comes from. we bombed a capital city i don't know what war is more limited connecticut action but to put aside that working on theory of structure that the framers including madison created us structure that make

buildings in buildings make us. we are influenced by those buildings that we live in. to force us to deal with each other. if you have the suggestion that is fine for domestic but another world outside that of the alliance of separation is dangerous because we see everything could be translated to national security. in you can have the exit ramp and that is rarely disagree. >> and what was done in the

shadows and just to do with boldly but what has changed in recent years? with the signing statements what has changed that he felt free to take unilateral action and in public? >> a lot of it is still in the shadows. read the federal register on friday a lot of unusual things are happening in the shadows. it is happening in ways that are not intended to be but part of what has changed is the polarization of national

politics that the competing ambitions of our institutions are pushing in different directions in members understand to be financed so they're willing to see the executive overreach. my experience on the domestic and foreign affairs are different in they should be. but when i worked in the bush white house we have members ask the president when he could have or should have done. because they didn't want it to be that public corer be responsible if it didn't work out. it happens a lot. asserted that happen a lot with this president and democrats and some has been public.

but the greater partisanship have counter acting ambitions but not just institutional. constitutional. >> obviously you asserted i am curious what role do see the courts playing to enforce the separation of power of checks and balances ? >> calpers courts have removed themselves i don't blame the two parties to

causally remove themselves and then has responded to the grotesque setting but nobody has that separation to not say who wins or loses but as they pull themselves out of the you have the increase there are plenty of principled people in congress. there are. those they care deeply about the constitution is a the

courts to magnify these problems. the good thing about the hca case that congress had standing. then it has grown to a point but you cannot think of anyone who would meet that standard. so i do think many problems today. >> but basically congress

has to defend itself. is the core of this conflict that is how does bin to the extent that it has been resolved with congress standing up a little sea out in a court tsa this is what you have to obey. they are maintained in part by the supreme court it has to be maintained by the institutions using all the resources is that they have

as they interpret and defend them. increase stuck to that since then. if you want to have a real war. into come to congress. said what the constitution means. the state of balance is achieved by to see the court play some role.

and then we worry about it with the supreme court. i love your commentary but if you know, some of these people they're not to why would trust first. >>. >> akin to leave on the new. [laughter] there is the constitutional mythology and let congress project to fight its own turf. still apply to congress appropriate? nothing. it is entirely of lois / money congress never had a chance to appropriate that.

to take out armored columns congress is not appropriate that is why there was no go. and though the appropriation so the power of the person self is the degree that he has come around a little bet to see somebody sees the lines of separation with that instability is when the

lines become blurred. >> everybody is on the lines of separation but what congress has done is intentional to create immense authority and don't present -- with what to do. and all think that is the role that is the failure of congress to legislate. >> we do have the skepticism in some cases but with separation of powers who

makes the decision? those are cases and now i get to lead. >> thank you very much. [applause] >> looking of the conservatives with the bureaucracy but you discuss

with the president was involved that is a distant concern that the congress has when so many procedural requirements over the years. called the regulatory state by regulatory budget. so i want to say a lot of what you are discussing has nothing to do with as president pro and an example is spoken very clear. there is no basis for this rule to see industries into

the rule they issued an identical rule in the guidance was binding so if you strip away progressive versus conservative you with the role of the federal bureaucracy to. >> his bureaucracy separate? >> but that kind of bureaucracy as of function and what we have is beyond the bounds from the framers of the constitution of this set of administrative

agencies that have a vague and unclear place attempt to bring them under control making the work more complicated rather than making the scope less exhausted. i agree it is an important part of the problem but the way the congress takes itself out is by leaving enormous amount of discretion that creates problems nobody is equipped to resolve. >> with that point there is a lot of discretion.

>> i'd like to distinguish between high and low discretion. the key in the pretty important in nationwide there is the national corps system not amounts to a court system as part of the federal bureaucracy. , and the decisions of foreign affairs with so that it is high discretion. but katrina when bush failed to exercise that discretion

to move more under proper in one of the few people of though world. and with those three choices but the president is it of all three but i do think the president has gained a stronger hand. from the legislative branch

from west virginia president obama new about this. so this signals are sent and the major part of that bureaucracy but from that domestic sphere with an enormous amount of power. and then to make a decision of that magnitude it is unimaginable what is happening. that representational aspects of government.

>> and working specifically is getting back to the power of the purse. the ship is so far sailed he may not be able to recover but with the tower power of appropriations is delegated to another branch government. is dead is a possible if the supreme court were to enforce those formal distinctions of the branches

and then what they may consider later a constitutional function? >>. >> going back to educational history that wasn't true passing laws in particular but controlling the power of the purse. it is the power of the purse and maybe not even in that area. in the trek is that it does slide with the power of the purse if there is anything

if there is anything constitutional to win the presidency but in castillo happen in this way. and what congress wants to pick for appropriation the law passed by congress cannot exclude the power of congress and now going back to the original idea it is in just a budget we should use the word power of the purse. but if it is controlled in that way if it can be controlled by congress not

having to act. but that decision not to appropriate, with the house of congress to act independent. in they should be shaking in their boots and that is emblematic of what is going on. >> i commend your restraint not applauding wildly. that is the right way to think of this problem. since the 74 budget act and to make it more like the

executive agency in a way that the president used his own vantage in with those 30 massive budgets those bills are written by those underfunded. it happens in the administrative agency by those who are supposed to be begging congress for many. and is not close to the process in congress should always be legislating it would be of a dramatic change but if you break the power over their own budget

to fundamentally change that process. >> civic alike to return to the issue of the courts are you familiar with the courage marshall islands case? they brought the suit alleging a violation of the non-proliferation treaty and admitted the it was not a test case. for a federal court tuesday to what the obligations were with the nuclear non-proliferation treaty. tsa there is no way in hell the court can have any

treaty and to that separation of powers to believe there is a better test case for a federal court tuesday to with the obligations were under the treaty? >> to say congress is giving away the power of the purse. and then to reassert the separation of powers. i read in opinion now and then.

but my instinct but my ignorance tells mission other and more about them going forward. >> i am not a lawyer either but it does seem as i see things the way is see its authority to the situation that the problem is the failure of responsibility. in the a.d. is that the courts can resolve just look at the case most closely to

the questions facing judges and taken by those administrative agencies. ended is it clear but it is pretty clear end to expect the courts to resolve that is too much. >> wait for the microphone. >> the president declared the nuclear treaty to have no role.

but it seemed like more of the treaty. and congress has enabled it to overcome the president's veto. and is against the will of the presidency. and i cannot think of any of their way. did to do that to the power of the purse.

is to be so aware of the power of the purse to be used against him. i don't think that one-on-one legalistic process and you can go to war. and then it has invited itself and congress is talking about suing every time something went wrong he would go down the street.

if you have the separation of powers in this is us a good way to close. [applause] [inaudible conversations]

the first lady michelle obama of former president george w. bush a and laura bush will be among the dignitaries attending the funeral. mrs. reagan will be buried next to her husband at the library. live coverage of the c-span that works birkenau --. >> tomorrow a discussion of the infection and the response. the bipartisan policy center will host a panel discussion to combat the outbreak of the of virus.

ms. reagan will be buried next to her husband at the library. live coverage on c-span, c-span radio and cspan.org. the republicans are saying they will not vote on any nominee for senator grassley of iowa is the chair again senator leachate -- senator leahy is the democrat. on the committee. [inaudible conversations]

>> i cannot officially started reading until we have one more member here but i was going to say something before i gave reopening remarks a while will say that now so we don't waste time because

this is a very important debate that we will have. i say this officially not for my members but for people watching on c-span that often think everything we do in washington d.c. is political or partisan and this debate will be very partisan but i hope people remember that over the last 14 months, this committee has acted in a very bipartisan way from the standpoint of 21 bills getting out of this committee that has done now to either on a consensus basis or very broad papartisan basis. one has passed the senate yet this morning by a wide margin in what is before the senate so i hope people will

realize there are both sides to the issue is very muchmu divided along the of party t lines and i hope everybody realizes these are honest strongly felt views to be expressed in we should encourage that dialogue. . .

[inaudible conversations] >> before i give my opening statement.