choice. again we have once-in-a-lifetime opportunity to do. we are excited. what we are from president-elect trump that he wants to make this one of the big issues and we will be working for close with n and many of you to try to take the goal and to make it substantive. we don't want a repeat of what happened in 2009 which at the time a lot of the infrastructure investment which was not nearly the amount needed by the investments that would come with a lot of short-term projects your. ..

i know it's challenging because those may take place when they're not in office.

that's the leadership we need. eisenhower wasn't in office when the highway bill was fully implemented. we need to see a long-term bill that maybe it doesn't help you for your next election, but it's the right thing to do. we are committed to those lawmakers to make those long-term decisions. >> talk to us a little bit about the goals of the afl in trying to get something done to take advantage of this opportunity, and how do we finance this? how do we fund this? what is the scope of what we need and what you would like to see done. >> first i think we really see in this panel, an unusual sort of convergence of opinions from people on different sides of partisan divide, the business community, i will repeat it.

first i think we need to understand the scale of the problem. the american society of civil engineers estimates that are infrastructure deficit, our unfunded maintenance is three-point to trillion. trillion. it is not the full story. that really is about maintaining that inheritance that we got from our parents and grandparents. it's about maintaining the interstate highway system that goes through oklahoma city. it's about maintaining, but technology moves on, and if we simply maintain our inheritance, we are are not going to be globally competitive. the real target number for infrastructure in this country is wellin excess of three-point to trillion. we think 5 trillion is a good rough guess. it's important that we

understand that it's more than transportation. transportation is absolutely critical, but it's important that we think about our nation's infrastructure, communications and energy. as a full range of public goods that are critical to the united states being a competitive place to do business in the 21st century. if that's the scale, the second thing to understand this timeline. this is not a short-term matter. the asset that we need to construct, whether it's the repair and maintenance of our existing mass transit and highway system, the construction of the power transmission lines that need energy from places where there is wind to places where there's demand, whether it is our ports, these are assets that take a long time to build and last a long time.

we need to think about the financing in that frame, and has been alluded to by several of the prior speakers, in many respects, as a financial problem, this is not very hard. we have, in the bond market and the borrowing capacity, the lowest source capital in the world. there are people who are prepared to lend us the money we need to build the systems at extraordinarily low rates. we have programs that provide the fox ability the project sponsors in state and local government to get the job done. the idea that somehow there's a financial problem here that is unmanageable is incorrect. in fact, that idea is really dangerous because it leads to the notion that we need to construct our financing as well

of our infrastructure needs with ordinary business needs. the model that we've heard about , that we basically need to go out and find folks who are willing to invest capital that can be demanding high rates of return and paid for out of the user fees which has been talked about a lot and was at the center of the paper that the trump campaign put out about two weeks ago. that idea simply doesn't work. we can argue whether you think they should be privately held or whether somebody's going to be looting the treasury, but the fundamental fact is that the numbers don't work. these are public goods. there is no worry to get the user fees out of the highway system to pay for that finance structure. if we say that is what were going to do, then what were really saying is were going to

do nothing. we cannot afford to do nothing. now, i think you've heard from my friends at the chamber that in fact, we have the structure to work with. the question is do we have the leadership to lambaste the way we need to as a society. i'm an essay this by adding one more thing, this is really an area where there is enormous potential for healing in our country. there is enormous potential across the labor business divide and democratic republic and divide and many other divides. there is need for infrastructure in america. there is need for broadband in our nations inner cities and in our nations wrote communities. there is enormous potential for building better lives here, but,

it really saddens me to say this. i had no idea i would have to say this at this environment. >> we had a prior question that must be answered to have any kind of meaningful conversation. yesterday, i beg your indulgence for this, but i just have to say this. yesterday i went to church, 2 miles from my home in suburban america, an episcopalian church where someone had sprayed on the walls of the church trump nation, whites only. the episcopal bishop of washington, in this church service as that our president-elect specifically denounced the people who did that. we cannot have this type of conversation as long as that question remains unanswered.

>> we are obviously very empathetic to that and totally understand that. this country needs to come together and it seems to me that working on issues where we can find common ground is probably the best in the first place we should go so perhaps a little cooperation all across the board might be helpful. before we go to questions, let me ask you, i agree the process and some of the money is out there, but how do we get there? does anybody, do you believe that some type of income tax or tax reform is a way to try to jumpstart the issue? >> it could be one way. i think it's very unclear about what the actual way were going here. i think there's a lot of ideas

that have been thrown out from the trump transition team. tax reform is obviously something that mr. trump has talked about and we know paul ryan has talked about. the challenge with that is not a lot of people are for tax reform and they talk about the particulars of tax reform and it kind of gets more challenging. the other challenge from an infrastructure standpoint on tax reform is there's about 14 different ways to repatriate. we don't see that as a long term sustainable funding source. most of those proposals are one-time inflections of money and we don't think that's what we need right now. we need a long-term sustained funding solution so mayors and governors know what they are going to get from their federal partner for good. of time so they can make tough decisions locally and make the proper investments in infrastructure. we don't just need a couple hundred million dollars in saco

added, best luck. we need to make a plan that says were making a major investment. any kind of economic recovery plan has to include a major investment infrastructure. >> that's true. >> last tuesday, over $200 billion in state and local referendums passed. if you tell a city or county what it is you want to build and why you wanted to build it and they can see it, over 70% of them pass every election. your thoughts on that, is that the wave of the future? do we have to keep doing that? i am heartened to see that, especially since, in this region we need, like most major systems like ours, a dedicated funding source. people are willing to make investments in public

transportation to make their lives easier, and that's what we saw around the country. we are a little different in that our system is supported by free jurisdiction and so we need to come up with the regional way to make that investment. i don't have to tell you, it's already been said that the deferred maintenance, the maintenance that we have foregone on that system is going to cost us many times more than if we had that dedicated funding for the years of metro history. i think that's heartening. also, people are smart. they see the gridlock on our streets, especially in metropolitan areas where people are flocking to cities. they know if we maintain our growth, we have to take advantage of our entire system so that is public transportation. that's biking and bridges. i like to use an example that is

emblematic of what the federal government has failed to do. we have a bridge that passes between the district of columbia in virginia. it belongs to the federal government. all of us have been fighting over who's going to fix the bridge. it belongs to the national park service is. the met national park service has a lot of bridges across the country that are in similar disrepair. the leadership, i can agree more that a lot of these questions are about leadership, and i just had this discussion recently with my chief financial officer. i want to ask my colleagues in maryland and virginia, the voters in the district, they will have faster voters to do something that none of us may be around four. none of us. when the real bill comes due for metro, it's going to be five or six years from now, but it is

coming due. what are we going to do to say right now, even though i may or may not be here, i may have to ask some tough questions to get additional revenue to fix it, but all of us have to say, this is what i'm saying. i want to be the mayor that works with these governors to fix it. not the next one but these governors to fix it once and for all. i think all the members of congress, when it comes down to it, when we are talking about our bridge that connects washington d.c. in the commonwealth of virginia, that no, we don't have two senators, as you know. i'm just saying. >> i talked to their senators and may have to talk to their governor, but everybody across the country is kind of scrapping for that same bridge reconstruction. we do really need a plan. if i can do it for my infrastructure in the district,

certainly we can expect that of other federal agencies to say these are the priorities that have to get done, but starving the national park service is not the way to get there. i would like to add an additional thing to what we've heard. i would like us to think of affordable housing as a critical part of our infrastructure as well. as affordable housing crumbles in cities, they just change the character of our cities. the federal government has been a partner, less so recently and i expect moving forward will be even less involved in housing, but for the affordable housing that has been supported by the feds, we like to approach away to keep it affordable. >> you mentioned the voters willingness to pass taxes to pay

for infrastructure. generally that's true of it's not an increase in taxes. if it's an increase, it's much tougher. there's a couple evolutions that affect the built environment. one is health. i think we realized that the environment affects health more than we realize. we've read designed all of our downtown streets and created the city around cars and now we're redesigning it round people to be more pedestrian friendly and bike friendly. we have rebuilt our entire downtown grid. we are also about to break ground on a streetcar system, and none of that increased taxes. in fact, we pay tax tax. there was no debt created. we are willing to invest in things, but if you want to increase their taxes you have to have a compelling argument and if you have a funded opponent, you are probably just wasting your time. >> two things, one, i tried to expand the list of infrastructure categories, and i

did an inadequate job. the labor movement has been funding affordable housing for a long time. it's all in partnership in one form or another with the federal government. the point is absolutely spot on. in addition, to talk about parks, the the park service and recreational facilities are part of our public goods portfolio. they have a lot to do with health as our colleagues said and i think educational institutions are also part of this landscape. the financing challenge really is, there's a couple of tricky things here. right now, there's been a big push by a small group of companies that would like to use this, use this challenge as a

way to get a huge tax break for their offshore operations. now, of course there are ways and doing it which would actually be fair to the companies that create jobs in america, who pay the full tax rate, and there are ways of working things out, but we have to be very careful because they think if there's one thing this election was in a clear mandate for was public policy that did not incentivize a movement of u.s. jobs offshore. there are ideas out there that are actually trying to weaken the system of the united states and subsidize off shoring. that strikes me as something nobody voted for. the challenge here is, for political leadership to support financing vehicles both at the state and local level but also at the federal level where there is more flexibility than there

is at the state and local level. that can genuinely fund long-term infrastructure investment at the skill we need. in terms of a couple of years, this is a critical opportunity for real political leadership. we will pay a terrible price if instead we push this further and further down the road. >> we are literally out of time. who has a question or two? >> hi, my name name is ben with metro lab network. i was struck after this election by the urban rural divide in terms of candidates and we now have a situation where both the executive and legislative branches in congress have been elected by overwhelmingly rural and postindustrial voters.

i also look at the republican platform and it talks about how urbanization and social engineering. i would like to hear from the mayors, both democrat and republican about the future of urbanization in light of the new administration. >> not too many people live in rural washington d.c. >> lucky. the role urban divide israel. it has been well chronicled and it plays out in our state legislature frequently, but i'm not seeing a disconnect. i'm not seeing any thing that says they're not for infrastructure. whether the talking water or rotor streets, i think it's universal. there's reasons to be for or against things but i don't think this is going to play out on infrastructure, and i should probably add, the advent of the autonomous vehicle is probably

going to have more to do with change in the environment than anything we've encountered in our lifetime. that's just around the corner as well and that will affect rule and urban development. >> one of the opportunities. >> can you identify who your left. >> one of the opportunities that is prevented with this infrastructure is an opportunity to really reimagine local empowerment and state governments, we understand that president-elect trump is not necessarily looking at the feds to be may be the leader on these and there may be an opportunity for state and local opportunities. is there, there are 36 governors six governors who will be up in 2018. as they were talking about, the relationships that are required, and damon talks about the opportunity that's created and that's just thinking about common ground.

how do we really have a conversation about the regional investments that can happen that really support the small towns that are around the bedroom communities and some of the larger communities,. where is the innovation? >> i think one of the things that your question raises, your question raises a lot of things, i'm mindful were at a time, but, one of the thing it raises is the role of state and local government and essentially helping to shape national policy to support national and regional plans. this is something we very strongly believe is necessary

and its way of sort of bridging some divide that seems particularly deep in washington and may be less deep, federal washington, and more reflect the ways in which our people live together and come together in the areas we live in. i would just suggest that in addition to this, we have to think about the impact of infrastructure in our communities that we have a lot of people in this country who have been left out of economic growth in the past 30 years in a lot of different ways. people in our inner cities, people in our rural areas in the industrialized part of the country, the critical question

whether or not infrastructure will reach them. if not, these communities cannot participate in the global economy. it is does not going to happen by accident. it is also, this is deeply and profoundly related to how our workforce policy relates to infrastructure. what kind of jobs are we going to create. who will be trained? from the labor movement's perspective, and this is critical to building common ground that our infrastructure agenda have the labor protections for training in inclusiveness that will result on all the good things i just mentioned happening. it will not happen by accident. public goods will respond that somehow we will create them as in the same way. what will happen is that we did

not create public goods for three years. >> if you go to any community, transportation is one of the top they want to know that there is viable transportation option. it's not just transit, it's a variety of of options available. we talk about this divide. i think there are a lot of places around the country, i think at the ballot initiative, there is a union involved in the coalition to get it approved, there are businesses, this is a partisan issue and for me immunity's to succeed, they need to have transportation as part of their court sentiment.

we heard the president-elect say he wants to rebuild the inner cities but we also know that a lot of his support within rural areas. this is a place we can bring everyone together and provide toolkits and opportunities for them to succeed where maybe they didn't have those tools a few years ago. >> unfortunately, we are now ten minutes over so i think you can see there is a lot of questions about this, and we would be happy to do something like this again. i didn't even get to my favorite subject of high-speed rail. we hope that you will give us your feedback. we hope that we can do this again and i would like you to help me think our panel. [applause]

>> ladies and gentlemen we will be back momentarily. >> president-elect donald trump has filled a couple key positions in his administration. he picked alabama senator jeff sessions. mike pompeo is cia director and michael flynn will be national security advisor. the top democrat on the senate judiciary committee which will

review, dianne feinstein said senator sessions has served on the senate judiciary committee for many years so he is well aware of the thorough vetting he is about to receive, and while many of us have worked with senator sessions closely and know him to be a staunch advocate for his belief, the process process will remain the same, a fair and complete review of the nominee. while senator sessions and i differ on a great number of issues, i am committed to a full and fair process. early next year you will be able to watch live on uninterrupted coverage of confirmation hearings on c-span and cspan.org. you also be able to listen on the free c-span radio app. meanwhile, meetings continue in trump tower in new york. you can see the elevator can live on our website c-span.org. earlier today mike pence stopped by the camera.

>> it was great working with the president-elect. he is a man of action. we have a great number of men and women who have come forward and i am humbled to be a part of it. [inaudible] >> this week the supreme court heard oral argument into consolidated cases brought in by the city of miami against bank of america and wells fargo. they argued that under the fair housing act, they were involved in discriminatory mortgage

practices against latino and afghan american home buyers. >> sebastian mal b talks about the life of a federal reserve chair in the man who knew, the life and times of alan greenspan. he is interviewed by the senior fellow of economic study. >> alan greenspan had an unusual up bringing in the sense that he was raised in the 1950s and was was the child of a single mother. his father left his mother when he was only three. he was then a distant figure who was unreliable with sometimes say he was coming to see his son and then not show up. that was him to live inside his own head.

thursday night, go to "after words". you can go to c-span.org for that. >> might not washington d.c. law firm where legal analysts are going to discuss the senate's constitutional responsibility concerning presidential judicial nominations including those to the supreme court. the constitution project is hosting this event. analysts include new york times legal reporter and a former law clerk for justice alito and the law professor. it should be getting underway in just a few minutes.

good afternoon. i want to welcome you to the constitution project. we expect that we will be able to continue to fund this over the next four or eight years and beyond. we are glad to welcome you here today and we are certainly glad to welcome our panelists for what i know will be a great discussion. hopefully you have picked up the program before you came in here, and with that, let me introduce adam who is the reporter for the supreme court from the new york times and thank you all to our panelists for joining today and thank you also to mayor brown

for his wonderful lunch that they provided all of us. >> hello and welcome. we live in interesting times. we will focus on one aspect of the volatile government that we live in and the supreme court and maybe conduct what i think to be a postmortem on president obama's nomination of his nomination of judge mayor garland and the one or more nominations that donald trump will have for the supreme court. with me to discuss all of this are too lively and influential thinkers and riders. on my right is ed whelan who is the president of the ethics and public policy center. he is a widely read blogger who contributes to the national review spends memos and he has served in all three branches of ever meant as a clerk to justice anthony scalia and as general

counsel. he is a graduate of harvard law school. steve is a law professor at the university of texas. he writes for both academic and popular audiences and contributes to cnn about the supreme court. he is a graduate of the college and law school and has served on two committees, circuits. he's also a supreme court fellow here at the constitution center. let's look back on the garland nomination. in my correct that we are looking back on it. i get a lot of emails and op-ed saying there is still something president obama do. is there anything he can do to put mayor garland on the supreme court? >> no, i think the nomination is basically dead. >> i think there are legal

things he could at least attempt to do between now and when the senate ends on january 3, but i think it's not point happens. >> what might those things bequest mark. >> there is a moment when the senate will be in recess, where president obama could theoretically reset the nomination for the supreme court. there are some weird procedural moments. i think ultimately none of those will happen. >> apart from the fact that president obama would not be able to do a nomination in that moment, the supreme court has said that generally a reset of at least ten days. i don't think that's even a longshot possibility. >> this is all sort of fun and frivolous. >> let's assume that nomination is dead. let me ask you a couple questions about it. there has been some talk that it

violated some constitutional duty. any truth to that? >> i think that argument which has been rejected by folks on both sides of the ideological spectrum is clearly wrong. i was at an event yesterday with former obama white house counsel kathy rummel are, and she acknowledged that if the situation were reversed, she would've recommended the senate democrats take the same course the republicans took bread she didn't have in mind that she would be recommending them constitutionally. there are some things that apply to all officers. to turn a nominee into an appointee, he says nothing about how they should exercise their advice and consent power. throughout history, on the full range of officers clause, they

have routinely killed non-agents by by inaction. some of the folks were now making, the argument is unconstitutional have supported actions like that in the past. this is not an argument to be taken seriously. >> let me broaden out the question a little bit. i'm guessing you agree there is no constitutional, is the supreme court a special case even if it's accessed directly for lower court appointments or other kinds of appointments? the senate has withdrawn its consent. >> i think the answer is yes. if i may, the title of this event is constitutional prerogatives or prices. i think the answer is yes. that is to say, i think there's no question that ed is right on the structure of the constitution and they have the right to withhold their consent as they have done between somewhere. that's fine.

this is not those. the nomination will have been outstanding for 250 days. the previous record was 125. for one single nomination, one single nomination, and oh by the way, that nominee was confirmed. i think it's right that there is no right on the part of any one president or nominee to a confirmation process, but there is more important interest, i think it's a really fragile and important point to make. the supreme court has this power , not from some official mandate, the power does not come from article three. that's where its jurisdiction comes from parents power comes from the fact that we generally perceive to be an institutional institution that is not blatantly political. it shows some respect for traditional power and responsibility and that's why we have things like the doctrine.

when the senate holds the seat hostage, on the express understanding not that there are concerns about the nominee, but simply because of a political calculation that they want the president of a different party to fill the seat, that crystallizes the supreme court as an issue of political power. it has the potential to radically change the supreme court's legitimacy. not tomorrow, not next week, but if this goes on and it comes to the point where the supreme court never viewed them as anything other than an instrument of political will. >> with respect for whole numbers, steve's point has some force that if you make, what is

at least in part a political argument about the court you may do damage to the court's reputation. >> i think think it's important to distinguish between political arguments and arguments based on understanding of judicial philosophy. i have a great deal of respect for mayor garland. i've never said about word about him and i'm not going to accept that he is a moderate liberal and that is a sufficient ground for senate republicans to say no, not on our watch. just again as former white house counsel kathy acknowledged she would've encouraged senate democrats to do the exact same thing. it's a situation that was reversed. i don't think that's treating the court as a particle institution but i think it's taking the constitution seriously and what could be our highest duty but to confirm to office only people who they think will construe the constitution properly. look. what has happened this past year was baked in the process over the last few decades. after all, i was way back in

1992 that then senate judiciary committee joe biden threatened to take exactly the same course of action is a vacancy arose in an election year. the only reason it hasn't happened up till now is that all of the vacancies and spent have first of all been in situations in which you had a president making a nomination to a senate controlled by the same party as the president. you haven't had this partisan conflict, ideological conflict between the president and the senate and you haven't had any vacancy arise in an election year since 1968 when the nomination of thornberry were blocked by the senate then. >> you mind if i say quick few things in response? >> it's worth stressing but i think the rewriting history a little bit by saying that it has been ideological. there were leaders at the

republican in the senate that say before he was nominated that they would oppose any nominee regardless of who it was, not for ideological reasons but simply because they did not want president obama. >> i think that's based on the assumption. >> if president norma obama is not going to nominate a conservative for the court. >> in 1988 he was nominated within a year of the election. it wasn't the election year, was a month before the end of the year. why should that be different. >> the vacancy arose in june june 1987, nearly a year and a half before, they're trying to rewrite history, not mentioning talking about the vacancy, my point is just the nomination. anyway, the larger part of that that this is all okay because democrats have done it to is

exactly the wrong way to look at this problem because at the suggestion that it's a race to the bottom. in a race to the bottom where whoever's in power is going to use their power to deny to the other side what historically, then the institution that gets lost at the end of the process is the court which is to say sure, democrats have said things that i think were irresponsible. that's not to condone, it's just that we've lost sight of the importance of trying to keep the court. >> do you agree that they would've done the same thing by showing the other for? >> i don't know. it would've been interesting to find out. again, that's to suggest that there's something fundamentally wrong about a world in which the reaction to the supreme court vacancy is to maximize the ability to turn the court in 12 clinical institution. here's the problem for to talk about history. why does the supreme court have nine justices. it was at that in 1969.

congress tried to take seats away from andrew johnson to basically keep the court out of reconstruction and took the court a long time to recover the credibility and the power and procedure lost. but we're looking at now is any mechanism of power, any leads that congress and the point to four nominations for the supreme court will he deployed on the ground that everything is okay when it comes to the sprinkler nomination. at the end of the day, working a look back and say everything that happened is independent in our system. >> i think you're getting lost in process. to clarify, my position is not the justification for what republicans are doing is that the democrats put it on the same. think that's true and it's important to keep that in mind that the deeper.is what we're talking about is a long-term battle over judicial philosophy, over different understandings of

the constitution, over the role of the supreme court. now for decades, there has been a view of the constitution, so-called living constitution. if you want to talk about how to destroy the supreme court as an independent constitution, it's the living constitution that best implies that. what that fought against is that very notion. we have to worry about what happens in the process. the bigger question is debate. >> this is the court that over the last eight years has given up. [inaudible] one of two things is true, either the court legitimacy

comes from the fact that it actually does not have one dominant view of the constitution but in fact the court is not simply beholding to whatever one side says is right for the constitution or it's simply a byproduct of proof happens to fill those seats and in that case we shouldn't try to pretend that it's about law and not politics. i really hope it's the former of those two things. and if the reason why people follow supreme court decisions they don't agree with, whether your least favorite decision of the day, why'd you follow that because you think the court is not political. i guess i get very nervous at at of suggestions that at the end of the day we can hide the hind what is really a political endgame. >> i went to ground in the

current reality a little bit, but as you reel off those cases, those are all the same coalitions with justice kennedy swinging back and forth. it's not a very good argument that it's not a political institution. >> i don't think that's right. i will try to take. [inaudible] the decisions have been generally perceived as in line with public opinion except for when there were reasons not to be. my point is simply that if the next nominee or nominees of the supreme court are perceived as being there simply because the republicans won the senate and the white house in the 2016 election, i think that demeans the courts institution and i think it incentivizes similar power grabs. if chuck schumer turns around tomorrow and says i will not do

anything in the senate by unanimous consent until and i must donald compromises on nominee, i suspect there will be folks like ed, maybe not add complaining that that's an irresponsible use of power by the senate minority leader. it's the same problem, it's a race to the bottom. >> let's talk about the trump nomination. he haseleased a list of 21 potential nominees. he has bowed in a simple declarative sentence that he will choose only from among them and should we take him at his word and is there a way to characterize 21 names. is there a theme that runs through? >> i don't pretend pretend to have a full read on all 21 candidates on the list. there are handful that i know very well and some others that i'm familiar with and some i haven't heard of at all.

some folks i'm not sure should be on the list, others i wish were. look. i think you have folks who have strong credentials and have earned respect across the ideological spectrum. i think overall it's a very good list. i think many of us here will help him do so by working for confirmation of the good nominee i thought at the time it was handed down it was meant to be read to conservatives as a kind of folks you would want to replace justice scalia on the supreme court. these are folks with just consisted credentials but many are judges.

there is very little on the list that was diversified. >> there are nine supreme court justices. there are a lot of people who did not go as any single city justice went to harvard yale school as he did. there are other law schools in the world. >> if you want diversity, are you looking for politicians on the supreme court? we don't want the court to look political. i would think the judges would be the natural place to look. i think some of the most successful justices have had political backgrounds. the point is not. [inaudible] it's what did they do while they were on the court. they act as politicians are judges. the court is actually remarkably on geographically diverse.

you can see a very different pattern in this country where the justices come from. >> it does reflect that kind of diversity. all the sitting supreme court justices have said either on the ninth circuit in california or in the northeast, and with one next reception on the list of 21, there is nobody who sits in any court on those places in the one exception that on the court of appeal for the armed services. >> i think it's a pretty unsurprising list, i think given that it's for justice scalia opposed to a seat that's more in the middle, i suspect that it's perhaps not going to promote provoke as much matter what you think about timing, when do you think we will get a nomination, when you think we will get a confirmation hearing, when you think we will get an appointment? >> if i were the trump team, and i'm not, look, there's no reason

to rush. i've been saying for the past eight months, nine months that there's no crisis within the court. i continue to believe that. the key is to roll things out smoothly and properly so i would be surprised if there was some sort of naming of the selection wellin advance of the inauguration. president-elect trump could name his election tomorrow. he can actually make a nomination until he becomes president on january 20. i would guess, if they want to have their whole team in place to defend the nominee, to work the hell, i would think they would probably be shooting to make a nomination in that first week of the new presidency. by the end of january with the hope that the nominee would be

confirmed in time for the oral arguments in march. >> i will say i disagree with the view of the court, i think the justices do as well, not from their public statements, but for example there were three cases but the court was sitting on the have been fully briefed and are ready for scheduled argument that have not been scheduled. i wonder why they're not scheduling those three cases for argument. they are way behind in france compared to prior terms. i don't think it's because they aren't there. >> i might think that it might start to look good to you, but that's not what i'm hearing. >> i have have to separate out my personal preferences from my analysis of the supreme court. the supreme court's role in the system is not as advanced by eight justices. it is advanced by nine justices. the.

but i prefer them to almost anyone else on the list of 21, politically, yes. institutionally, absolutely not. >> i didn't say that it has no impact on the work of the court. i said it's not a constitutional crisis. the fact that there may be three cases in which the court's differing argument, argument, i don't think that's a constitutional crisis. >> of things had gone differently for the presidential election and if the senate were holding an open seat open, would you have been set it was closer to a constitutional crisis. >> the court is fine with eight justices. i don't think this is a significant issue at all. >> i disagree. i think there are two very obvious problems within the justice court. one we have seen which is the inability to actually resolve cases that are four - 4 for ideological or other reasons. i think the reason we have the supreme court in the constitution is because of uniformity first and foremost over everything else with an inability to resolve. >> if that's the reason we have

a supreme court, why doesn't constitutional say that they have to do a grant review. why hasn't the supreme court said that itself. the supreme court routinely denies lots of cases in which there are circuit split. >> i'm happy to have the court make the choice as opposed to the president and congress. >> it sounds like steve, you are not expecting, let's assume a conventionally, highly qualified candidate who is also, by most accounts quite conservative, what kind of democratic response do you expect? >> i don't know. i think there are too scenarios and it's not yet clear to me how it's way to play out. the first scenario is the sort of hostile reaction scenario which is in response to what happened to mary garland, democrats blocked all is shots. they also invoked the filibuster and dared them to use the

nuclear option. i think the scenario is someone who does not seem that radical of a shift from justice scalia to hold fire for the next appointment, basically, actually not go to the level of senate republicans over the last year and have a real serious when may be a voted against nominee on the yard, but in a full vote that's not filibuster. i don't know. i think those are two options that are probably being discussed among the democratic leadership in the senate as we speak. whether the change in leadership of the judiciary committee, of the democratic members will have an impact, i think that is yet to be seen. if the democrats were to attempt to filibuster, what you think you think the republican response would be. >> the republicans would do exactly what the democrats did three years ago to the filibuster of lower court nominees and executive branch nominees. they would abolish the filibuster. that's one back a few years. i think it's important to

understand what happened back then, especially in light of recent efforts by senator schumer. three years ago in the space of a very small number, senate democrats said no more, were going to abolish the filibuster. now republicans had undertaken to do the same thing back in 2005 when senate democrats had first launched their campaign that filibusters against lower court nominees. >> but, they ended up not going through that in 2005, but in faced a much smaller number of filibuster efforts. harry reid nipped the filibuster. at that time, there was planned parenthood and other groups according to widespread newspaper reports. we are very concerned that the

filibuster not be abolished in the abstract for supreme court nominees because they were worried that might play out in practice in a way that would make it easier for a republican president to get confirmed with an anti- row nominee. that is the reason that the senate democrats left the filibuster in place for supreme court nominees. the thinking was, let's wait until we are in the midst of battle and then will do it. >> the other day, i don't know if this was in the spirit of bipartisanship that they left the filibuster in place for supreme court nominees. harry reid, over the the past couple months and other democrats have made very vocal statements saying that of course they're going to nuke the filibuster for supreme court nominees of hillary clinton as soon as senate republicans asked to filibuster.

i think that republicans will act in kind, if and when they say democrats choose to push things. >> i will say, i don't think it's about who started it. i think the answer is yes. if we want to talk about lower court judges, let's talk about it. for all the attention that's been given to the scalia and garland nomination, there are 102 pending vacancies in the lower court today. for the end of the second term of the two term president, that's unprecedented. 3232 of those have been classified by the u.s. court not as partisan entity but as a emergencies because of the pressure they place on other dockets on the rest of the court so this is not just about the supreme court. this is about denying to a democratic elected president, a two-term president,

the opportunity opportunity to fill the court. : >> because they're not the ones with pressure. >> i don't have the answer to your question. i'm sure there was some but again, what happened back in 2007-2008 when president bush managed to get some nominations come from, the white house caved. they had history of giving into senate democratic candidates. those with the folks were nominated. president obama, praise it or criticize it, hasn't been willing to strike deals. >> i don't want to go through a list of the 59 pending

nominations. >> thank you. >> i will say briefly i think it's hard look at the list of 50 but as the 59 most judicial -- that's a much more compromise less than you might think. >> in many ways slice and dice, whatever it's about the lower court let's focus on the supreme court for the time being. >> the stakes may be perceived to be a little bit lower for the justice scalia see because broadly speaking we expect a conservative to replace the conservative and returns to the status quo more a list of a new. is that broadly speaking correct? even if broadly speaking correct, is the more nuanced view about replacing someone of justice scalia's stature? >> i do want to be too much trust house's democrats. the john stephen is give it is a reasonable one.

in terms of whether whoever is elected will be like justice scalia, that's, you know, huge role to fill. the supreme court has dealt with a lot of difficult issues. a lot of challenging questions statutory and constitutional methodology. now can expect anyone to hold the same set of views, the same results across issue after issue after issue. justice scalia reached liberal result, a whole host of areas, criminal procedure, for example. food is what some folks on the list might lean the same way, others might go the other way. there could be some areas where the be differences. i don't think those will likely be the areas that are of particular concern to democrats. >> i think that's probably right. i wonder if the concessioconcessio n judges are

going to hold different views and so was inconsistent with this one conservative vision of the constitution which is been pushed but all the recent nominees. i do think that the criminal procedure area is why think is perhaps the most room for movement. there were a series of cases forgive which rival file. he was the fifth about joining the more democratic -- >> the numbers are quite large in criminal cases. there are 25 cases where justice scalia is in the majority and a i-4 case case voting for the criminal defendant. >> i developed the fourth and sixth amendment he was a little responsible for the competition clause. i think it's possible that a nominee with on the list or not on the list could perhaps be more consistently pro-government in that area than justice scalia was. but like i said i'm not sure that would be the wedge as compared to, say, so the michael

vick seat opens up on the court. >> so let's imagine ourselves back in that era that existed since justice alito joined in '06. justice can be in the middle. arkind of cases on the docket nw or on the horizon where we might see some movement in major cases because we are back in that area? >> so i mean the most obvious candidate will be mooted which is attention to case out of north carolina. which is all about a department of education interpretation of the regulars which the new department of education can simply rescind. i do think there are some hot button issues on the way to the court, folks who live in my national security universe there are a couple of recent decisions in guantánamo cases that will put guantánamo back on the courts radar. i don't know looking at this from their obvious standout examples.

>> trinity lutheran, not scheduled, by the case where the -- >> although on not sure it's 5-4. spirit last you read a couple major 4-4. when an immigration. i take another case with a top administration doesn't need to go to court because they can just change the regulation. >> right. i savickas will simply die away. >> what about friedrichs, the public in case, the first amendment challenge? that went off 4-4 and versions of the case coming back. one could imagine that is resolved. >> right. that is i think you would need as your question indicates entities to come up to the court but if there are those in the pipeline, i think justices could be very ready to grant cert and decide that case. >> the last term, the passing of

justice scalia was the dominant story but not far behind it was that very surprising to me at least leftward movement of justice candidate for the first of his great votes to uphold the affirmative action program. the same justice who is in the majority in carhart jointed justice breyer is very powerful reintegration of a woman's right to choose. friedricfriedric hs i think is perhaps the counter example. i think this is why perhaps it will be quite as much blood spilled over the scalia see because of the next day because i think a list of the moment justice kennedy has this date a little farther to the left and he been a blast previous years. it's going to take a fifth vote from someone other than kennedy to scale back on those cases. >> i think you're quite right that there's been to the surprise of many a move to the left from kennedy. do you have a theory?

>> if i were being obnoxious i would say commonsense. [laughter] but i don't know, adam, annotate to speculate. it's been my experience of trying to teach justice kennedy. as the captain sisson casablanca, he blows with the wind. there's a lot going on behind the current conditions. i do wonder though if the specter of the trump presidency which he was a think about lester but is very much thinking about now might further pushing and, frankly, chief justice roberts to be especially thoughtful and careful about question separation of powers, about question of discrimination in ways that is really six to eight months they might not have been. >> you have a grand unified theory of anthony kennedy? >> and if so could you teach it

to mike, law students a? >> i can't say publicly. look, i think that, look, i don't dispute justice kennedy has move further left in recent years. i think the genesis of this way back in 1992 at the heart of liberty, the ability to define a content of one's own existence, of meaning, finish of the universe or whatever this is a. this sort of fortune could you understand of the world, who knows where it might lead. i think there's a lack, consistently been a lack of rigor. >> i do think it shouldn't surprise us that it is in some ways reacted to a perception of how well the institutions of government are working. there's been a lot of question about why, for example, the sprinkler was so active from 2004-2008 in terrorism cases, pushing back against, for example, guantánamo military commissions, things of that nature then sort of step back in 2009-2010.

i don't think it's crazy to speculate that there was some sense that by, separation of powers problems they could lead to more individual rights question for the corporate one wonders if we see some novel and new separation of power issues in the next administration if a similar coalition might reemerge on the court. >> so i think we have a general consensus that the next nomination is what is going to change the world. but we may have further nominations under the trump presidency. which was my builds be? >> look at the demographics, which obvious they are not one of% reliable but you would expect the next vacancies to come from the three oldest justices. justice ginsburg is add. justice kennedy is 80. justice breyer is 78. so those will be the most obvious. i have in mind also that the senate which looks like you'll

be 52 republicans, 48 democrats is very likely to be secure in republican hands after 2018. in 2018, 25 of the 33 seats up for election are currently held by democrats. so my first turn or otherwise volatile democrats. >> the republicans are not exactly a blue states. >> here's what might happen over the next two years. the senate will swing dramatically into democratic hands of my point is it's reasonable to think we're looking at that's not what happens over the next two years, not what happens over the next four. i think it's a good that you will have one or two additional vacancies during that period. >> if i can be morbid imagine the question, if it's a vacancy to the right it will be voluntarily, justice thomas. is involuntary, actuarial tables are what they are. i think it's much the same that happened with justice souter and stevens stepping down.

i guess you were what justice thomas might actually be perfectly happy to stay on the site in the next couple years especially if he is confident his successor will be some who shares many of these commitments. i did any of the three justices asked me to believe by choice between now and 2020 election. >> of what surprised me greatly if justice thomas would step down voluntarily spent let's test that. you say if the court if you does political, it's authority diminishes. yet the justices do when they leave voluntarily seem to make an effort to lead under a president who shares their worldview. isn't that in cuny a political motive to the court's? >> it is to the justice but, i don't want, i would help folks don't get me say that the court out -- that the cortisone of a political. that's not what we know are what we should hope to be true. it shouldn't be beholden to

political process. that has been the transistor at that's what is in jeopardy. are the politics behind the decisions of justices may have? just the are their politics behind the choice of presidents make about who they're going to nominate? absolutely. that's always been true. those two things do not have themselves deprive the court of legitimacy or of judicial power. it's when the perception is the reason why case are being decided the way they are is because of a particular price estimate a particular view of the constitution. that's when we get into trouble. >> the confirmation process is inherently political. or by blocking folks who you think would transform the court in the wrong direction no surprise at all. it used to be the case you do politician on the sprinkler

because what keeps it understanding in this country that law was different from politics. what's broken down over the last three decades largely thanks to the legal academy that stephen is part of, is this understand of law as the same from politics. that is a deeper crisis that leads to concerns about the politicization of the court. >> i like how he plays the law professors for breaking down the distinction between law and politics spent i was a chief counsel, just general counsel to clarify. >> steve, when i was general counsel ruth bader ginsburg was confirmed 96-three night. justice breyer was concerned 87-9. >> why? >> because the ammunition such as it was was to try to derail the nomination of chief justice rehnquist. >> the senate was controlled by republicans. if you want to understand the

history of confirmation processes over the last three decades, the first thing you need to look at is who is control of the senate. that's going to tell you 90% of what you need to know and that they can express 90% of what happens. >> so to suggest its recent democratic party and other law professors who are to blame, does anyone know the last supreme court justice to be confirmed, democratic, to be confirmed by republicans have? 1895. so i do know we can say is -- and he was a giant. [laughter] you know, i don't know we can say this is some recent phenomena. i think it is right politics was have the -- a lot to do with politics. from all these prior examples and i think what's different is

not necessarily the long-term healthy for the court even if it's super healthy for conservatives. >> so there's nothing different and i will cite the comments that obama white house counsel made yesterday indicating she would recommend exactly the same court. >> joe biden said back in 1992 this is baked in the process and the reason it hasn't the reason is because the senate has been in the hands of the party comes in part as the president. >> will so the natural conclusion is whenever there's any divided government in washington the right answer to actual conflict is inaction, right? the right answer is do nothing because there's -- >> that's not a natural extension of my argument. >> how is that not? there's a thousand up and -- a passing op-ed in the "washington post" in february about how the real, the lesson we should we take away from the republicans reaction to the scalia vacancy,

before garland had been nominated, is that there's no principle in the nomination process whatsoever. it's all about power. the sooner we accept that, the better we will all be. the fast we can dispatch having conversations like this. if that's sure what that means is the only thing that matters is how you consolidate and control power. if you agree with that, then why do we have a supreme court if other than to be an instrument of the power? >> imagining the supreme court where one of the three oldest justices is -- were to leave the court, he replaced by open nominee, thrusting chief justice roberts into the median seat called the swing seat, what kind of world would we be in? what kinds of precedents might be under pressure? >> well, of course a lot depends

on who these two justices who, on the court are but i think a prime target, a case that needs to go, a case that has corrupted american politics for some four decades as roe v. wade. whether it's 5-4, sex-3, 7-tonight, i hope that is sooner rather than later. there may be other cases as well and i'm sure steve has long listed it's interesting over the last few months as some law professor facility over liberal supreme court, they put out their own hit list of cases they would say we're wrong the moment they were decided, vacation be overruled immediately. i don't think conservatives have a long list like that. cases will come up and i think what you'll see really is an effort on the part of the judicial consumers to work these things out the one thing we've

seen in recent years is conservatives divide on a host of cases. this isn't, i've never made the argument can do whatever has that originalism or textualism yields easy answers to all cases. there can be difficult questions on which intelligent judges can divide. what's curious is how often, almost uniform and everything is a liberal justices are always together. spin there's a couple different things i should probably respond to. first, i haven't affiliates with any of the liberal law professor conspiracy lists to which you are referring, so thank you for that. second, i think part of what you don't see separate opinions from the left in those cases is because they were about losing justice can be. not because they endorsed the rationale. >> they just care about results. >> you want to talk of what happens when a conservative disagrees? when justice alito writes anything that completely --

justice scalia writes in part of the i agree with everything, i would just overrule. not something where one side is guilty of. >> your counter example is a case in which conservatives are in disagreement? >> liberals are always together and don't care about reasoned decision-making can just about results. >> my point is simply that's more complex to say liberals always do this and the do this and do conservatives always do that. >> why don't you get a counterexample speaks of what, a case where there in disagreement? justice ginsburg, begins with the rationale, understood and equal protection. >> what is a case in which -- >> unlike some of her concerned colleagues she had more faith in stare decisis. leaving that aside -- >> she is others. >> that's her but our force although it's not like the left is the daily people who ever did that. justice scalia once or twice said things in public about

pending cases. i think -- >> on one case he recused himself. >> a month before the oral arguments you talked about how we didn't think is english but whether any combat should be tried in civilian court. >> he made clear his line and other justices positions are taken in previous cases. >> he never had a case at that point. i don't think it's worth for us to quibble over historical record. leaving that aside i think the larger point is the unlike question at as with which case of the cobalt will. >> you agree then with ed where one vacancy away from the end of roe v. wade? >> i've heard that story before. it was 1980. i don't think that turn out the way and expected it to. donald trump said during the second or third debate that they would automatically be overruled

once he gets his picks to the supreme court i think for a couple of nominations in the 1980s and network that was the same three edited workout. >> do you think the republicans learned any -- >> sure how well it will be applied is another thing. justice souter's nomination is an effort to put a stealth conservative on the court at a time when you had a senate democratic majority. it carries a lot of weight with a lot of folks. steve is absolutely right that for years people have been saying this justice will be the fifth vote to overturn roe and it didn't happen. i clerked during the year of planned parenthood. quite aware of that. but look i think what you have right now is a much more sophisticated conservative legal

requirement. i think the failed nomination of harriet miers illustrates that. i think it used to be that, and this technology, the internet, all sorts of reasons that explain his, but the growth of the federalist society is a big, big factor. but basically trust us, we know what we are doing is not something that the conservatives will accept any more. >> i agree with all that. i was a briefly a role in which john roberts is the swing vote, a very interesting what edited one from we are today. i have a lot of faith in the chief justice to care very deeply and passionate about preserving the separation of powers, not preserving the role of the federal court in our system even if we have slightly different views. i think i would have a lot of confidence in chief justice roberts would not acquiesce an

effort by the political branches to limit the role of the court. i have less faith in chief justice robert to protect individual rights i care about anything ago has all of us with either started to care about. and i think the last place in with the categories with the most interesting account of the least sexy is administrative law. i is a very real possibility would be a paradigm shift in administered law and rules which chief justice robert is the swing vote. with much less deference given and power delegated to the administered space spirits that might suggest the court might actually to keep a transgender case which is a case about administrative law. we will see what happens to that. ed, let me ask you about something president-elect trump said on 60 minutes and, i found these two thoughts hard to reconcile. he was asked about obergefell. he said supreme court is so that we don't need to go back to it.

and then he said but roe needs to be overturned and issue returned to the states. it would seem to be the cause of tissue -- i'm not sure i follow that distinction. >> i was on a panel last week with law professor who made basically the same light division of donald trump did. look, different people can have understandings of when president is subtle and not. in planned parenthood, the joint opinion justice kennedy, o'connor and souter said they were calling an international division on this issue. they thought it would be over at this point. that didn't work out so i think it's entirely reasonable to recognize that the controversy over the supposed constitutional status of abortion remains very heated. spirit is that not true for marriage?

>> look, i think obergefell is plainly wrong and i believe that wrong president should perceptibly be overruled. the fact of the matter is that the court has the ability to transform or to ratify patricia maisch and the public understanding of marriage much more easily than it has the ability to deny the biological reality of a human being. it's also true of course same-sex marriage is out in society, have a certain enduring impact that is going to affect people's perceptions in a wacko think you have anything comparable entity with the question of the right to kill the unborn. >> i think women who would otherwise be pushed into back of the abortions might be merely disagreed spirit that's exactly consideration the political

process can fully take into account. >> the normalization of societal -- >> again, i'm not, i said obergefell should be overturned the onset of explaining why i think that it's conceivable as donald trump and others argued that one could view the stare decisis status as one different than the other spit i'm sure donald trump was referring to the stare decisis status of these two cases. you know space if that guy which is stop using all that latin and legal jargon. >> he meant roe is 43 years old and obergefell is one year old and in a situation it seems like and what is less reflective of the current supreme court then obergefell is that what that mrs. is the whole limits of which is the most pro-abortion decision the court is headed out that since casey but since roe.

i think it's a similar move, and things are both wrong and decided. i think they're both rightly decided. that's my prerogative. it's an effort by donald trump to draw a different line than what i suspect irwin was trying to draw and perhaps not want inform my understandings of the court. >> you would think it is a reliance interest it would be in the older case, not the newer case. >> i would which is why i'm splitting it get away. i think it is touch on the political ground as opposed to the constitutional reality which is i think abortion will remain more of a hot button issue in our content with public discourse than gay marriage. i think that is nothing to do with the constitution. and everything to do with the prevailing and evolving societal mores. >> justice alito yesterday gave an interesting speech at the federalist society which viewed one way could be thought to be kind of in agenda setting for what the supreme court ought to be look at, one of the interests

that a court dominated by concerns justices might want to address. he raised three or four things. he seemed to think that first amendment values are under attack in two different settings, in resistance to citizens united. he was unhappy with the fact that some 40 senators he said a proposed a constitutional amendment to the first amendment to come as he said, privilege the press over other kinds of corporations. he was deeply concerned about what he would call clinical practice on college campuses. i'm not sure mostly how those, but you can imagine public university. he seemed to suggest second amendment rights have not really been followed even after the heller decision, and he said

that religious liberty continues to be under attack in conflicts between pharmacists and people who make cakes and saw. that seems like a fairly conference of you of the world, and i wonder maybe since we're taking those, i'll ask you, ed, are those areas where a court truly dominated by conservatives, which it is after a second trump nomination might take a different view of things? >> i think yes, and my welfare i think justice alito was being a little more careful and identifying default lines that he perceived. but i think these are some issues that are very divisive and the more conservatives you on the court, the more likely you would be to get a consensus contrary to where the court hasn't had any. >> i don't know i disagree with it. ..

the continual effort by congressmen and legislatures to legislate around child penelope. it strikes me that if the question is speech, it's not obvious that more nominees room remove the needle that radically. the other side is religion. i think that is where there is a real potential downshift in a court where john roberts is the center seat. where i think the missouri court is a very small and modest flashpoint compared to the

tension so i think that could be a very sensitive topic in the coming years. >> we will turn to your questions adjuster second. let me ask one other follow-up. we talked about the eight-member court, but they did issue some model decisions and one of them. >> really, even by their standards, quite modeled. i'm thinking in particular the little sisters of the poor case where there is a clash between the regulations and the affordable care act guaranteeing free country to women. also religiously these groups rejecting that on religious grounds. they sort of that letter you go in and figure that out. it struck me like of family court mediator might do what you

think becomes of those kinds of clashes? >> even this year or next your? >> in terms of the obamacare regulations, i would hope those controversies are pretty quickly muted. i think that court punted its action in any other way, but i would think that in relatively quick order the new administration would eliminate the requirement that was the source of the conflict. >> i guess i'm going to be fascinated to see how the new administration handles the aca. i don't think it's going to be quite as easy as perhaps candidate trump thought it would be. i think that even if they find a way around the dispute over the exception of that religious nonprofits, there will be other litigation. i don't think the supreme court has seen the last of the aca. >> right, agreed. so, this has been a wide

discussion very easy to moderate, but we would love to get some questions from all of you. >> here comes the microphone back there. >> i would like to hear your opinion on if several retired supreme court justices that are out there and confirmed, would the president have the chance to take the bench again and with that require the senate to take any action? i'm just curious about that. we have three justices now who have retired, i forget now, the specific designation. >> the kind of have seen your status. >> yes and are still able to set as lower court judges. no, they cannot be redesignated

as supreme court justices. i think they resign the office, that office has been felt so you would have to go through the whole process again if you wanted them. >> if i can just be a nerdy professor for a moment, i do think commerce good, by, by statute, provide that in the lack of a full bench, a retired, statutory out retired supreme court justice could sit by designation to provide, that was how a number of supreme court will fill open seats. but, i don't don't think there would have to be reconfirmed. congress would have to authorize them to do it. >> congress could do that midstream with respect to already retired justices or only with respect between those

appointed to the office of justice later on. >> i imagine the constitutional objectives differ between those two cases. my own personal view is that the answer either way would be the same and i think it would be within congress' power to provide, i probably agree this is a wholly academic question. it is true that among the many reforms that have been discussed at the supreme court, having nothing to do with the politics of the moment, one of them has been for cases of recusal as opposed to open seats providing mechanism for someone. >> i think that's a conversation worth having although not necessarily right now because of the political impossibility of the statute you would need to make that happen. >> you would want to do it behind the veil of ignorance or something because all three of the potential retirees are moderate to laughed and that's not going to fight with anybody. i've also heard in private supreme court justices say that

in the constitution there should be one supreme court and the sounds like there would be different iterations of the supreme court. >> maybe. this is the same debate about whether the court could be allowed to sit in three justice panels. the court actually often acts through one justice, when you have emergency applications, the so-called data docket. it's not open and shut on this question. i think there is a more room than we might think in a different world in a different time. >> other questions? >> yes. >> please. >> my name is alain. this is beyond fascinating and stimulative. we've talked about lower court processes, but it seems to me a lot of these things, the concerns we have with the deadlock and who's in power, all

of the nominations for district courts and circuit courts,. [inaudible] >> of course, in theory, that could happen. that hasn't happened, but there has been a real slow down in the last year of the president's term and, as i indicated earlier , you end up only with real consensus pics or surrenders, getting confirmed especially after some point in the late spring or early summer. >> if you can forgive me for a slight tangent. i do think the mentality is not limited to judicial nominations. it's the exact argument that senate majority leader tried it out for why they would not consider passing a use of force

authorization for isis even know there's a very rich debate on that question. you know, the separation of powers, scholar in me worries about a world in which ordinary things are suspended by default because it's an election year as opposed to ideological reasons. in that case, it was not ideological. they actually support the idea. i think there is a larger conversation that hopefully we will keep having about why the eighth year of a two-term presidency should be any different from lots of perspectives, not just traditional nominations. i worry what it means when congress passes less legislation and does less work in the eighth year for presidents who might feel duty bound to exercise the powers even without congress and thereby be unhealthy in the long-term.

>> if they haven't already lost the senate in the house in the eighth year, that would make things easier would net. >> yes or no. i don't think this is the last time we'll have a president in his fourth or eighth year that will have a hostile congress. presidents lose seats in midterms. >> does that mean therefore, presidents should literally have a year and a half to govern and the rest of the time we should just hope the best? i'm a little more, maybe naïvely optimistic that we can do better. >> does the constitution's structure suggest that the branches can be held accountable by the voters who, at least in theory, might have been unhappy about the republican strategy. i would love to hear your views, but it doesn't seem to me that they paid up little price for what at the outset seemed like a bold and controversial strategy. >> i can speak from nfl experience that i have acquaintances who voted for donald trump solely because of

supreme court and had that not been open to them, they would've not voted or voted for somebody else. >> so that's an affirmative benefit. >> indeed. >> i think that's inevitable. that's natural and i think this is why mitch mcconnell is being commended by conservatives, by republicans for holding his ground and for digging in. again, i just want to try to suggest that if we tried to take the long view which is something that we become allergic to doing in this town, the longview is less positively disposed toward obstructionism as a policy in so far that the damage wreaks havoc on the institution. >> it seems that the selection has dispelled any fear of obstruction going forward so. >> why is that true? of chuck schumer does come out and say i'm going to deny unanimous consent for every

single thing that happens in the senate and why make and a duet, it, not because i have concerns about policies but because turnabout is fair play. when you criticize that. >> there are all sorts of political constraints on how senators ask. you seem to be operating this round of logic divorced from political reality. it's a good thing, the framers understood that of course there will be political pressures on senators and representatives, and they're shaped shaped by that and constrained by that. so they were not going to do that because he's not willing to pay the price for appeared his colleagues will. if he decided he wanted to take that gamble, then, then he's ready to face the voters. i have made clear from the beginning that it's perfectly fine for folks to offer criticisms, whether or not i agree with them of whether or not, what republicans did on the garland nomination. i've spent a lot of time criticizing law professors and

others who claim there is some sort of constitutional duty. imi fire at folks making an argument that i don't think, given their own record, but i don't think they actually believe, an argument that does not pass the laugh test. i have never criticized anyone for making political arguments against the republican. >> again, that's exactly what we ought to be debating in the political round. what is the responsible course and what is an? you indicated that you thought, if i heard you correctly, the democrats would've been rewarded if they had taken the same course of conduct. i don't know that that's the case. i think democrats would've enforced to take the same course but they may have well been punished for doing so. will he have is an opportunity for the people to speak their voices.

i think that's a good thing. >> other questions? >> right here. i was curious, this my call for speculation, but in the event of nominees on the court, could you talk a little bit more about this paradigms shift also may be a scenario where president trump wants to push through certain initiatives on immigration policy that congress is in support above and how the hypothetical court will respond to certain orders involving that kind of initiative. i agree with what steve had to say earlier about possible changes over the longer term administer the block. i think it's very difficult to discern with respect to any of

the candidates on the list where they're going to be on these law issues. i do have every hope and confidence that none of these folks would change their views to accommodate views on a particular issue. views on a particular issue. i think. [inaudible] you think you could easily see tension between the president trump who wants to aggressively wield his executive power and a court that is nervous. >> i think it would be a very easy consensus for them build with the democratic and pointy on the court to use administrative block to rein in the president trump and i think that's one area we could see new

alignment ideologically. >> i just want to turn the question back to separation of power for a minute. they said you would not be bothered if the senate extended the blockade passed 2019. are there other scholars like michael ramsey that would say it theoretically doesn't have to act on any nominee and if so how does that not conflict with article three of the supreme court? >> interesting question. i think what i said, in a justice court, i don't think we present a constitutional crisis over an extended period of time. does the president have any obligation to nominate supreme court justice and asked that question?

they say the president shall nominate by the advice of the senate and the point a whole range of officers. summary about imposing an obligation to nominate for vacancies, if that's the case, president obama is in grossly in violation by failing to nominate for all sorts of offices but i think it's more plausible as one scholar argues to understand the shell clause in terms of setting up how governments operate in the first place. who shall nominate? if president washington had never nominated anyone for the supreme court and the supreme court had not gotten it up and running, i think that would be one question that can be very difficult to defend.

where we are now, i don't think a president would have an obligation to make a nomination. of senate would have an obligation to confirm any particular nominee. the president will have an incentive to nominate the vacancies he cares about. the very fact that you have that incentive makes it for two it is to. [inaudible] >> i will just say, federal law currently provides that for purposes of the supreme court, a quorum of justices. it's an interesting question whether a scenario in which the sitting justices actually fell below six. the justices themselves might believe that requirement is unconstitutional.

i will say, i think your question highlight something i was trying to get at at the beginning of the session which is, i think it's possible that you can have a constitutional prerogative exercise, or in this case not exercise in a way that actually violates constitutional norms. the answer at the end of the day than is it's a constitutional violation therefore someone can walk into court and get a remedy. the issue is we have a crisis because two institutions try to stick to their perceived understanding of power have engaged in mutually destructive action. it's not a basis for a lawsuit but it is for the supreme court. i think were not there. >> doesn't get at the destruction of the supreme court >> no, i imagine if kagan was the only one who can be nominated to the supreme court

because of constant politics in congress. unfortunately we have these things called elections that make sure that never happens, except we also had an election in 2012 and 2014 that should have had consequences and apparently did matter either. >> i think were in agreement steve that at some point, there's a certain hypothetical that we can get to a point that we say there's a constitutional crisis. we have a court who is unable to act. that doesn't mean anyone has acted in violation of the constitutional provision, but it's nonetheless a crisis. again, our system of elections conditions, senators and presidents not to act in such a way to provoke that. we are so far from a that i think these wild hypotheticals shouldn't distort our

understanding of where we are. >> i guess the place where i agree is how far we are from app and i think folks for lessons from the elections of last week see victory for mitch mcconnell and seaworld where these tactics can be rewarded and if demographic patterns change in a way where one party is going to be insured of relative longevity, i could see both criticizing this as a powerful useful precedent. the bottom line here is the bias government will be paralyzed. some illustrate why i think that's overstated. the argument that senate republicans made it let's have the election come. it isn't let's keep this open forever. i think it is highly implausible , one straight, by one senator, i think they are

misstating what they just said. there's no consensus among republican senators that no matter whom president elect hillary nominate for the court will not have hearings or up or down votes. that's just not can happen. if the game of chicken. at the game a negotiation. this is politics. don't take the statements as though this is something that is iron cast in the not quite budged from this when they pay a political price. >> other questions. >> we have a few minutes left. >> we have answered everything. have we covered at all? >> is insight. >> thank you for this very

interesting discussion. it seems to me that the two of you agree on one thing which is to say we have a serious problem with the eroding distinction between law and politics. the only question now i guess is which one of you will get in so we can and that problem. >> or what distinction do we see as it mattering. >> my question is, since i don't think that's what happened, one of you getting in, is there any way to solve this problem of reestablishing, which i agree agree with you, is a problem, and i might tend to agree with one side more than the other as to the cause of it, but it seems to me we are not going to solve it through one side giving up so is there another side of addressing it. >> i think the underlying cause is this deep division over the

role of the court over constitutional interpretation. i said three weeks ago at an event when i was very pessimistic about what would happen in the elections that the only way this impasse gets resolved is for one side to crush the other and i was into spitting than that was my side that we get crushed. i continue to believe that the only way this ever really gets resolved is for one side crush the other. if they really want this to and, he should be cheering for liberal justices to retire meant to be in place so we have a majority for decades going forward. >> it is true that i've spent more time in the past ten days talking about how the more horrible the next four years are the better it is to believe in and that's a horrible thing to come to terms with, but it does seem very real. i think the right, there are two possible ways that we solve

towards the problem. one is, members of congress start acting like institutional responsible citizens as opposed to partisan packs. that's not going to happen. i aspire to that happening. i aspire to a world where the new democrat comes to the house and says, where are the republicans, i need to meet the enemy and they say the republicans are the opposition. the senate is the enemy. those days are gone. nice buyer to those days, i wish we could get those days back. that would be nice. bearing that, the solution is to have a supreme court nomination. i've not always been a fan but i have come around in the last year to proposals by folks like professor carrington who basically have nine justices serving on 18 year terms where it is just understood that every two-year the president is going to be able to pursue nomination

with an understanding that the senate takes up responsibility to confirm at least a sufficient moderate nominee in that situation and therefore there is nothing applied on who dies when, there's just a stable, that won't solve everything because of course the senate can still engage in obstructionism, but i think it would be harder to be an obstruction less. it would be so weird that it was an election they were going to stop acting, but i will say, i don't know waiting for it to her and down is the right way to solve this problem. i think it was only because the court survived its next crisis which was fdr in the court packing plan. i was not worried about the

prospects going forward. >> your proposal would require a constitutional amendment. >> there is debate about a this among the crazy law professors that edward referred to. i will say that i will align myself not simply because it will require an amendment if they are there after the 18th year and receiving a salary for the rest of their natural lives. >> not only does not need a constitutional amendment but it can be applied to the missing justices. >> what i'm not sure about that but i will say that i'm willing to accept i could be wrong about that. the weirdest thing about teaching federal court and law school is most of the most interesting questions never happened. that's a good thing. we are heading to a world, if you want my students laughing at me from the back. i think that we should be happy with the fact that that never happened. i worry that were going to be

having more of these questions raised that have to be resolved now. >> is it your view that crazy liberal law professors. [inaudible] >> no, there's some crazy conservative ones to. >> other less crazy liberals are smart. >> no i did not include everyone within that. those attitudes are restrictive and not redundant. adam see how we ever get to adopting a proposal like the one steve recommends which i think has something to say for it but who knows what the consequences of that would be. >> i'm sorry to say we have run out of time. this has been a super lively discussion. please thank the panelists. [applause]

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>> president-elect donald trump has filled some key positions in his administration. he is big alabama senator jeff sessions to be the next attorney general your kansas congressman mike pompeo, a member of the house intelligence committee to be cia director. and retired lieutenant general michael flynn, top a digital mcchrystal in afghanistan to be national security advisor. the top democrat on the house oversight committee allies you coming said asked the trump administration team for information about retired general flynn's lobbying efforts and whether there's a conflict with classified fi