are meant to help, the poor get this is true among progressive women as well. when we use their moral framework, we are having a more meaningful conversation and we are more persuasive and that is what i think most of us today would like to see. it's about self-satisfaction, preaching to the choir. if we want to persuade new supporters as i think all of us do want to continue doing, we need to speak to the personal emotional level on their terms keeping their moral framework in mind, not our own. i think i will help us industry whether we are in the business of generating policy like we are at ifw activating grassroots coming digital social media work reading social networks. without i want to think that he will again for coming to women lead and will get on with our conversation about the future of the supreme court. thank you so much. [applause]

>> good afternoon. this is our first panel after lunch. i hope everybody is full of energy and fresh from a delicious sandwich, so you talk about constitutional law and the future of the supreme court the we have an excellent panel. i am hadley heath manning, and i'm proud to be a today with three distinguished lawyers. allocated as our panelists starting with megan brown come a partner at wiley. we have with us today erin hawley who is our ifw legal fellow. we have worked together on some amicus briefs that independent women's forum occasionally filed with the supreme court. and most recently filed an amicus brief so if you have any questions about the unsigned opinion that came from the court in the past couple of weeks, i'm

sure aaron will be happy to take those questions for you. importantly she is a former clerk for chief justice john roberts. and, finally, we're joined today by susan engel who is partner with kirkland and ellis college is a former clerk of justice scalia. we will of course be discussing the legacy of justice scalia today and also the future of the supreme court. i believe in you agenda this panel is built as a conversation did not only will this be a conversation among the three panelists and myself but i invite everyone who is here to stay in a conversation. i hope to reserve some time at the end of the panel for us to continue the conversation. it helps me to be engaged with any kind of speaker. when the tummy about where the conversation is going. i'm going to show my cards and reveal to you a sort of rough outline for today's conversation. i wanted to structure it like this.

first we'll talk about the past, and then we'll talk about the present, and then we will talk about finally the future. i think the future may be the juiciest part of the conversation because of course the future the sprinkler is very uncertain at this time. but without i want to allow our panelists to give opening remarks and then i'll ask them several questions about the legacy of justice quit until ask about the case in the present term and then finally we will discuss together at a ask for some audience participation especially in the part about the future. so with that i will turn it over to erin to start with your opening remarks. >> thank you, hadley. it's so nice to be there. i wanted to share a story about justice scalia that many of you may not know to begin our remarks. and so justice scalia's father's name was salvatore eugene scalia. he was an italian immigrant, and one of the most interesting

things about justice scalia's father was not that he put himself through college, earned an advanced degree, but what the subject was in. he was an expert in stall in romance languages. he published several books and his idea was you want to develop a methodology or theory of interpretation. you look at the old great works of literature and he believed those words should be interpreted literally. so in other words, if you're going to translate -- sorry about that. so if you're going to translate one of the great works of literature, then justice scalia's father, salvatore eugene silly of them would recommend that you look at the little the word. to him words matter. so young justice scalia grew up with the idea that words matter. so if you look at his legacy on the bench to look at what he accomplished over his lifetime

and in this that i think will discuss something that would probably alike agree on on the justice league is the single most influential justice across not only the legal profession but a cabin in terms of how we look at text. this has deep roots in his upbringing, in his father believe that you need to look at the text, it actually matters and you should look at the text literally. >> thank you for being here. this is a great event. it's nice to see some a people engaged in these issues. i was thinking about justice scalia. the court to with the up to justice scalia and i was thinking about him and his impacts on sort of the job i had to vent and my legal education and my career since been in practice and stumbled on a quote from justice scalia about the role of judges that i think really captures what was gratifying about fighting justice scalia in law school in florida reading a matter of interpretation and having to start to make sense -- finding

-- but we just heard, it is a common sense approach to a rulebound society. one of the quotes i like patty made and if you're going to be a good and faithful judging have to resign yourself to the fact that you're not always going to like the conclusions you reach. if you like them all of the time you probably doing something wrong. seems that takes life in my judges chamber what i was looking for a lower court judge very gratifying, that it's not all politics, that's our principles and rules. that is one of the things that i stand for is we can quibble about doctrinal changes but he stood for the idea that rules matter, words matter. and has eluded trying to bring decisions and arguments within those confines and recognizing that you can disagree that he mentally with the policy outcome, and it sure he hated a lot of the decisions that he

wrote -- the seemingly. but it's ultimately congress is supposed to be making a lot of these decisions and not judges. .com is one of the ordering principles that makes them a lot make sense to me one of the things that is such a good part of his legacy. then we can talk a little bit what we see coming down as congress come as this and have to figure out what to do with the current nomination. >> thank you. thanks so much for having me. i clerked for justice scalia, and i did so in the 2001 term. i had a rather, the relatively uneventful term but we followed the bush v. gore term, and one of the things that struck the most about come into the court after, you know, shall we say a contentious term the prior year was how the justices and justice scalia could put in a separate

box their disputes over the law, over the outcomes of cases, and how it didn't affect their collegiality on the court. and justice scalia i think was known for that. he was very much able to separate ideas from people, and he loved the law and he wanted to be right. he wanted to be in the majority. but he had such strong friendships with folks like justice ginsburg. he became a hunting buddy of his what justice kagan. it was a very, very collegial court and he made it a point to try to improve opinions from all justices on the court. justice ginsburg recently told a story at the second circuit judicial conference where she was writing the majority decision in a case, and justice scalia was writing the dissent.

you for going home one evening he dropped off a draft of his dissent with justice ginsburg saying it had not demonstrated to the court, but perhaps he could use his dissent in writing the majority opinion. and, which are still in the drafting process. and she said that reading through his dissent greatly improved what she was writing as the majority, because as can be anticipated, his dissent had words to pull quote in the majority opinion. and that's another thing that stood out, stands out in my mind from a clerkship. the number of times whenever justice scalia was writing a dissent, the back and forth between that justice was writing the majority of the one come and justice scalia writing the dissent. justice scalia would add something to his dissent saying that argument doesn't make sense. sabrina mentioned how important

it is to understand someone else's moral framework when you are arguing with them so that you can argue on the same playing field. so while justice scalia might not accept their judicial philosophy of someone like justice ginsburg or a justice breyer, he was very calm he was such a brilliant lawyer coming at such a brilliant mind but he was able to critique someone's opinion both from his own point of view but also point out inconsistencies with a result in another justices own philosophy. so i think one of his lasting legacies on the court is just to improve the scholarship and the writing and the analysis that came from all of the justices really. >> thank you. to follow up on some of the

remarks, i'm sure there are many of us who are curious what it was like to be a clerk to justice scalia, and if you could speak to for your personal experience with the justice or working in that atmosphere? >> i used to describe them, i was the only female. each justices have four law clerks typically come and justice scalia often had one woman and three men. we were treated alike. i like to think maybe he was a little nicer to me sometimes. he would jump all over a male law clerk to wasn't dressed properly, but he never said anything to me because i think he did not want to go there. but justice scalia like to debate and discuss every case. so that was one of the highlights of the term. every single case that came through the door we would come he would call the clerks into

the chambers and we stood there for an hour or two discussing the cases both before and after all arguments. i have to say that cases that prompted the most discussion were really not the hot button cases that you read about in the newspapers, like a second amendment or an abortion case. are the time i clerked in 2001 justice scalia judicial philosophy, he knew what it was. there just wasn't a lot of debate about whether he believed that an abortion right was something that the prosecution spoke to. he didn't believe it was, those types of cases didn't yield a lot of discussion. a case that stands out most to me was a case about toe truck company safety regulations. could not have been, i think our clerk, with the way we chose cases to focus on we go to each

take turns, by the last case chosen but it sounded so boring. and yet this is the case that we spent hours and hours talking about. it all turned on whether a city could pass tow truck safety regulations, or only a state to do so. it turned on what the word state meant as it was used in a federal statute commission a state includes the but in this particular statute, some sections of the statute said states and political subdivisions. and this would only said states. so justice scalia thought, you know, if you wanted to say states and cities, they did, they could in other parts. so it means something when they didn't. we were in dissent in that case. i think only justice o'connor signed into his dissent, but he concluded that there was no

doubt that states did not mean cities in this statute. and justice ginsburg in the majority said she thought it was a close call but based on various considerations, including respect for states' rights, it did include cities. i take away from my clerkship, you know, what an amazing job he did at taking each case t the eh case was imported. each case required careful analysis looking at what the words said and giving them the meaning that was intended. >> it reminds me of what you're saying reminds me of an exchange established by a state. that's another dispute that the court has had about the affordable care act and about what the meanings of words are. >> and it's hard to figure out sometimes. these things are not written clearly. >> i'm referring to king v.

burwell who for anyone who thought the litigation about the aca. i don't ask about about an area of law or areas of law that you as lawyers see influence of justice scalia, or which parts of the jurisprudence as he had a big impact on this especially as relates to your work, feel free to explain to us how, but each of the three panelists would like to respond to that. we will start with erin and move to the left. >> justice scalia has had a tremendous of impact a number of areas of law but i will take a quick step back and look at his overarching impact. so justice scalia as we all know believe in originalism. what originalism means, that variations of it but basically if you look at the constitution and interpreting it as applied to a case today, the fourth amendment, for example, do you need a warrant to search a cell phone? those questions go back to what the fourth amendment at the time of founding, or least that's what justice scalia thought.

he really changed the debate not only looking at constitutional text but also a look at statutory text. as megan mentioned is published numbers of english books including a matter of interpretation. in that book he explained that the text matters. one reason the text matters is because if it doesn't matter, then you've got unelected judges sitting in very scored across the land that are putting their own policy preferences into a fact by contributing this text. and i think one of the ways we can see how influential justice scalia has been is to look at the legal opinions of the 1960s and the 1970s, and compare them to the legal opinions today. without exception nearly if you look at a legal opinion today regardless of the justice who wrote it, they will look to the text of the statute they will try to hearken back to the constitution. this wasn't the case before justice scalia. broad purpose was enough. if congress had intended such and such, or a judge thought

congress intended such and such that was enough. today the courts and judges are required to look at the words that congress actually spoke. i think this is really important when we look at how our constitution structure, our government with the legislature given the power to legislate, to make the law and the courts empowered to interpret the law but not make it according to their own policy preferences. i think he has had a tremendous can't be overstated affect on how judges and even academics look at the law today. >> to echo that before getting into specifics of the areas where i think his legacy is enormous and also impactful for practicing lawyers, sabrina mentioned using the vernacular of your opponent and i think what's interesting is what susan was think about being able to relate to his opponent on their terms and make their arguments better for them and show why their logic field. he in a way sort of took over

the playing field when it comes to legal debate and legal arguments because so many advocates, professors can of the judges now start with the framework that still be a sort of pioneered in a way. .. has to fight on that field. in terms of the areas that the longer is the meet is tremendous and also really cracked me impactful for practicing administrative law common he was sort of a dean of administrative

law prior to going on the court. he was on the d.c. circuit, which is the court of appeals that hear so many battles of administrative law and his role in those cases really can't be dated. he is responsible for some of the biggest cases and decisions that were not. it was interesting to me to see in recent years have so much as approaches to deference to agency's hardship to the little bit heavy with the growth of the administrative state. the reason he felt strongly about deference to agency's goes back to his believe that congress is the place that should be making policy decisions. it makes develop our intuitive white agency should be deferred to them given a lot of running room. he also wasn't shy about telling congress he can fix this. if the above are delegated to an agent they come you can always access his at the same time he would require agencies to faithfully go through that your interpretation to reach reasonable results.

what i like about the decisions as they weren't uniformly pro-or anti-agency, but you could expect him to the agencies through their paces in you saw lawyers at the nation is no when they are making roles, they would have to expect search and review of their decision and tried their best to make their roles more reasonable, more logical and grounded in the text of the statute that congress told them to implement. that is one of the most impact areas with oligocene in the scholarship behind administrative law and what the federal agencies are doing, which is so timely right now given the growth of the federal administrative state and so much is decided by this agency far from congress. >> i have to agree. both of utah without justice scalia is at emphasis on the

tax. on the taxpayer by the rest of the the constitution center and let a statute as. i think it impacts not just judges, but i see it in my own work as a lawyer. if you don't start with the relevant language of the rule for the statue, you know you are in trouble because why wouldn't you start with the text if it helps you. i never did it, but when i was clerking, i have said to my co-clerk, we should take all of the pieces we are hearing, open up the braves and compare it to party starts with attacks, are they more or less likely to win? after justice scalia, the answer is if the text is on your side coming or going to win. what is remarkable is this practicing lawyers it's normal,

but it's really quite different from a few decades ago. we've made such a meaningful change in the way judges resolve cases. >> one additional thing i find funny that he did is there's always a debate about the role of legislative history and when you can reach back when you're trying to interpret a word, what role did the committee reports by and there were hearings don mancini has definitely created a healthy skepticism. he has a famous quote that i won't try and do because all butchery. the idea you can look over the crowd and pick out your friends when you look at legislative history is very easy to manipulate data. that is why it's important to serve attacks. this practicing lawyers who have to decide when to deploy legislative history. it is in your arsenal of tools. but it is not to go to that i think it was in the 70s as an

easy way to sort of say no, this is a congressman. this is what the rule should mean and move on. >> justice scalia felt so strongly about this and not relying on legislative history that if there was an opinion in which he agreed entirely, but it used legislative history you would file a separate concurrence say i agree except for the legislative history point. >> i think it is important, why does he care so much? right? the reason he cared is that the lawyer i can come up with a policy argument for like any argument you want me to make here the same goes for legislative history. you know, there are members of congress that will have spoken and taken a position, kind of across the board. you can sign on either side of an issue, you can find legislative hits yuri to support the result that you agree with. so what is it that will ground the judge or put down various

around how a judge can decide a case. you know, justice scalia, he made a real mark on separation of power. this is all consistent with that. he believed judges had a role and had to remain within the role to keep the proper balance of power among the three branches. >> they issued separation of power in administrative law are obviously critically important. sometimes the issues we think about when they think about the supreme court, the issues that get more attention or the hot button issues like abortion or immigration or affirmative action. we actually have some cases that speak to the very issues in the present term. now i want to shift gears and talk about not so much what justice scalia's legacy was and will continue to be, but how we are going to feel his absence in this current term.

i think off in the absence of someone speaks volumes to what their legacy really would be. if i can ask each of the panelists and maybe we will start with susan and work our paycheck to the right to the comments on the cases currently before the court and what it means to have an eight-member court that is absent the voice and influence of justice scalia. >> well, there are 38 cases that jump to mind. i am sure i am leaving some out there that do focus on three, they are still pending. one is the immigration case. and actually, they all come out of the circuit. what is important about having a justice court is how the fifth circuit, how the lower court resolve the case. if there is a fortran 94 split, the decision will stand. so the split won't make any new

law. i think they won't even write a decision, but the parties to that case will be living under whatever the lower court said. so when the immigration case, the deferred deportation programs that are as she'll have not gone into effect. so if there is a fortran 94 split, the administration loses. that case was argued just in april i believe. people can speculate about what is going on in the case, and that the gas is the longer it remains undecided, the more likely it is you will not be fortran 94. because i think it is in the

courts interested, for some way of resolving the case and not to have a split tear the thing about the immigration case is that it's very complicated case about whether the executive is intruding on commerce is the already to say when emigrants are lawfully in the country, when emigrants are entitled to work. but there are several pressured issues in the case that the justices could very easily -- i shouldn't say very easily. they could resolve the case on standing issues, like i was eighth even allowed to bring this action to the court to resolve. there is a notice and comment, an administrative law issue in the case. the program is put into effect without giving the public like the typical notice that the program will go into effect and you have an opportunity to comment on it. there are issues like that that is possible that the majority could he coddle together in the

case could be resolved kind up without a solution. should i leave it at that? the other two are the abortion clinic case. so if that one -- if that one is a tie, then the clinics -- the state of texas one in the lower court. so the clinic that supposedly will close with close. no abortion law would be made. again, in that case, to a moral argument, there was some inkling that the courts might try not to resolve it. for example i believe justice kennedy spoke about whether the record was fully developed as to whether, even if some clinics close were the ones that remained open, you know, how

many abortions would they still be able to perform? so this type of questioning suggests that the justice are not anxious to make new law with just eight members. they are not anxious to resolve the case with a fortran 94 ruling. is there a way to kind of resolved the case on threshold or narrower grounds and the last one is the affirmative action case from the university of texas and university of texas and not only has seven justices because justice kagan worked on the case when she was in the administration and so is recused. so that one won't need a 4-4 tide. it would be unusual to make new affirmative action law with minus two. >> taking a look at the broader issues, i will note that susan

mentioned standing as a potential way to dispose of the immigration cases. that is another area where scalia had a major impact. he wrote the seminal decision in a case called lujan versus defender of wildlife and in a lot of the agency litigation, and there is a tension in the lot about who can sue and challenge certain things in a goes to the constitution's separation of powers and what kinds of disputes can be brought before the judiciary and the courts require you have to have standing and certain harms that will happen to you. you can't bring a generalized grievance that everyone shares and scalia pioneered a lot of the thinking, but it's actually rather critical to a lot of sites over agency action. that is in particular a loss for the court going forward. there's several environmental cases percolating along the way.

i am not an expert on environmental law issues, but in the state of west virginia has secured some pretty extraordinary relief in the case and just is scalia has also been a thought leader and a pioneer in dealing with environmental cases. i read some commentary that has been critical of this deference the prize last to the epa. that may be fair in recent years has the epa has seemed to have gotten further and further afield from its statutory mornings and congress hasn't done much that the epa has been sort of occupying the zone they are. that is an area where the particular cases percolating out under the clean air act and clean water act cases will miss his contributions and going forward that is an area where his boss will be particularly acutely felt. we can talk about the bigger picture issues, but those are the things on the docket that will be notable to see how the votes shakeout.

>> to pick up a bit on what make and just sat about the litigation with the epa. epa has a number of challenges against regulations working to the federal quarter. there have been two issues. one against the claim power plant and one against interpretation of the great waters that. what is significant about both of these actions is by federal courts, the supreme court is that the agency we think looking at the merits of these cases that you've actually gone too far. i think the clean waters case of a particular example of why the text matters. the statute passed in early 1970s. congress said that the epa and agency created by congress shall have the already over waters of the united states. since then, there've been a number of supreme court decisions that the supreme court has interpreted to include waters directly adjacent to navigable water.

a series of iterations and agency regulations was the outcome that today the agency interprets waters of the united states to include basically an area that can wash into even a wetland. the epa looks at the watershed and if the cumulative effect on the watershed could ultimately impact some sort of stream are rather coming year may be in trouble if you want to do a building project for farm or anything like that. in one opinion a few years ago, justice scalia said we just can't tolerate the epa's waters of land approach. in other words, when the statute says waters between spotters. it doesn't in fact mainland. as in all areas, we are really going to miss both his weight in pointing out the logical fallacies in the other side's argument that time as well as commitment. >> i want to ask one last question about the present term

and it's pretty specific so passive you like. since we are here with an audience of overwhelmingly majority female audience today, if you have a comment, this is a background case consolidated by nonprofit employers over the aca's regulatory mandate that all employers. health insurance coverage for contraceptives. some times hobby lobby part 2% in like that. they were still not a satisfactory way to resolve the issue. the case included a poor group of nuns. you may have heard the media coverage about that. i would like to ask panels that they have a comment. if you would like to take a gas

in your crystal ball that night it happened had scalia not passed, that would be an interesting thing to consider. also where the future that case is going. start with this because i know you wrote our amicus brief. >> thank you. hadley and i co-authored an op-ed on this. i want to start actually let the decision handed down. it was a unique sort of surprise decision and in that decision it was unanimous to all eight members of the corzine on today's lugubrious concurrence of justice sotomayor. every mandate to the core. the consolidated case, five cases have come up through the lower court with contradictory results. so you don't have the clean result and it goes back in the circuit law in place days and you've got the opposite result and it makes a 4-4 split messy.

with no inside knowledge, and this is a strong bargaining chip in getting all of the justices to sign onto this opinion. the opinion remember the lower court, but it had been uniquely set up to result in a victory for the poor in other petitioners. the reason for this is in its order, the court says they may not be fine, so prohibit the imposition of any sort of punishment against religious orders who choose not to provide contraceptive and tells the government to work it out. during oral arguments, the government has received questions about what would be a reasonable or acceptable accommodation? during subsequent briefing, both sides grudgingly agreed that it would heal kay if the government wouldn't violate the religious liberty rights of petitioners and the government would be able to do this.

and what this says is to provide insurance to employees who want contraceptive coverage without involving the poor at all. in other words, the government would contract with their insurance company separate plan. they wouldn't co-opt the plan and they wouldn't require the little sisters to be complicit at all. the court's opinion says the party said this is an accommodation work. go and work it out by the way, you can't find any of these petitioners. there's been arguments in the commentary about which side to win four. in my view is a clear one for petitioners and also for women provision for a contraceptive coverage for employees who wish to receive it. >> i do miss the opportunity to have seen or read justice scalia's opinion in that case because he's had a rich history

and it would have been interesting with commentary on some perceived inconsistencies or tensions with his religious case from years ago that said no the general applicability is generally going to be okay to bring your exercise of religion, but he would've understood this this case in a unique way and i think he would have been colorful and describing the asymmetry here commented david goliath dynamic. really you are going to go after the little sisters and fight this principle is hard with these -- i just miss the opportunity to have read that the summer. >> this case was argued with justice scalia. and so, i think it is an interesting example of the court trying to work out these cases

without the 4-4 split. i think the gases probably could've easily been a case with justice scalia in the majority. the other case that was also argued with justice scalia with the texas affirmative action case. so it is more of a question of what happened to a majority decides that they're even worse than in most cases, whereas some of these other cases in march and april can see from the oral art event itself of the justices were asking questions in an attempt to recognize going in to oral arguments that they might need a third way out. so this is definitely a good example of avoiding kind of a nondecision in the case. it is still not a full decision. it still leaves things somewhat up in the air, but better than

it could've been. >> great. now i want to shift to talking about the future. i want to involve the audience a little bit at this point so prepare yourself for a flash poll or two. as we are all aware since the passing of justice scalia, president obama has made a nomination to the supreme court and what they think about this nomination. my question at this point, the u.s. senate has refused to confirm merrick garland to the supreme court. my question for the audience is raise your hand if you approve of the way the u.s. senate is handling the nomination and approval process. okay. now raise your hand if you disapprove. very interesting. now, not to put them totally on the spot, but am going to ask the panel asked the same question and i will ask if the

panelists will justify their approval or disapproval of how the u.s. senate has handled the nomination of judge garland. we can start with megyn this time. >> far be it for me to tell the majority leader how to run the senate. this to me seems like a classic kind of political dispute they would say that politics advise this. if they want to hold out and not do the processes that sometimes go went to advise and consent, that is their prerogative. i haven't followed all the constitutional areas that i've heard and it about from different scholars with their own agendas. the president has discharged his constitutional responsibility and the senate i don't know of a requirement that they take action within a time certain. it seems like your

quintessential battle between two branches of government. we will see what the election season holds to whether someone links or we end up with something totally different in january. >> aaron, did you want to comment? >> i agree with that. you might as well say this is a political issue and we will not get into it. but he was certainly look at the text. as megyn alluded to, there were two sort of powers or authority is while the president shall appoint a supreme court justice said in the senate shall give advice and consent. but it says nothing within the advice consent clause that requires the hearings that are recent phenomenon by an up or down vote. many of them actually turned the job down. they didn't want to go all over west virginia. the process has changed

throughout the constitutional history. it is fair to say that there is no constitutional requirement that the hearing be held in any certain time. >> i mean, i think it's been three months now. it's interesting to me when you travel outside d.c., does anyone really care? the supreme court has nine justices. it had eight, would anyone know that was wrong? it seems like a lot. maybe you only have seven that should get rid of one. but you know, i think more likely than not, like if you describe yourself as a republican, this is a good approach. if you describe yourself as a democrat, you know, there should be -- the senate should take action more quickly. maybe that doesn't describe everyone. but i think if the shoe were on the other foot and democrats

were republicans to defend exactly the same democrats would have exactly the same approach. because justice scalia was so influential and he had one vote, but he was such an intellectual powerhouse and kind of a center of the conservative side of the court, and that to replace 10 with someone who has a judicial philosophy that is really so different. the supreme court should be a big issue in the election. i don't know that it will be except inside d.c. but you know, when you look at the things that are really at stake in this election, i think the supreme court is one of them. >> that leads me to a next question. i live outside of d.c. now. i would say it will be an issue

in the election. my workarounds in this world of public policy. my next flash poll for the audience is how many of you when deciding how to cast your vote for the office of the president of the united states would be considering the supreme court is one of the top issues when you make your decision about how to vote. pretty good number. we are in d.c. >> in the d.c. greater area. well, thank you for your input audience. my question for the panelists and susan sort of raised this point. do you believe this will be a driving issue and people go to the polls and how many votes might be influenced by the future of the supreme court? erin, do you want to start? >> sure. probably agree, i think it should be a very big policy

consideration as you think about who to vote for. there are two very different competing judicial philosophy is typically advocated by the right and left. there are exceptions to that, but generally speaking, we should look at the text that each branch of government has its own defined set of responsibilities and roles that her government is a limited government, though in a congress to ask and we need the judiciary to interpret that is a very sort of sat way of looking at the law congress might enact. on the other hand, you've got the philosophy were generally associated with the left. that also applies to textual statute as well. this idea of the constitution changes are also timed so the founders could not have known what it would've happened in 2020. we need to interpret the statute or the constitution loosely to encompass all of these new sets of ideas.

as suzanne mentioned, this leaves judges opened to put in their own policy preferences. if you think about the two different kinds of judges come you might get not only on the supreme court, which is usually important, but the courts of appeals and district courts are i don't even know how to get, probably 50 or so vacancies to come up during the term. these are training grounds for supreme court justices. who gets in this lower federal court offices, federal court judgeships as well as the supreme court. from my perspective, you want to judge faithful to the tax, not someone who will interpret it however they think it would be interpreted or sort of the legal theory of the day. >> aaron did an excellent job with the typical. but judicial nominations and philosophies. this is not a typical election year. there's a lot of questions about

who the front running candidates, and who they might appoint and what their particular philosophy is when it comes to the supreme court. further comments on how this election might face the supreme court. if you can also comment on what we might expect a different running candidates on either side of the aisle. i know that is a difficult question. does that makes the panel so entertaining. >> yeah, donald trump made his list and there were some very commendable judges. there was a pretty mainstream right of center sort of republican list. there weren't any big surprises there. i think a question one could ask oneself if you are trying to figure out what kind of judges he wants on the court is i would like to think of it, you know, look at the diversity of ideological or jurisprudential approaches on what is typically considered the right side of the supreme court versus the left.

notwithstanding scholars like to say justice goliad and justice thomas are two peas in a pod. they are not. when you're trying to count notices, one of the jokes is who wins the supreme court. it's not necessarily a few returning to five. when you get to the five votes, and i don't see that many places where we are actually wondering what is justice ginsburg going to do with this case for well-adjusted soda may your peel off and do something wacky compared to the folks who tend to align with her. it is our side that tends to be our side. the right side of the court as more jurisprudential diversity when you look at those. people wonder, where was justice o'connor going to be? or is justice kennedy going to be? you can't predict where justice alito is going to be. what i would look for is the

nominee go into sort of always reliably run down that one path, or might they be on our side and sort of the criminal cases where they peel off into different things. just one possible principle for trying to cut through some of the confusion about who they are. i think we know where president clinton's nominations would fall. i don't think there would be a big surprise in any of the big cases where president clinton's nominee would vote. >> i agree. some of the folks who miss justice scalia is he had a lot of disk decisions that were favorable. there were certain amendment decisions come in various fifth amendment, a sixth amendment compelled to testify against yourself. you know, he was often a fifth

vote in a pro-criminal defendant 5-for case, which was consistent with his judicial philosophies and his originalist view of the constitution. but that part of his kind of legacy i think is, you know, mr. glossed over at times. i do not think that it will be a big issue. i don't think people are focused on it. i think it should be. it will be a very much discussed issue in the media. the limited numbers of times that i go into virginia, the further away from d.c. though, the more into the weeds it seems, even in i don't think it is. >> the supreme court asserted an issue, but touches on so many issues because an entire branch

of government unto itself. this'll be my last question for the audience and my last question for the panel. for those of you who may have been brainstorming questions of your own you would like to ask, i'm giving you fair warning. the final question of the day is how many of you, by show of hands are optimistic about the future of the supreme court? how many of you are pessimistic? and how many of you are unsure, undecided? looks about 830, 30, 30 split. panelists comment tell me if you are optimistic or pessimistic or unsure, uncertain and give us some of your reasoning why. shall i call on you?

>> i feel like i'm sufficiently incapable of predict in what's going on. you have a grounded reason to be optimistic or pessimistic. it is a wild season and i just don't know what we could have in january that might affect the court and what that might look like. >> i think it will stand our fall with the election. there is some speculation on how close would president trump's foreign-policy bee with president clinton? one might be speculating to answer that question. on the question of how different would a supreme court look like under president trump and president clinton, we may still be speculating a little. i think they would look very different. if you look at the ages of the supreme court justices, we are not talking about just justice scalia c. there's at least three of them

who are in their. i thinkt like mid to late mid-80s, you know, could be close to stepping down. i think there could very well be four seats the next president. that is the supreme court could wind up with a dash seven liberal justices. i may be counting wrong. you have thomas, alito and chief justice roberts. you know, they are fairly young. but the other six seats could be filled by liberal justices. and that is a sea change. we've had a fairly conservative supreme court. cert money during my kind of legal lifetime.

you really will see a lot of different types of decision on issues like standing, which is who gets to litigate, who gets to bring a case. can the states challenge federal government action? how far can agencies go? it's not really a conservative or liberal issue in terms of result. what it does give the judiciary and more liberal justices will tend to give the judiciary judges more authority and so that can be good if you like the judges and it can be bad if you don't like the judges. but i think we would see a very, very different court. >> i think you would also see a real change in a pro-plaintiff class-action sort of way that would make the legal system here

less hospitable to innovation and growth because that's a big distinction between ice in european countries and others as we have very act of planets out there and the supreme court is often the bulwark against the more aggressive innovation then i think with a solidly liberal supreme court you could see some real changes in what would be anon helpful direction on class-action management and bringing very aggressive lawsuits that are hard to deal with and not great for the economy. >> one other issue, not to scare you off, but also a change in a more liberal supreme court is the number of issues the court within two. it is sort of the least dangerous ranch predicated on the idea that the court would decide what the law is, but that would be interpretation and leave a lot to the state than

the state, for example, and would be able to decide the marriage issue that would read how they define marriage. of course this past year the supreme court waded into that issue. if we have to supreme court, we'll see more and more social type issue is that one might prefer it be elected branches decided by the supreme court. >> all of this is not to mention of course as we have been learning this year the president is critical to selecting justices, but the u.s. senate as well. they may be considering that as they head to the polls to vote for your senators as well. now i would like to open up this conversation and include questions from the audience if there's anyone that that has a question for the panelists. please press the button on your microphone. >> so, do you think that just is scalia's original will carry

through at all? even if we have more liberal justices? do you think any of that will carry through? >> i mean, i think it will remain. but i think he is often the dissent now and i think his original decision making would be in dissent on the supreme court. in now, which will eventually trickle down. i think the supreme court is kind of a vote changing institution. it is unusual that we will find ourselves talking about not one, but four seats. so once the seats are filled, likely over the next four years, it will change more slowly

again. >> i think that is one of the questions of what will happen to his legacy and that is why this election is important, whether there is someone still the carry that flag, to make a contribution to jurisprudence. >> other questions? we will take one in the middle and then go to my right. >> i was wondering, would you consider all of the justices as originalists? >> the question i will repeat for the microphone. would you consider the other conservative justices to also be originalists? >> so i think depending on the legal scholars who would talk to, probably not all originals. justice thomas is the most original list on the court. justice scalia solve described himself as a hesitant to originalists.

as the wrong word, but sort of someone who was originalists, but maybe didn't always like the result. if you look at chief justice berts opinions, they are often very equal to the original tendencies. i don't know that they describe themselves as sort of following the same legal framework. >> that gets into the question of original list. we may have time for one or two more questions. dominic for a question. >> how are you doing. my question is what does the supreme court's job to understand the executive branch basically when you're president you just propose things. when your congress, you just make laws. can you all tell me what is the job of the supreme court to do? you've got to interpret it, but what does that mean? also, what are the roles that

the president plays? what is their job to do in a nutshell and what are the rules as the presidential appointment to play in that role? >> great question. does someone want to tackle the role of the supreme court and what it means to interpret them? >> is over to think what they are today because the court has so many things that feel like lawmaking. this is a question first year law students grapple with. what does it mean to interpret the law? the chief and his confirmation hearing said you are supposed to be the umpire. you are being fair. there are times when that gets difficult when you have to interpret a word that's never been interpreted before it has an ambiguous meaning, but you have two parties who are fighting about it. i would think, you know, your job as a judge is to give a faithful meaning of that word in

its context, being respectful of what it's doing in the overall scheme that it finds itself. you are supposed and not a looking at the outcomes, that you are resolving disputes over the meaning of the words that congress has used for the actions the president has taken. that's probably underinclusive as a definition. >> i think that's right. one thing justice scalia believed as you are resolving a dispute about what it says in a specific context. the parties are framing issues for you ensign a factual or in what is bombing as applied to the setting. but the way you interpret the law and should remain the same when the parties change. so, you have a factual background to interpret what the law is. but then it is sticking to that

interpretation that i think justice scalia believed his white gives judges their impartiality. >> for the role of the president, it seems often in supreme court cases that one of the parties is the federal government itself, especially the executive branch. i don't know if any of you would like to touch on the role the president or the administration more broadly in terms of which cases wind up with the supreme court or have the conflicts arise. >> so the department of justice is probably one of the largest law firms in the country and within that justice department, there is a special sort of section devoted to a supreme court case says. so whatheir job is as part of the executive branch and under the president's authority is to defend the laws of the united states. his arguments about what it means to enforce the law and how vigorous they they defend the

law, those sorts of things. generally speaking, the lawyers in the office or to defend the lot is written by congress msm forest. the government's lawyers as it were. >> i think one point i'm not in this administration, others have commented. i'm not breaking any new ground here that the folks who are dedicating for the government are very influential about framing cases, what legal position the government will take to defend the statute or to go out and prosecute someone or bring civil action. you are seeing a lot of innovation. we filed a brief in religious freedom case a few years ago where the inception of the supreme court level change or not equate and the supreme court decision called them out and said this is a really aggressive position you are taking that is not. they lost handily, the uk's d. and aggression in legal

argumentation that i don't know would've been president or pursued under previous administrations who may have been a little more humble. but those decisions matter. we are at time at this panel. i would like to offer the panelists if they have any brief last remarks or anything laughed that they have been added to the conversation if you have any final closing remarks very briefly. or you can pass. >> thank you for having me. in february, with the country little loss one of its great legal minds. it was a privilege and an honor to be able to work for him and in the supreme court for a year. his presence will be missed on the color and i think it really will be missed like in the legal field. i think lawyers have learned a lot from reading his decisions

and certainly not all lawyers are doing the supreme court decisions. he's had an incredible impact on the legal scholarship and on how lawyers are. >> in terms of legal academy in part to schumer's comment regarding why does it compare to the clerks in the folks who are more in his orbit. such a huge loss for someone who was an intellectual leader on the way up to in the law that i think a lot of us admired and learned a lot from. it was very jarring in february. >> i think to respond to that question earlier. there is a glimmer of hope in the supreme court. it would be just as scully is legacy and the fact that liberal justices do not pay attention and in large measure because it would hold them to it. we will miss that greatly. i think his legacy will survive. >> wonderful.

thank you, audience for humor in my polls today. please join me in thanking our distinguished panelists. [applause] and now i believe it is time for our next panel. which will be about the character of our political leadership. so stick around. thank you. thank you. [inaudible conversations]

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them. i think i have the right to say that. i'm really excited about this. as has been mentioned several times since we started today, this is an interesting election season. i think that our timing on this probably couldn't be better. though we really have jim rose bush to thank for this panel because he and i were on the phone nine months ago, something like that, talking about his new book, true reagan. this issue of the character and virtue of our political leaders had we were talking and i thought maybe i did the u.s. should on this. and so, thank you for certain spark in his idea that has grown from there. we were supposed to have a book signing, but there is a little mixup. if you are interested, and i'm sure you're going to be, we convert the book and he will sign them and we will get them to you. thank you

for being here. i am trying to encourage the boys to come to the classroom but all these women are intimidating and one reason i was interested in this panel is when i was in graduate school, studying the american wig society, debate society, what was then the college of new jersey and the reason they were interesting is they served as a training ground for young men who were going to serve in public life, debating and appropriate manner and they learned about composition and rhetoric and discourse and in many ways they were step one before somebody would go out into public office or public

life. things seem to have changed, we don't teach rhetoric in college anymore, we will talk about campuses in the next panel but it makes you wonder perhaps that loss has bred a different culture today. i want to let james give us a little background, have we ever had an era of political civility or is this more normal than we would like to admit? >> thanks for having me today. there we go. can you hear me now? thank you for having me. i have written several historical books on george washington and the war of 1812 era. a lot of things change in life. technology changes, communication methods change but the human heart does not change.

humans today deal with jealousy, despair, they want to hope and love and that is what you see when you read the writings of our founders. you see the same qualities. what i do think is different, there was a premium and a reward in society for virtue during george washington's day. don't know how many of you have heard the name charles lee, generally, from the revolution or horatio gates. what i found interesting about george washington is all of the generals who served him who were self-seeking, it was about their personal glory, they fell away. they rose up for a little bit and fell away. the people and men who put country above their own personal interests were the ones that lasted and we remember george washington because it wasn't all

about him. it was about the justice of the cause as he put it. he said he was not equal to the command he was given during the revolution, not that he lacked self-confidence but he wasn't self-serving. society valued that 240 years ago. not that there weren't people who lacked virtue but they weren't rewarded in the same way, they propped up people who had that virtue. abigail adams when she met george washington for the first time wrote a letter to her husband john adams and said i was struck with general washington. he prepared me to entertain a favorable opinion of him but half was not told. the gentleman and soldier, modesty marks every line of his face. his is a temple sacred, my hands divine. his soul with a guillotine at large is there. she was swooning over george

washington. to her husband. she was writing it to her husband, modesty marks every line of his face. he felt good about her. that is what his secret ingredient was. it wasn't about him. it was about you. that is something a little lost today in politics. >> you can pick up where jane left off, the first half of the 19th century you had the honor of working for the reagan administration and a lot of people in this room had a virtuous leader in ronald reagan and nancy reagan and i would love your thoughts on that. >> talking about washington, he accepted his responsibility with humility, gravity and inspiration and he was calling on his creator as he liked to

refer to god as the person who might be divine providence behind his role and he came to it so reluctantly. reagan was a person who because he discussed this with me himself and remember the humorous quips when he referred to the founders and it is true what thomas jefferson said because i knew thomas jefferson. reagan always used. and calling out graphically, the evil empire, but also in a positive sense. and the prophets, the patriots,

and speeches glisson, and building bridges to people who had gone before. and he was with the founders and they were by and large regardless your side of the aisle, you had to give cdit to the founders and as a result you gave credit to reagan, so reagan was harkening back to the founding principles of the constitution and he felt it wasn't about him. it was never about him and in those eight years as was said about reagan was not about reagan, it was about america and i like to say there is a big brand on his 4 head that said made in america, he cared more about america than he cared about himself and this was brought out not only in his writings and speeches the conversation and remember the plaque, the gift from queen victoria to the american people which by the way he never would have pictured putting his feet

up on the president we have had the past 71/2 years, disregard for the office and disregard for the desk, you can tell the history of the current presidency in a few pictures and that would be one of them. reagan had such respect but on that desk he had this saying there is no limit to what a man can do or how far he can do if he doesn't care who gets the credit. his comments, this goes back not only to washington but jefferson as well, you see strains of that in churchill as well. >> interesting when you look back on the republic, things were not necessarily that different, the perspective, joanne freeman who writes what she does about affairs of honor, this great line describes the earlier public as being filled with regional distrust, personal

animosity, suspicion, implication, denouncement and the tenor of national politics but sounds a lot like today and you wonder what is the big difference? we lost that code. what is so striking about today and then? >> thank you for having me and for this panel and the good work all of you do. i piggyback on some of the comments that were made. things were not profoundly different, go back to the election of 1800 between jefferson and adams, makes what we see today look like a walk in the park. it was unbelievably vitriolic and the historians of america said it almost tore apart the young republic and it did. and we did have something called the civil war as well so there have been times in american

history where it has been pretty raucous and nasty and vicious and that is not confined to america. you see it in the united kingdom and elsewhere. it is part of what politics has traditionally been but there are better times and worse times and we are in a pretty bad time, despairing time for a couple reasons. one, that i think arguments today for the good of the country, i think in many cases particularly in the case of the soon-to-be republican nominee everything is about him, to go back to what jane said. reagan, one of the extraordinary things was how so much of what he was was and what he considered america to be and what it could be. i think one thing that is different today than it was in the early republic is social media because the human heart doesn't change, sometimes the

ability to amplify and give voice and give shouts to the darker impulses of the human heart exist today in a way they didn't before so you see that on twitter and social media. in the past people have dark thoughts and nasty things to say. it was come -- some kind of social guardrail, cultural guardrail that kept people from saying those in fact, it was harder to do because people didn't have twitter and all the rest. today i worry that is being lost, almost as if it is now fashionable to go after people in the most ad hominem and meanest way that you can. we are going through a pretty ugly season. one other point i want to make,

a deeply conservative view, the human heart is divided against itself, a struggle between vice and virtue and darkness and light, in the gulag archipelago the line between good and evil doesn't go through society. goes through every human heart. that is a great struggle. what is different today in ways, different today than in the past the jane touched on. the expectations, what we thought was worthy of honor and virtue is something we upheld, that is what hypocrisy is, the tribute vice pays to virtue and there we lost a lot of ground. intellectually, nihilism and relativism that has taken place and in a lot of places people have imbibed this since that

morality doesn't matter, virtue, vice, everyone can make their own moral script in life and when that happens everything becomes up for grabs. >> it is difficult then to create the boundaries because if we all have a relativistic view of what is right and i apologize for that, what is right and what is wrong it gets harder, i thought it was interesting, there is a new book out senator trent lott and tom daschle wrote called crisis point, why we must and how we can overcome broken politics in washington and across america and what they point to is the loss of a sense of order, to gorham and civility in our disputes. we lost those boundaries. you might touch on what those boundaries are, it is not that we can't differ in opinion, the cornerstone of democracy, but what would the boundaries look

like? >> thank you for having me, glad to be here. i want to pick up on what the rest of the panel has said. mentioning the famous quote that hypocrisy of virtue. we certainly in our history have our share of hypocrisy. we have had people who have come before us, politicians, have said we just need a president as virtuous as the people, that was jimmy carter's pledge in 1976 and some of us thought that was a little synthetic but it was at least an acknowledgment that virtue was a thing we ought to be striving for. we do cross the boundary it seems to me when we move from paying tribute to the idea of virtue, however imperfectly we

implemented and actually embrace something else and what i see out there now is this appeal not to virtue but saying what we need are hard men, cruel men, people willing to take it to the other side, people who are willing to do what is necessary, the heck with the standards, the institutions, the things that used to inhibit the raw exercise of power. there could hardly be a more un-american or dangerous approach to seeking power in this country, exactly what our founders attempted to guard against, they understood individuals should not be entrusted with too much power because individuals cannot be trusted, they are greedy, power-hungry, they will abuse too much power if they get the opportunity and the whole federal system, the constitutional system of checks and balances, the electoral

college, the whole thing was designed to be sure that one interest would check another and one power center would be a break on the others and that is what we are seeing in this election being very much in question. we are being told if institutions are failing, or not that we should reform the institution and not that we should have better men in power, but worst men, we should have dangerous men, we should have cruel and unscrupulous men and that is the solution and that is dangerous. >> a great conversation up here and i think it is disingenuous to say we have to return to a period of civility in politics because even reagan said politics was the second oldest profession and he said maybe sometimes i think it is the

first. a longing for a day and time in history that was somehow pure and clean her in american politics is something we don't understand to be the fact but it strikes me in the conversation we are having that may be reagan set a standard those of us who are still alive to have experienced it or to know of it, i judging our time against so reagan comes in because having just spoken at the nixon library last week and seen the correspondence that is now unclassified between those two men they didn't just want to speak about reagan at the nixon library, thinking about these presidents that came up leading up into the time of reagan who knew reagan, corresponded with each other, you see this break of where reagan comes in and he

is bringing basically the character and belief system of his mother who was an itinerant minister and no one knew that. server several years when i give a speech about reagan's spirituality and faith and character people's jaws drop on the floor. why didn't anyone ever tell us this? it was in plain sight but reagan never talked about it but i don't want to go down that road. just thinking that maybe being out on the campaign trail as i am now, have been to 25 cities with this book since it launched on april 11th, there is this longing, it isn't so much take us back to this pure time in politics that never existed, that was maybe camelot the didn't really exist, not the kennedy era but the camelot that never actually existed but i think this sense that may be reagan showed us a way of character against which we are judging this time.

>> deploy your makes a little closer and turn them off when not speaking. i apologize. >> it doesn't poll. >> we are going to lean into that. this is an independent women's form events that we need to think about the role women and media have played in thi i wonder sometimes if modern feminism, contemporary third wave feminism has in some way fueled some of this. i'm sure i'm getting some horrible tweets right now but let me point out that in many ways we are seeking out the lowest common denominator and at the same time telling men to be exactly like men, the worst traits, we want women to be aggressive in a bad way and you kind of nder, there was a time

when this ideal of motherhood was prominent, the idea that women kept men focused on those republican values of virtue and public good, what has happened? are women to blame? >> disproportionately, maybe 52% of the blame. your comment about feminists urging women to be like men in the worst ways, one of the things i put in speeches is the second wave feminists were arguing not that women should be like men but they should be like the worst men and there was some of that but i think for this year we are in this really peculiar position, utterly bizarre where we have hillary clinton who is supposed to be the great avatar of feminist

accomplishment and is a poster girl for feminist success but her personal history is anything but that. she rose to power on the coattails of her husband, despite her disclaimers, did do the stand by your man thing, she did more than that, she disparaged and insulted the women who came forward to accuse her husband, as we now know a lot of these women were telling the truth so hillary clinton was an enabler in his misbehavior and so she was able because she was his wife to leapfrog to a senate seat and then to running for president and so forth so she really doesn't even represent what the feminists claim is there idea which is the independent woman who makes it on her own and blazing the trail based on her own abilities and

not who she is related to. so there's that strange thing and on the other side you have a person who calls it political incorrectness but what he really is is a jerk. he calls women pieces of you know, and describes them in the most vulgar terms and has made it very clear that he doesn't treat women with respect. this is not a conservative way to behave. this is a boorish ugly kind of fun house mirror version of masculinity. a person who is in my judgment quite insecure about his masculinity and feels the only way to feel better about himself is to put others down and

especially put women down so here you have these two choices. thanks a lot american primary voters. >> the want to respond a little more on this role women are playing today or in the past in terms of our civility and virtue? >> when i look at -- there we go, when i look at historical figures i am not thinking in terms of -- i'm looking at their original diaries and letters and trying to understand what made them tick. dolly madison ushered in a cultural change to washington dc 200 years ago. that was when the white house was burned, my next book is the burning of the white house and what i was struck by with her was she would write things like egotism is repugnant to me and i keep a diary because it is too me focused, you have to understand when thomas jefferson

was president, his vice president aaron for killed alexander hamilton in a duel. if you had a tif with somebody, sometimes it ended up in the dueling ground and people would shoot each other. that is a different culture than we live in with congress in some ways. thomas jefferson did not dare invite members of opposite political parties to a white house party. he was afraid of what would happen. he was a widow, he didn't have a wife, he dared not invite federalists and republicans as they were called back into mix. james and dolly madison followed him and madison is president and he says he and dolly decide we are going to change the culture. i don't think they said that directly but they recognized they could do something so they opened the white house to open house parties and set all of washington you can come by wednesday night, get some whiskey punch, come by and took

the risk of socially mingling with a republican and vice versa and did so in the presence of ladies and you wouldn't challenge a man to a duel in the presence of a lady. it changed the culture, the dueling culture died off and dolly madison was so pivotal in changing the culture that every woman who followed her wanted to be like her in the white house and so you see that they looked at the problem they had in society and washington specifically and it worked, it changed the culture. doesn't mean madison had an easy presidency, far from it. he had a challenging presidency. the white house got burned. it was not an easy time but you see how women were leading the way and dolly was so instrumental and after the white house was burned she realized maybe i have a bigger role to play than being my husband's spouse and she started a charity

for war orphans and let the women of dc in that work so i say all of that, there have been cultural changes before. i don't know what the solution is but you were talking about social media and the vitriol that comes through in social media. one thing i noticed in looking back 200 years ago is people would write opinion pieces in the newspaper but they wouldn't put their name on them. all the vitriol was there, it was just anonymous and that is how they did it. if you wanted to say something nasty about the president, call him a little viceroy from france or whatever which is what they called james madison, they published it anonymously and some of that came out of the revolution when they didn't have freedom of speech and that is how they took digs at the british government, through anonymous newspaper articles so we just now put our names on it.

twitter has your name on it so it changed a lot in that way but this is a historical perspective, the influence, the cultural influence that a group of women had that made a big difference in the way washington behaves. >> i think in some ways the political divisiveness we have, those are two different things we have political division and individual leaders, the character and virtue of those people but the divisiveness is not always all bad. when i think about it stems the flow of government and makes it harder to get things done in a way that i hope is good but we have two people who have served in the white house and perhaps there is a silver lining to the culture we have today. >> i will go first. let's see. silverlining, culture today. mona? i do think you need to

disaggregate this a little bit. there is divisiveness, what is referred to as gridlock, the political culture, the culture itself, we are talking about divisiveness in politics, nothing new, not even bad. sometimes you have competing ideas, ideas of justice and competing against ideas of injustice and ideas that advance the common good and ideas that setback, that advance human liberty and dignity and those that inhibit it. and public sites, ronald reagan was a deeply divisive figure, so was martin luther king, so was abraham lincoln, on and on,

those things are not bad. with the nature of those battles and was characterizes them and if it is drowned out in a sea of ad hominems, stupid and insulting arguments, are you actually talking about deep and important issues, one of the reasons, there are many, donald trump i find to be such an offense because there is no idea, no cause behind the man other than himself. this is a man with 8 narcissistic personality disorder, everything revolves around him. he doesn't have a political agenda, he doesn't have a political philosophy. that is a problem. he has drawn and pulled down this entire debate, not alone, everything mona says is right, hillary clinton has a lot to answer for but donald trump to a degree that is new in my life

has pulled the political process down and in the process is pulling all of the rest of us down with him. on the issue of gridlock i am not a proponent of gridlock. and in their infinite wisdom set up a system of government, separation of powers, to get legislation through. there is a lot of legislation that has gone through that i wish had blocked, but it wasn't. back to reagan again, mitch daniels was very successful governor of indiana, he worked in the reagan white house as a political director, and a wonderful guy, talked about how during a period that was under

assault during his presidency, would go in and mitch, being a fiery kind of guy in some ways wanted to fire back and reagan pulled him aside, we don't have enemies, we have opponents, that kind of thing matters when a guy at the top says that and that has a radiating effect. i work for presidents fairly closer, george w. bush whose personality was very much like that. there are a number of stories i could tell about the man's decency and civility, and you have got to have that. people have worked in the white house, when you are there and get the incoming, the attacks on the president, whether republican or democrat, are more ferocious than what the white house does in response, you want to defend the person you work for, not just because it is your

job but because you believe in this person, you believe in the causes they stand for and it is important to have people in your professional life and in your personal life who can check that kind of thing and make you think two or three times before you fire back, just like you in your own lives, there are certain notes, emails, tweets where your agitated and you want to say something and it is prudential to wait and think does this need to be said? given the nature of the ferocity of political combat it is very important to have people who are civilized, or decent, who are leaders because they set the tone and they can set the tone for good or for ill, we have been fortunate because there have been a number of people who have been president who were deeply decent human beings and the country is better for it.

>> what you speak to is the distinction between politicians and institutions of politics, of government. you see reagan as early as 1954, at william woods college where churchill turned -- coined the term the cold war, saying america is more an idea than a place and this is a theme he carries throughout his years of leadership and if you look for example at his remarks in the oval office after the korean air 007 downing that killed 266 people i am thinking about each of their 804, he refers the congress as the great deliberative body and then refers to in quotes from two democrat political leaders, reagan was a bridgebuilder and a unifier, and was absolutely what you were saying, we don't have

enemies, but we have opponents. reagan had more respect for the institutions of government which are actually carried out by politicians but if we keep our eye on the principles of government and the kind of overarching political personality, we are going to have irregularities. we are going to see that in lyndon johnson for example, i was at johnson library, the way he conducted himself personally and talked about other people, nixon did the same thing. it is not a lot different, the political mexican, and again, those leaders who were in politics but viewed with such respect the fundamentals of the

american way of life which is dependent on our constitution and forms of government, this is the real crisis we have today, almost humorous that people are oh how could you -- talk about the congress this way or talk about the media this way, the fact is the public appreciation for our colors of government it such a low web which is dangerous, not just that we have dangerous politicians but it is lack of competence in civic institutions that is so low that to me, we need to respect the congress, respect the presidency and those are things you really have to build, start building with young people who are our future leaders, that is what we are going to do. >> that is an excellent point and i would add that johnson and

nixon could be vulgar but did so in private. they would never have dreamed of doing it in a large audience or in public, they have a certain level of respect for the public that they didn't transcend in that way. maybe they did in other ways. i completely agree about the institutions, which is why also we have seen over the last 7 years of this president, one who doesn't respect constitutional limits has very few checks on him. it is quite difficult to rein in a president who doesn't have the self-control of a meta-rat -- leader who understands he has to operate within the bounds of constitutional authority, this president transcended those bounds whether it was rewriting obamacare or immigration rulings of clean air act, too many to

name. this is the worst time to say we should put someone in that audit -- office who doesn't respected and to the question we are grappling with in 2016 which is how to make a choice between two terrible options? i would, barring some third candidate who emerges, i would also take a page out of james's book, remind us about alexander hamilton, a great new show on broadway, i can't get tickets but hamilton, a huge opponent of jefferson, detested jefferson's worldview, thought he was completely wrong about the future of the country and what the direction of the country ought to be but because of a fluke, the 1800 election came down to a contest between aaron

burr and jefferson. alexander hamilton at that point said in this instance we have to throw our weight behind jefferson. jefferson who he couldn't stand politically but he said mister jefferson, too revolutionary in his notions is a lover of liberty and will be desirous of something like orderly government. mister burr loves nothing but himself, things of nothing of his own aggrandizement, will not be content with anything short of permanent power. he is in principle both as a public and private man, for or against nothing but as it citizens restore ambition, the head of the popular party and climbed to the highest honors of the state. he called the profligate, voluptuous, unprincipled and dangerous. i will leave it at that. >> we can open up to the

audience. i will leave you with one number that i think maybe we'll pull some of this together. 59% of respondentss claim clinton is not honest or trustworthy, and 50% say the same of donald trump. we really are choosing -- for the audience. >> i do a lot of research and focus group of moderate voters and ask them to sum up the two candidate in two words. unfortunate necessity, clinton, a woman with an advanced degree and she said ain't is not a word so eating and cheating. she was really angry. she said that for two generations she scarred the women's movement exactly for what you said, her personal life

and when it comes to the reagans, the reagan era when nancy reagan decided just say no, i was the researcher and told that a briefing to no longer do drugs and pretty social in the 80s but could not do drugs because that was the directive. if huma aberdeen can do this thing with her husband and the close date of the clintons people see this, they see the interaction, they don't trust her. what i find with people who voted for republican and democrat, different elections, presidential elections, they don't trust clinton but it is at a very personal level, mothers with sons, and virtuous, go down in history as having virtue and what we see now is what one of my focus group members said, unfortunate necessity, that would be the republican nominee. any comments?

i find this very interesting, thank you. >> i will take a swing at it. a person who was precursor to donald trump and darren berger. a general point, and never trump, i said that as someone who has been a republican my entire life, conservative my entire life, to say i won't support the republican nominee over hillary clinton is easy. in my discussions come a friends of mine say between trump and hillary clinton, he is not great but better than she is. what i found is there is very little difference among conservatives who are against trump and those who say they will vote for him on the

question of hillary clinton. i don't think anybody in this panel will rise to the defense of hillary clinton, i certainly won't. she has a horrible record, she has experience, experience is one thing but you have to have accountability. what are her achievements? hillarycare was political disaster, would have been a disaster, the foreshadowing of obamacare, secretary of state, you see this world in disorder and inflames and as mona said, this is in some respects one thing that bothers me most about her and the clinton machine, the way they went after these innocent people, women destroying them for telling the truth and calling out this predator in bill clinton so this is an ugly group. i understand that. the question where i have a point of departure with my conservative friends, the idea that things can't get worse, yes they can.

that is a deep conservative truth. i'm telling you if donald trump is president things will be worse. i may be wrong, maybe he will be president and we can replay this on c-span in five years and can people can look at me and laugh but i don't think they are going to. this is a man who is erratic, he and obsessive, and crude and cruel, who is obsessed with power and has no qualms, anybody can tell, about using power to try to destroy anybody who gets in his way. in his last week he went after a federal judge who made a perfectly legitimate ruling on trump university, gone after him because he is mexican. the way he obsessed -- just invoked it. the way he has gone after megan kelly, the way he has gone after his opponents, he mocks reporters p