repeal some of the layers organization has been added to actually go back and cut away things. you mentioned that as arrows and equipmented. but how big a piece of what you're considering is that? how high on the agenda is just going through the law and striking stuff out as opposed to rewriting or adding? >> well, there's a couple parts as i mentioned, secretary kindle has been working with us to identify implicative over lapping regulations that either he can thin out or working together we can thin out. and so that process is going well and is pretty far along. how -- and then taking some additional steps will require us acting or change or repeal some laws. that's part of the reason we're not going to just throw out an acquisition package and try to

get it through the committee in a short time frame. i want to hear feedback. and, so that back and forth discussion hopefully, not just this year, but in years to come, will help us get back towards that accountability that jim and i were just talking about. remember, it's not about bureaucracy, it's not about just organizations. it is about who has the authority and then can you hold them accountable for the exercise of that authority. and that's the goal we've got to move toward. >> yes, sir. >> thank you, mr. chairman. you emphasized, basically, funding, you know. dod, the military need and funding sequestration is the problem. are you propose inging 1078 kind of

appeal fshor sellquestrationsequestration? unless you also do something on the domestic side what's the solution to sequestration that you see? >> well i guess my primary point is it has to be fixed. now, that fix has got to pass the house of representatives, it's got to pass the senate and it's got to be signed into law by the president. so, what that means is the arms services committee alone cannot fix it. you've got to have 218 and 60 and 1e to get it done. so i don't know that anybody has a magic formula to do that or else it would be done by now. and -- but, yet, i think it's really important for us as jim and i were talking, to help all of our members understand the damage that has been done. and, actually, the way that it is more expensive in a lot of respects to operate under sequestration. the inability to plan, et

cetera. and what it costs us. i really believe there is -- that most republicans and most democrats in the house and the senate agree that sequestration for defense needs to be fixed. what there is not agreement upon is exactly how to fix it. and, again, whatever can pass the house and pass the senate and get signed into law by the president, i think i'm for it. >> i think it's very relevant because the greater the sense of urgency, the greater the understanding of the problem that the average member and senator has, the greater the sense of urgen civil to fix it. and the greater possibility to come to a kind of agreement you're talking about. >> yeah, the challenge is our military bends over backwards to get the mission done. and so what you don't see is the delayed maintenance. the training that doesn't happen, et cetera. it's a little harder to quantify, a little hard tore ear er

er to see. that's what we're trying to clarify. >> we'll go to the lady in the back. >> hi, we're a division of iti. and i just wanted to thank you for your leadership over the past year bringing the armed services committees together to look at acquisition reform. one of the things that we found is one of the hardest nuts to crack so far is on appropriations and funding in order to enable faster, more agile i.t. acquisitions at the department. so i was wondering, how are you starting to look at that process? where do you see flexibleties and have you started to engage the appropriations folks to start talking about ways to enable faster i.t. acquisitions 1234. >> sure. we absolutely have been discussing with the appropriations folks. not only acquisition reform, but everything that we're interested in. i really don't think there has been a time that i've seen in the last 20 years, where there has been closer collaboration

between the armed services committee and the defense appropriations subcommittee. and i think that's only going to get stronger and rodney and i are determined to make it so. you mentioned i.t. acquisition. that presents special challenges. there have been some folks who say, okay, we need just a separate authority or a separate wage to procure i.t. and then you start looking, okay, what is ichlt.t.? well, it's intragal to everything we buy. so it's pretty hard to segregate it out. and, yet we have e you have that area that changes so rapidly and makes it difficult, especially for the current procurement system to keep up with technology that field the best for our folks. so i think there are some authorities we're looking at and so hopefully, some things -- there's some brush we can clear

away to prove it. again, there's not a magic answer here. what we can do is hopefully make it better than it is now and keep working to make it better and i.t. is going to be a key focus of how we try to gauge that. >> thank you. senator, the national defense chairman, i want to ask you about some of these budget priorities to carry on about more tanks ships and things you don't believe should be retired. the pentagon says by funding these things, it takes their money away from readiness. so they have to choose and they choose readiness. so what kind of budget maneuvering is going to have to take place to be able to find what congress believes is important, but, also, what the readiness that the pentagon believes they need: thank you.

>> and the rest of the story those in congress look at the world, we don't know if we want to give up the atm or the ability to have tanks or 25 years left on the george washington. is there a cost to preserving that option? this year? >> sure. but it just adds, i think a sense of urgency that we've got to get this overall budget on a more reasonable footing. and then, are there going to be difficult choices systems that have to be retired? of course.

but with the volatility that we've seen in defense budgets and so forth and with the volatility in the world situation, most of us want to be pretty careful about giving things away because it's going to be really hard to give them back. and my key thing in my mind is when it comes to brac i mentioned, you know ten years and gao says we have not yet broken etchven from the last brac. so it's going to cost money. and the rest of the story is if we've given up a base and given l gone forever. and are we sure -- have we thought enough about our role in the world, the kind of military capability it needs to fulfill that role and what sort of basing, then, is needed for that military capability. have we worked our way through the steps so that some day we won't come and say, man i wish i had that training range back. that's part of that same sort of caution about giving things up

that some day you may regret in such a volatile world. >> national offense panel is very supportive of that analysis because, as you know, rerecommended that the department really come up with a real long term plan. and, until you have a sound long term plan about what force structure you're going to need you don't want to give a bunch of bases and then have to rebuild them again. >> we're not going to have a place to rebuild some of them. particularly ranges and so forth, are very valuable in this country. so it would be hard to retut them if we give them out. >> in the context of not giving things away, do you want to give just a brief comment about industrial base issues? because you mentioned, oval shrill, you're obviously, you're focusing on acquisition reform. you have to have a reasonably robust industrial base. >> i think those are some of the hardest issues we face and will face. i mean, i mentioned the tank example. what if we decided that it was just not worth the money to put

into that plant because we didn't really need it today. and it closed. we lose the capability. we've got to pay a lot more to reconstitute it or else we've got to go buy it from foreign sources. and, unfortunately, we're facing that sort of situation in a lot of different areas where we've got to decide whether to put money in to something that we may not need right now just to preserve the capability of having it domestically. and i think those are going to present some of the most difficult challenges or decisions for us for the country going forward. >> i'd like to ask a question

about the politics of the defense budget and the new republican congress. there's a larger majority, largest majority in a long time up against in the house. really, the first hurdle is budget resolution. last year included pretty substantial increase in the defense top line. since then, the world has gotten scarier and american interests are more at risk. let me ask you a very narrow question, if i may. would you accept anything less than the figure testified in the last year's budget resolution, i believe was $541 billion. and b, do you think that was

enough? and c, how do you think your colleagues in the republican caucus will respond to this proposition. >> before you answer mr. chairman, everybody here has been good about not making long staemt statements before their question about one of our aei scholars. never the less if you want to graciously answer it -- >> who, at one time would recollected on the armed services committee. one of the things i've learned and i believe is be really careful about drawing redline. if you draw a redline and then you don't live up to it, your credibility goes down. and if you think about what's happening in the united states -- around the world as far as the united states and our credibility, the stories that we've seen this week epd aboutend, about well, maybe it can stay aex. it says something about our credibility and our credibility to have influence in the world. i take that less son and i'm not

going to say not one dime less because one dime less would still be you know, a whole lot better than a lot less. so i don't know that there is a magic number. we've taken inflation into account. base defense spending will go from 521 to 515 under the sequestration caps for 2016. that's a real cut. the other thing to keep in mind, when you asked voters just before the november election, what's most important to you, what's going to determine your vote? number one was jobs and the economy, number two was national security. so as all of these things as i say, the red whirlwinds swirling

around the world of tell e terrorism and the other things this is very high on voters lines and their concerns and that translates through their elected representatives. we have e we just have to be able to talk together enough to find the path forward. and i will emphasize, that has to include the president of the united states. it's not enough to sit up there and throw tomatoes. he's got to engage in a reasonable conversation about hold up do we get from here to there and get it to the house and pass a signature. >> do you plan on getting some of those funds into the base budget in the near future? >> well, we've been working on that to not make up for base

budget efficiencies in opo. but to move those programs over to the base budget so that oko can be used for its intended design. >> what you hear some people say, we'll just make up for the difference in oko. as i mentioned, they cost more to do things that way. and, it does not reassure the world about our commitment to our allies and to our country's interest. so it's not a good way to go. i hope we can move things into the base budget understanding that you still need oko for

operations that you don't expect. >> hi megan ecksstein. >> you seem to be very much in line with your priorities for how to go about your reform. he obviously has serious concerns about acquisition. and to what extent will you be partnering to try to combine? >> we have talked about it several times. with senator mccane's emphasis and our emphasis in the house with presumably secretary carter and then under secretary kindle,

we're going to have a group of folks who really want to get things done. folks in both parties on capitol hill. >> we need to take it step-by-step. >> i think we have two more. so this gentleman here. >> this is a practical question. what can industry do to support your goals and build trust with the department of defense. we need to reverse the adversarial environment that exists today. what can we in industry do to support you. >> well, industry has already done a lot. and i will continue to do a lot

in industry as we work our way through some of these reform proposals. i've had people in industry tell me, look, we can give them a much better deal, but they won't talk to us. look, there are certain ethical guidelines that make sense. but we've all seen swinging pendulums that go too far and end up doing at least as much harm as they do benefit. i think that empowers them not to do so much. the united states is really unique in the world at the

parter in ship. the extent to which there is tension in that relationship or that those ties are frayed, it makes it harder for us to defend the country. again, we don't want sweetheart deals. >> it's zod's job to certify.

>> did you get that? >> i think i got the gist of it. >> there was a little echo. >> yeah, a little hard to hear. >> obviously we have goals that we want pack stand to achieve. and it is just as clear that pakistan plays an important role in helping provide troops in afghanistan and other terrorist groups that are in the afghan-pakistan region. i've got to say, i appreciate the military operations they have undertaken in the thought.

with the shooting they endured, we imagined something like that potentially happening elsewhere. so they're a partner. it's been an up and down relationship. but we want to use the right combination to get to the best place. and that has to be evaluated step-by-step as we go. very well, thank you, again mr. chairman, for your great service and your remarks and your willingness to answer questions. and thanks to all of you for being here today. >> thanks for having me.

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>> in the old days, people were paid for their lay wor. they worked 9-05 and went home with their money. today, we're working 24 hours ada. we're not rewarded. it's not even acknowledged that we're creating the value for them. and, worse than that, we're the ones that are being packaged up as the product. what these companies are doing are learning more and more about us from what we buy and what we say and what we don't say, they're creating this pen opt gone and then they are transforming us, they are repackaging us as the product. we're the ones being sold. not only are we working for free, but then we're being sold. so it's the ultimate scam. it's the perfect hitchcock movie. >> sunday night on c-span's

"q&a." >> good morning, everyone. welcome to our heritage audience. we all just came from the u.s. supreme court where they actually heard arguments this morning about this case versus the florida bar association. this is the first case that the board has heard oral arguments in a campaign finance issue since last year when they heard mccutchen versus fec and in that

case, on aggregate limits in federal campaigns. this case is about state elections, not federal elections. bans personal e personally soliciting political contributions. in this particular case a judicial candidate in florida sued after she was disciplined by the state bar association because she sign eded a letter that was mass mailed out. she says that the state does not

ban judicial candidates such as her from knowing who gave to their campaign and doesn't ban them from actually sending thank you notes to the individuals who contributed. the bar argues that this is not true. we're going to start with james bosh. james filed an amicus brief for a number of lawyers who ran in minnesota, indiana, kentucky and kansas. he has made his mark as one of the premier campaign finance and first amendment lawyers in the country.

he's the first amendment council for the jams madison center for free speech whose mission is to protect all for freedom of expression. i can't begin to list them all but they run from wisconsin right to life to his involvement in the mccutchen case. his involvement of uniform state laws at a member of the national board of governors, the republican national lawyers association as well as other numerous organizations. in 2011, npr called the country lawyer who has done more than anyone else over the years to upset the status quo in america's political money loss. now, i don't always agree with npr,but i think that's a pretty good assessment.

second, we're going to have justice randall speak. when he became the chief justice of the indiana supreme court in 1987, he was the youngest chief justice in the united states. and when he retired, he was the longest-serving chief justice in the nation. he authored more than 900 opinions for the court and has published more than 64 law review articles in 23 different journals. he also has served on the board of many different organizations and commissions as a formal trial judge and a federal official. and in 2009, he received the dwight d. operative award. finally we'll have one of the lead first amendment

communications lawyers in the nation who has been involved in some of the leading cases in this area including sec versus fox and broadcast indecency. the supreme court decided the amicus brief that he filed for the reporters' committee, for freedom of the press in the stolen valor's act case. he's the national chairman of the first amendmented lawyers association and an adjunct scholar at one of our friendly competitors. jim, you can ierteither sit there or come up here. whichever you like. >> thank you. the consensus is we'll sit. in my view, this case is the latest in many chapters in the

struggle over the proper role of courts in society. the constitution is having a very limited role. that is interpreting and implying constitutional provigszs and statutes to the facts in a similar case. however, state court judges va a very rowbust role the federal judges got out of developing common law. state judges, in all but one of the states have a very robust law on development of that law

subject to legislative enactment. >> even with respect to state court judges, they have a very limited role. they're not supposed to impose their preferences on what right exists within the state tugsz constitutions or what are the proper statutes that ought to exist to regulate people's conduct. since the jacksonian era, every state that has formed a state judiciary has provided for popular election of those judicial offers.

if you had the judges account accountable to the people, not to, for instance, the governor or the political elites that we would ensure that it would be limited to the judiciary role and constitutional provisions and would similarly develop the common law in a way that would favor the people and not the popular believes. ultimately accountability to the judge's limited role came into conflict with the progressive era with the thinking of that time in the early 1900s. of of course the progressive era rejekted the fact and believed quite strongly in the rule of the people by the e leets and by specialists who

knew better than the people. well, this attack was reenforced in the modern era. the modern progressives. they believe in a fixed understanding based upon what the meeting of the words were and the intent of the framers. but view the constitution and the statutes ultimately endorsing a liberal agenda.

and we've certainly seen in the federal system and in a few states, but certainly in the federal system examples of perhaps numerous examples where the course has not been constitutional. so we have a limited role in judges with the institution. one effort is good with initial aurals in the states. about as far as they've been able to get is about a dozen states where they have mert selection, meaning selection of judicial officers through some sort of panel appointed by the elites and the political system and then a retentional election, which is not a real election at all in most instances.

secondly is to nullify campaigns and elections. this began in 1924 with the first judicial code of ethics which severely limited the ability of candidates for judicial office to participate in their own elections and included things like the announced clause which prohiblted judicial candidates from announcing their views on political and legal issues. well, limiting campaigns for election limited right unagainst protections for the first amendment. political speech is at the core of the first amendment. and, of course, the first amendment prohibltsit prohiblts any laws that would abridge the freedom of speech. and what that meant in that instance was campaign speech.

and, of course these were severe limitations on judicial candidates ability to participate in normal campaign activity this conflict in the 2002 case, there, it was the announced clause prohibting judicial candidates from announcing their views on disputed, legal and political issues before the court. and it was by supreme court decision the court struck down that cannon. they fully supported first judicial raises, even though there was a very vigorous argument on the other side that judicial elections should somehow be kpempbt from first amendment protections.

or that there were sufficiently compelling reasons. after the numerous cannons of restricting campaign activity of judges had been struck down by the federal courts which, in most cases, had been upheld by the state courts. the sligs e ironically, the 11th circuit struck down personal solicitation by judges of campaign contributions, while, at the same time, the florida supreme court upheld the cannon. that's essentialcertainly one of the

reasons why this case is now before the supreme court. well this is a substantial restriction. it is known that the candidate is the most effective fundraiser and such solicitations by judges or campaign contributions can be expected to substantially reduce the amount of money that can be raised by a particular candidate.

it means that the candidate that his or her self has much less money where you have independent spending so it minimizes judicial candidates, ultimately, in this competition. so that's the lay of the land. >> thank you. delight to be here today as it was in the court this morning. i have four points to make. i want to begin by posing the question -- or making the point

that this cannon doesn't leave much unfettered. unfettered on ability to speak on ideas. unfettered is what was called persuasive speech. left unmolested is how much money a candidate can raise or spend that is touched by this cannon. they might have said where's the beef? most of the things that we

identify aren't covered by cannon 7. is this really core speech? yes or no. and i put it to the difference of thusz and thus i stand for thee. or my qualifications are such and such. you should elect me. the difference between that and give me money is relatively easy to see. and and if that's what this case is about acknowledged by the petitioners to be of a different character. a lawyer and judge speech really are different. we compel people not to say certain things or we compel them

to say certain things. this is easy to see in the world of finance, for example. lawyers and judges consent to these requirements when we decided to come to the bar there the first instance. so there are ways in which a lawyer's speech is limited. a lawyer can't stand in court and knowingly speak fashionly. he may not wind up in jail but he's certainly going to have problem with his law license. and he ought to. now, does the first amendment apply to these situations? yes.

what the court was about this morning what was parts really matter. there are federal laws and federal rules that apply to people like congress. and federal judges. those are really quite serious. members of congress are prohiblted from soliciting from federal employees. well why is that same reasons that were lifted up this morning for this rule about judges selectively soliciting. lawyers or people who might be in court apply there. well as justice kagan said, why is it that my cannon has to fall.

she's rare in this field for a federal judge to lift up. most of the time they talk about state judges as if we were from some foreign country. but justice kagan this morning said, why would it matter to anybody if i solicit money from my old law school. i think i know which one she had many mind. why would that really matter? the solicitor, hard pressed to tell her it was the same. they have the right to say no. it's compelled and affirmative. so the difference this morning that i think was recognized between not only lawyers and

judges fween other office holders is pretty important, including the one that only the dimpblss between people like governors, senators members of the house of representatives is that we expect them to be instrumentalties of our witnesses. we think that they will do certain things that we believe represent good policy. now, i think that the case law on this, one could pick out a piece or another piece and decide this case in either direction. it leads me to the larger point what is it that we want to have in our courts. what do we discourage? and what do we encourage. and i put it to you that today's

argument, and several other cases brought along these lines that we want judges to be more like the political branchs. it is, according to thomas jefferson, one of the causes of the revolution to get judges out from under and aside from the people in the executive branss. striking down this cannon is an skplent start. their brief's record for

example, a judge's e-mail sent after an election to a lawyer who had donated to his opponent saying, now that it's all over, i hope you will join in my campaign fund to the same extent to the $2000 you've spent trying to defeat me. oh, and by the way there's not to many places where they don't incur a late charge. all the big firms have matched out. and if i'm going to get the kind of money i need i need your firm to max out, as well. as the judge today said, harder to say no comeing directly from the judge or the person you think may be judge.

now, not quite as much this morning was does this rule cover too much or not enough? not every legislative solution or every court solution has to solve every single problem. what would be wrong with calling my old pals from school? our impulse is to think how could that be? where's the corruption in that? how old is old? how pal is pal? how far off do i have to be before i'm in the zone of safety. is the question that the solicitor would have to answer at her peril. and, likewise, under inclusiveness, as justice kagan

said today, you're demanding that they do more. in re fl florida isn't tough enough. that's why it's unconstitutional. they're trying to be narrow, to be restrained in what sort of speech is prohibited and you're krit sizing them because they haven't covered every jot and tidle. so the question is what sort of judiciary do you have. i thought it was a very insightful point made by one of the members. and one could do that u right?

the reason is because legislatures do bad things. activist judges will strike them down under the bad things clause, no doubt. these things happen. in the last election the person running for the state of ohio, saying if you believe in what the governor stand for, you've got to put me on the ohio supreme court because i'm his backstop. that's not the america

he said why would the taxpayers pay for that twice. by the time i got home i decided that was a pretty good answer. it struck me as a little odd at the time.

finally, fourth and final lyly, i'm going to say the only person who filed a brief in this case who said i think the following would be constitutional was jim bob. most of them lifted the possibilities. what if a mass letter only went to 50 people. what if is what they usually say. what jim bob says is solicitation in the courthouse can be prohibited consistent with the first amendment. that draws the line over farther than i would draw it. had the courage and the sense to say there are some things here that can be prohibited. most of the people argue in this case, don't do that. they put that over somewhere

else. here are the things we'd be willing to say. most of the arguments seem to me, most of the amicus briefs, i don't really think they would stand for approving most of the alternatives that they lift up as possibilities. the same is true with respect to recusal recusal. there was no discussion but it's very common in the briefs. that's a more narrowly tailored solution if you get a judge who's not impartial because he or she has received or solicited contributions. is this one sent out of the good graces of the donor.

the real problem with it is if the campaign contribution is designed to promote the sort of speech and the sort of judicial decision that the donor wishes a fraud. you might want to be sure you contributed to shepeherd or take a look at who you opponent contributed to so you can use that against him or her. very difficult to figure out. thank you for the invitation. i look forward to the conversation.

>> one of those deficient briefs. first of all i want to thank the foundation for invietsing me to be on this panel. i'm humbled the be on the panel with these other speakers. i did find a brief for the aclu in this case. i'm not here today as a spokesperson for the aclu but just as someone has participated in the case in that way. first of all, a little bit of background and context. this case comes 13 years after the supreme court decided the testify terrific decision, jim bob's victory in 2002 struck down a judicial candidate for announce announcing their views. we are five years almost to the day after the decision was

handed down in citizens united. there's a lot of which this case comes to the court. it's not as any of the cases the supreme court grapples with. it's not an easy case. the circuits as jim mentioned are split on this. the sixth, eighth, nineth and 11th struck down this. all the state supreme courts have upheld. for the roberts court when the chief justice ascendsed to the courts talked about trying to seek greater unanimity.

i think you can see some movement in that direction in recent years. that number had gone up fairly consistently over the years between 2009 and 2012 that was in the mid-40s. you can make that what you will. there is an effort to try to make sense of the law that can achieve some kind of consensus. that's not going to be the case today, i'm afraid. 80% have been decided by five to

four decisions. it's an area that divides the justices. i think that was evident in this today. the issue is an interesting one. i don't think it's as simple as sometimes the state get dos prohibit some kind of speech so why not here. it's just a little bit of speech. we're talking about direct restriction on what candidates can say. it's the kind of speech that the first amendment says it places the strictest limits on the government's abilities to restrict what candidates can say.

if the state decides to have judicial elections then it has a very limited ability to limit what candidates can say. states have chosen most of them to elect their judges and with that comes the constitutional right to be a candidate. it creates these questions about where you draw the line and which ones are not. in this case, the question is whether or not the restrictions adopted by the state of florida make any difference at all. we're not talking about limiting what candidates can say on the issues themselves. they just can't ask for money which is one of the main things that candidates do. there's a lot that florida doesn't restrict.

for example, while it prevents candidates from making direct appeals like in this case a mas fund raising letter, it doesn't prevent them from establishing committees and responsible person for the candidates campaign and obtain public statements of support for his or her candidacy. it's the exact same letter out. it's just that if you sign it as the candidate did in this case she can be subject to sanctions. she was given only a reprimand for around $1800. nonetheless, the campaign can still send out that that message.

you have to show that the government is serving the interest that it's designed and restrictions to serve. from saying please nothing prevents the candidate after the committee asks for a contribution from saying thank you. the candidate can know who gave the campaign. they can, i suppose hold a barbecue for everyone who contributed afterwards. all the same dynamics that are described as corruption still happen. you don't have the candidate signing that initial letter. you're penalizing people for speech for no purpose. that was the line the justices were trying to get at today. how can you adopt a regulation

that actually serves some kind of purpose without adopting relation that goes too far in restricting speech. i think there were a lot of questions that got to that. many questions involving the thank you note. none of them that really honed in on where that exact line is. i think that's where that close division among the justices in this area is going to play a significant role. it kind of depends on how important you think first amendment is in regulating campaigns. i've always been a little confused about this area myself. usually if the regulation doesn't serve an interest then it's invalid even under less rigorous judicial scrutiny.

it seems like the operating principle most people advocate various kinds of campaigns is the political speech is far too important to be tree. i've just never understood that principle. it is different from other areas of political campaign restrictions and that is because it does deal with judiciary. she asked would the first amendment let us prohibit a congressional candidate from asking a donor to contribute to

the campaign. doesn't this mean there's certain restrictions you can put on judicial candidates that you can't put on others. i should back up and say as a re preface he said it would prohibit a judge from going up to a litigant or in the courthouse making a direct appeal. i agree with that assessment. once you accept that then you have to answer how differently can you treat them. how far can the state go in restricting these kinds of appeals and can we adopt these restrictions for they symbolic value. do we want judges to be different?

my own personal answer i want an unelected judiciary and you don't have these problems. many people may answer it differently. the root problem is we don't have to figure out which fine tuning method is the right one. we take politics out of. you don't have candidates that are judges. >> thank you. i'm going to come up here and we'll take questions from the audience since we have plenty of time. i want to hone in on something that you all talked about a bit. you could really see in the questioning this morning. it was the questioning by justice briar and justice scalia honing in on the fact it was clear that justice briar thought

there was something really different, more coercive if the judge is actually doing the solicitation. it was very clear that justice scalia and some of the others thought the whole idea is to avoid quid pro quo production, how are you going to do that when the candidate cannot only write thank you notes but can give a list to his or her committee of who they should contact to do it. >> i think it points out difficult it is to claim their significance here as far as the distinction florida is trying to draw because florida would allow a letter that says the

following. i'm a personal friend as the judge who has asked me to serve as chairman of his campaign committee. he has given me your name to ask that you contribute and i'll be reporting to him. if you contribute you'll be, not only will the judge know but you can expect to receive a thank you note from him for giving the contribution. is there a constitutionally significant difference between that letter and the judge writing a letter and saying this is judge joe blow. i'm running for judge. i'd appreciate a contribution for my campaign. the message is the same. is it really so different that it's from a candidate campaign

chairman in the way i described and the other. this reminds me of angels dancing on the head of a pen. the context is the first amendment applying to this activity. doesn't matter whether it's for judge or for senate or for governor. come on think about coercion, how about if a gubernatorial candidate looks you in the eye and say would you mind contributing to my campaign. if we view a judge that you may not appear before and a

candidate and you have a business in the state, who is more persuasive if that's what we're really talking about. it's hard to draw these distinctions. that's why the first amendment context matters. this is core political speech. it's what the first amendment had in mind and the founders and the writers of it when they wrote the first amendment was campaign activity and campaign activity including solicitation and it's by far the most effective means for raising money for your campaign and what is that money for. i think the reason it was prohibited goes back to the fact the people by in large and not exclusively who support these restrictions do so because they want to shut down elections.

they know this is important that to have a candidate actually make the solicitation and by prohibiting it it is a big hit to that campaign and to the campaign of all judges for judicial office. it goes toward ultimately driving campaigns out of judicial elections and thereby nullifying what the people want which is the kind of judges that are restricted to their roles and it seems to be necessary to have judicial elections to make the judges accountable to the people to make sure they are restricted in their roles. >> it's interesting that two people found the brief seeking the same outcome in this case. there's so much we disagree on.

i think the point you isolate was the same thing that troubled the justices this morning. that is the candidate himself is the most effective personal for appealing for funds. this is the thing justice briar, in particular, and there's inherent coercive power when a judge asks for money. this is the point he made through a number of questions. this is the kind of thing that they prohibit. if the candidate is the person asking for money, it might be many reasons it might be true. to me that suggests there is an interest here in preventing judges from using their roles to gain in the electoral setting. when you look at what is allowed, when you look at the fact the best friend who happens to be the campaign manager can

write the same letter and send it and send a list and the judge write thank you notes and be aware of who contributed and who didn't then the florida cannon does nothing to serve the purported interest that florida is trying to solve. all it does is restrict candidate speech. i would agree with you that when it comes to whether or not the regulation is overinclusive or underinclusive it's got severe problems. i don't think you need do nothing because the judges are the most persuasive money getters. that's the problem that florida is trying to solve. >> i suggest that if florida had a rule they put the hammer on all the places where you say it doesn't now. your client would be in theme posture that your client is in that none of those should be tolerated

under the first amendment. i felt one of the interesting things about today's argument was justice scalia's repeated references to dignity. back in old fashion america we used to think dignity was worth something. it mattered that the people that we placed in office or other positions of trust could be seen in that way. of these dignity hashis case but in the field in . dignity has been crushed aside as having no consequence of stake. it isn't sort of what the thank you notes or good, bad or indifferent. it's whether you createder which individualalk into the courthouse and not worry in ways they shouldn't have to worry about whether the judge will decide the custody of

their granddaughter is somebody who is going to be influenced by the fact that the last time you went to the lawyer on the other side and asked for $1,000 he got it. the people who walk into court don't feel good about justice in america. that's one of the things the candidate do. >> all our senators and all our congressmen and governors and president, all a bunch of undignified people because they solicit campaign contributions. i don't think there's anything inherently sordid or nasty about soliciting a contribution and when we're talking about, in this case, just signing a mass

letter. what do you think about that? >> i do think it's hard to argue that dignity has constitutional value. that's why i don't usually use it. it struck me as unusual that it seemed to be an issue for him. it doesn't get any traction in the setting. i will say if you were to ask most americans would the nation be better off if all the judicial elections looked like congressional elections and all the big money spending by special interests in the running of attack ads wouldn't be better off if america had that in its judiciary too. americans would say no. >> i agree with that. i think they don't like campaigns generally. if you say we're going to be have more campaigns they go how horrible because they don't like campaigns generally. if you ask them as the aba did

in 2000, if you ask them this question, which judges are more fair and more impartial, which i think are the judges we want. fair and impartial. which are more fair and more impartial. judges that are elected or judges that are appointed. what they said three-fourths of them said elected. the kind of judges we're most likely to get are people that are elected and i think that's because the american people feel inherently if our public officials are responsive to the people, not to the elite and the big shots and the people down inside the beltway. then we're going to have more fair and more impartial judges.

>> my brief answer to the question was interesting. if you're concerned about judicial dignity, don't make them candidates. why would you think that's a good solution? who knows if the lawyer on one side contributed to his campaign. you have that any way. the judicial candidate does nothing. you made them candidates. they're raising money. the only thing that changes is they don't sign the letter at the bottom asking for that contribution. they still solicit the contribution. they still get it. they still know who gave it to them and they still say thank you at the end. the problem isn't the fact that you can make a direct

solicitation appeal by signing a mass fund raising letter. the problem is you're allowing these people to be candidates. i thought was was one of our primary checks and plansbalances. the last thing i want is a judge that will base his opinion on the latest polls or whether or not he think it's going to affect his chances of being re-elected. i would prefer to have a judge that's vetted for his qualifications and committed to the principals of adhering to the constitution as he or she interprets it. i think elections get in the way of that. >> that will have to be another debate that we have, perhaps. another session or elected verses. i have to tell a quick story. i used to be an in-house corporate counsel. i handle litigation all over the country. in the states where the state judges were appointed, the local lawyers would complain ant how

terrible the judges were because they were all people who were friends of legislatures and the governors. i would handle cases in states where a judges were elected and the local attorneys would complain about the judges saying these terrible people got them elected. there were clearly problems. we'll take questions from the audience. make it a question and identify yourself before you ask the question. >> john malcolm. my question is i always assume any kind of election restriction whether fund raising or abilities to speak is designed to benefit the incumbent. were there questions asked from the perspective of what happens if somebody is challenging the city judge? >> that question did come up. >> how does it play out as far as networks and inequality of

income. >> justice roberts too. >> the best answer was if you really want to favor incupkumcumbents set them loose to do face-to-face requests. there's the place where nobody can say no. the restraint on direct requests is a rule that helps the non-incumbent even if you thought leveling the playing field was a first amendment right or something. you'd have to get there somehow. who does it favor. it seemed to me not much evidence, no evidence by either side in the report. jim bob and i agree completely on who's the best fund-raiser. it's the candidates. why people from the hill have separate offices to go down certain hours of each week and start making the phone calls

that have been teed up for them. they have a success rate that's a well lot higher than the bet friend who tells you i'm going to tell the candidate that you gave. >> and of course, what he just said is right except this, which i think makes the critical difference. if there is no campaign at all who wins the election? the incumbent or the challenger. the incumbent. with no campaign somebody who is already in office has a huge benefit of being in office. they get news media and office and staff and travel budget and all this. they've already demonstrated that they have enough pop youular support to get elected the first time. they have campaign team. all the advantages go with the incumbent. the only way a challenger can meet that is raise sufficient

money to compete. to the extent you make it more difficult to raise money it does affect one of the candidates, and that's the challenger because their job is to raise sufficient funds to overcome the incumbents advantages that they have any way. >> i would agree with that. it's true if you turn everybody loose the incumbent will still have an advantage. the incumbent has an advantage any way.

>> there's a saying amopgng judg produces one angry litigant and one ingrate. we don't have even where we have judicial elections. there isn't formal juryman the way there is races for congress or state legislatures. >> i'm ken doyle. i wanted to ask if panelists agree that the decision in the case is likely to be another 5-4

decision. is is there any way to tell where justice kennedy will come down from the argument this money morning? >> at one point justice scalia said we only need five votes. >> early in the argument justice kennedy was testing the petition ner on hypotheticals that had too with how masses mass and how direct is direct. if there are three people in the room does that count. he ended up by saying we're off to the races by which he meant we're going to get quite a pattern of fine gradations.

i took heart from that and so did jim bob. i don't know what to tell from it. it seemed to me i took it to mean he recognized the great difficulty of having judicial opinions kind of work out. those would be the things you end up if you say context is all we're business. >> justice kennedy has been in the judicial speech cases in white in 2002. he was the most absolutest in

that case in terms of the ability of judges to talk about issues. in fact, it was interesting because i actually supported a limit on judicial candidate speech. whether or not particular cases were rightly or wrongly decided. what they could not do skised with the first amendment is announce they're views is pledge your promise certain results in a particular case. they could say rowe v wade was wrongly decided or rightly decided in their view. what they could not say is when i take judicial office, if rowe v wade comes before me i'm going to strike it down.

that's promising how you're going to exercise your judicial power in the city. i thought that kind of promise even though a legislature couldn't make it or executive officer could make that promise. that's inconsistent with the role of the judge. the other role is the side cases based upon the law and the facts at the time the decision is meant to be made. not promises how we're going to do it in the future. justice kennedy took me to task in oral argument over even suggesting that there could be that limit on judicial candidate speech. he then wrote a concurrence to explain that that would be unconstitutional. that limit itself unconstitutional. i do think that consistent with the application of other laws to

campaign activity that there could be limits on judicial candidates. we said in our brief and you added me on this -- >> you stand a ialone on this. i congratulate you. you were more persuasive. >> i do believe it. federal candidates are prohibited from soliciting campaign con tri biegstributions on federal property. remember al gore was caught raising campaign cash in his vice president's office. he was taken to task for that because that violated federal law. i think a judge can be be

prohibited from soliciting at the courthouse. i think also they could be prohibited from soliciting people that have cases in their court. just like even though a judicial candidate, including a judge can talk about cases and how they would view prior cases having been decided he could be prohibited from talking about cases that are before him or her. you can raise contributions from

people and solicit them but not people who are in your com or having cases in your court. i think those who are narrowly tailored. they make since because they are similar limb tags in other areas regarding campaign activity. they really eliminate the real ones where there is a potential abuse. even though the cannon here applies to everybody in other words, a candidate for judicial office cannot call up their mother and ask them for a contribution or they will be disciplined. people they don't know. people that live in other counties and would never have case before them, even other states or foreign countries.

they can't ask people that would never appear before them. it's so ridiculously proud for no logical reason. >> we don't have time for more questions. if everyone would thank our panel, we appreciate you being here today. coming up at 9:30 a.m. eastern a senate foreign relations hearing on negotiations with iran over the country's nuclear program. at 12:45 p.m. eastern the u.s. conference of mayors winter meeting which brings mayors from more than 300 cities to washington with meet with congressional and administration

officials. a house science hearing on domestic use of unmanned drones and the regulation of drones. at 4:45 p.m. eastern president obama making his first trip to idaho as president. he's speaking at boise state university in his first public remarks after this year's state of the union address. the supreme court ruled that a muslim prisoner in arkansas

has the right to grow a beard. prison officials refused to let him grow a half inch beard saying he could hide drugs or rep weapons in it. the high court ruled that was a violation of his several liberties. the oral argument in the case from october of last year. 40 other prisons allow it. in their brief they reject every means to evaluate their testimony. what they really seek is deference to anything they say just because they say it. that would be to reveal this statute.

there must be con greet limits to that deference. if this prisoner wanted to have a full beard would we require that the prison administration allow him to do that? >> some courts have said yes. the 40 states that permit them suggest the state would have a difficult burden of proof. that question's not permitted here. >> the religious requirement is that he grow a full beard, isn't it? let's assume i'm in a religion that requires polygamy. could i say to the prison well okay i won't have three wives.

just let me have two wives. you're still violating your religion if he requires it to be clipped to one inch isn't he? >> the religious teaching is a full beard. he testified that religiously have an inch is better than nothing. he explained that in terms of a something he referenced. he's in a difficult situation. i don't think he should be penalized for being reasonable. he offered a dproms. >> religious believes aren't reasonable. they are categorical. >> he explained on the record. >> okay. you think on the record that's what his religion would require.

>> you say we want the draw the line at half inch. it seems to me you can't avoid the legal difficulty just by saying all we want is half an inch. >> most of the cases seek a full beard and sooner or later you will have to decide one of those cases, but this case, he made a pro se decision to limit his -- >> but we have to decide this case pursuant to a generally applicable legal principle and that legal principle is one it seems to me that demands some sort of limit. if you're unwilling to articulate a limit to the principle itself, it becomes a

little bit difficult to apply it and say, well, we don't know what the limit is because you're only asking a half inch. we'll apply a theoretical legal structure and say you fall within it. >> well, i think, you know, the limit has to be determined on a record and a case that is seeking a longer beard. i think, you know, the larger issue than just half an inch that this case presents is how do you administer -- the legislative history suggests deference to prison officials in the context of a compelling interest standard. >> maybe this was improvidently granted. i don't want to do these cases half inch by half inch. let's take a case that involves

a full beard. the next case will be one inch, then one and a half inches, two inches. >> they're not going to come in that order. the next case is going to be most likely the next case is going to be a full beard because that's the great bulk of the cases. this case has a limited question presented and has a serious question of statutory interpretation. the courts below essentially applied the constitutional standard that gave essentially unlimited deference to the prison official. >> what has this court said about the standard with reference to prisons? that the prison has to show it's least restrictive alternative in order to meet the requirements of strict scrutiny and it's the prison's burden is that proposition established? >> well, your only prison case is cutter, and that was a constitutional challenge. >> do you think it displaces turner as the right standard? >> it was clearly intended to replace turner. it textually replaces turner. >> and what is the test in so far as you're concerned? >> the test is compelling interest and least restrictive means and deference must be administered in the context of that standard, not instead of that standard. so if it's a close case on compelling interest, they may well get deference. if they give a reasoned and well considered and informed

explanation, they deserve for deference. more deference would be due. cutter says they get due deference, but cutter had no occasion to decide how much deference is due or how that should be administered. the textual standard is clearly compelling interest and least restrictive means. >> could you put your answer in practical terms? the chief justice asked you what's the legal principle that you want us to apply, and you announce it as give them the right deference. it's a little bit circular, the answer, in my mind. looking at what the circuits have been doing, which one do you think articulates the best approach and what courts should be doing? >> maybe judge gorsuch's opinion in the tenth circuit, but i'm not sure any circuit has given a fully elaborated candidate of deference in the context of a compelling interest test. we think the more reasoned and

informed their explanation, the more deference is due. do they give concrete examples of specific harms, do they treat similar risks the same way, do they take account of solutions that have been found to work in other jurisdictions? do they take account of the religious needs of prisoners or do they just reflexively say no. >> the standard is other similar risks the same way, then what about a quarter inch rule because that's what they allow for people who have dermatological problems. >> they allow a quarter inch for medical beards. they don't allow even a quarter inch for religious beards. but the quarter inch i think for medical beards i think fatally undermines their claims they can't administer a length limit and it somewhat undermines all

their other claims about a half inch weird. this is in some ways like the case justice alito wrote in newark on the third circuit. the medical exception undermines all the alleged reasons for not allowing a religious exception. >> there are some religious practices, i think that the sikh practice of not cutting hair ranks as a religious practice, so not cutting hair and wearing a turban consistent with what you say is the standard. could a prison say we won't allow that because it is too easy to hide contraband? >> that may be. i don't know what the evidence would show about sikh hair wrapped in a turban, but that's clearly a much more serious issue than what's presented in this case. sikh hair wrapped in a turban may well be difference but we

don't have any evidence about it in this case. we don't really have a way to know on the record in this case. >> mr. laycock, you're relying on this case really on felt intuitions that this couldn't possibly advance the state's interest but for the most part in these cases, there will be some incremental gain with respect to the interests that the state has. so whether it's a full beard or whether it's long hair or whether it's a turban, there will be some ability to say even though it's just teeny tiny, there is some increase in prison security that results from disallowing this practice. and i guess i want to know, and this really fits in with several of the other questions that have been asked you, is how do we think about that question in the context of this statute? >> i think they have to show material -- the phrase in the government's brief and i think it's helpful -- a material

effect on their security situation. any teeny tiny risk, however small, is another way of de facto repealing the statute because you can always imagine some teeny tiny risk. even in turner the court said the test into zero risk. even in turner the court said you have to -- >> teeny tiny isn't enough, but how about, you know, measurable although small? or at what point does it become something that we say, yes, you have to take that into account? >> well, i think material or significant may be the best we can do. they say, for example, that in 2011 they confiscated 1,000 cell phones. i don't think a half inch beard would change that number but if it wasn't to 1,001 and or 1,010, i don't think that's material. if it goes to 1,100, that's a

significant increment. they have to show some material effect on their security situation and here where they allowed beards for many years where 43 states allowed beard, there should be plenty of examples if it were a problem. and, you know, this is not something that's so dangerous no one has tried it. so there should be plenty of examples, and, in fact, they have no examples of anything hidden in beards and certainly not in a very short beard such as half an inch. this idea of deference comes from legislative history, and that very same legislative history said exaggerated fears, mere speculation are not enough, and it's for the judiciary to distinguish the two. i think what we have in this case is exaggerated fears. >> well, the problem with deference, i think, is that if you accept the fact that there is a point at which it does become a problem, full beard with the turban, then there's the question of how you draw the line, and drawing the line, it strikes me, may be the point at which you will consider deference to the prison administrators.

you take deference entirely out of the equation by saying, look, we're only asking for half an inch. >> well, we haven't taken deference out of the equation but when we only ask for half an inch and when they offer so little evidence and no examples and no consideration of solutions elsewhere, they haven't done anything to deserve deference. they haven't shown expertise, and even with deference, even with some degree of deference, it doesn't make out a compelling interest on these facts, and that's the question presented. >> could you -- you know, we seem to be arguing rules. they say no beards. you say half inch is okay. and then the question begs itself how about 3/4 of an inch, how about an inch, or a full beard. what are we measuring this against?

are you seeking to establish a rule that every prisoner has to be permitted to grow half inch beard and no more? or are you asking for a rule that applies just to your client and then articulate why for your client? >> no. we think a reversal here would establish a right to a half inch beard for all prisoners on this record unless some other state made a very different showing. all prisoners -- >> so what happens -- i know the magistrate judge or the judge below here said that it was preposterous to think that this prisoner could hide anything in his half inch beard. assuming that his half inch beard was not thickly grown, but some are, and some you can't see

the skin. should that half inch issue be applied to that prisoner? wouldn't it be a different set of facts in that case to consider? >> well, a state might be able to show that's a different set of facts. you know, but the question is not just is it conceivably imaginable that some prisoner somewhere could hide something in a half inch beard. but could he hide something there that he couldn't much more easily and more securely hide in the hair on top of his head, in his shoe, in the lining of his clothes? >> for all half inch beards, right? >> yes. >> we have to assume all half inch beards are okay if god tells you to grow them, right? >> well, you know, i think that's right, and again subject to somebody producing evidence that we're wrong about some half inch beards but i think, yes. >> well, i mean, whose burden is

that? >> it is the state's burden, that is explicit in the statute. this is an affirmative defense we're talking about of compelling interest and least restrictive means. the only limit they impose on the hair on top of your head is it can't extend below the middle of the neck. you can have long hair, curly hair, afros on top of your head without a length limit. the hair on top of your head and the hair on the front of your head is not even rational. they could hide more and the prison warden testified to this, you could hide things on the hair on top of your head but that's not against the rules. they have singled out the beard that is preserved -- that is more for religious reasons and not treated other things that are really indistinguishable. if there are no further questions, i'll reserve the remaining time. >> thank you, professor. >> mr. chief justice, may it please the court, this case involves the religious accommodation of a half inch long beard that bop and over 40 states would allow a prisoner to

wear. the state failed in its burden of proving that denying a half inch religious beard would be the least restrictive means to further a compelling interest. >> is it your position that if, what, 90% of other institutions similar to the one at issue in the case permit the practice that is challenged, it cannot be a compelling interest? is that your position? >> no. in fact, i think our position is that security interests in prisons are compelling, but the burden that is imposed upon the state is a burden to show the means selected, the denial of a half inch beard, is the least restrictive means to further that interest, and in this case that's a showing that has to be made in court. it is something that congress specifically recognized would

be -- >> i understand that, but i'm asking what is the relevance of the fact that other -- >> well, the relevance -- >> are we going to say whenever an institution comes up here that has a restriction which other institutions of the same type do not have or at least a large majority of them, it's ipso facto bad? >> no, i don't think it's a dispositive factor, however it significantly undermines the significantly undermines the state's showing that a similar restriction could not be in this context. and the state in the face of this example if raised in litigation would have to provide a reasonable basis for explaining why there might be a distinction between what's going on in other states and what's going on in this state. and the showing in this case is exceptionally meager. >> why does it have to show a distinction? it can just say the other states are wrong. we think it's dangerous. i don't care what other states think. >> i think a little more will be required under the compelling interest test. now, this court in cutter -- >> suppose a state just simply says this, you know, actually there's nothing special about

our prison. we can't show you some special circumstance, but what we can show you is that prisons are in the business of making trade-offs between security and other values. they do that every single day, and our state just thinks that the trade-off should be more security oriented. so we insist on a greater level of security than our peer institutions do. are you saying the statute prevents a state from doing that? >> no, i don't think the statute imposes a least common denominator amongst state prison systems. however, i think there is some bounds to the state's judgment that needs to be -- there are some limits, and the state needs to provide a reasoned explanation in order to get deference to its predictive judgment in this context. >> how -- >> go ahead. >> how do you reconcile deference with the strict scrutiny that the statute requires?

>> well, this court in qatar, for instance explained that the strict scrutiny when deciding what was required by strict scrutiny context -- >> there are two questions there. one is a good question. with does this idea of deference come from in this context but the question i was asking is how do you think assume tlg is a role for deference, how does it fit together with what the statute expressly requires? >> i don't think there's any dissidence between the idea of strict scrutiny which is not a degree of proof required. it's whether you identified a compelling interest and shown that the burden is least restrictive means. that can be shown by a preponderance of the evidence. when you're talking about deference in this context you're talking about deference to the predictive judgments of officials based on their experience and expertise based on the fact they're in fact charged with protecting the public and administering these

prisons. when they provide a reasoned explanation based on experience and expertise, they don't have to point to a specific example of a half inch beard in the past resulting in something horrible -- >> i share justin alito's confusion on this point. all the things you're talking about are things we would never allow in the typical strict scrutiny context. you know, all this kind of, well, as long as they say something, they don't really have to prove it and it just has to sound kind of reasonable. that's the very opposite of strict scrutiny generally. >> well, in this context, the statute doesn't say strict scrutiny. it says that the state has to identify a compelling interest. >> it sounds like -- >> it's similar but remember this court in cutter has recognized that the application -- what you might broadly label strict scrutiny depends on context and in congress when they enacted laws

understood these two concepts could be administered together. >> do you think it's the same standard in both of those statutes? >> for the large part, yes. i want to caveat that because -- >> the language is completely the same. >> yes, but in -- most of the language is completely the same. the standard is the same. but in one there is an additional profession that requires that the terms of the statute be broadly construed to the maximum extent possible to protect religious -- >> but i thought we actually used that in the recent case to suggest something about rfra. >> that's because rfra definition of religious exercise incorporates the other definition. beyond that context, it's conceivable that the court might have a broader interpretation of the protections. >> mr. yang, before you sit down, your brief lists a whole series of cases on page 14 that were decided before rluipa.

are all those practices which we approved up for grabs now under rluipa? there were restrictions on receipt of publications was one. >> i think the analysis is different now. it could be litigated. any of these claims could be litigated. the state would then have the burden of coming forward to show that the restriction would, in fact, be a least restrictive -- >> so all those we approved, correspondence limitations, all those would have to be looked at anew under the standard? >> i think that's right because if you were to go back to pre-rluipa case law, no one would doubt that a state could, in fact, prohibit a half inch beard under the prior constitutional standards, but congress has set a higher bar

and it imposes upon states the obligation to come forward to explain and justify it. now -- >> where are you on the full beard? >> on the full beard, i think there might well be a difference, but, again, rluipa depends on a showing in litigation by the state that the means selected is least restrictive means. a state may well be able to show that a full beard would run real risks that are just not present in the half inch beard that we have here. >> assuming that's the case, assuming they have some evidence of concealment or whatever in a full beard, what do we do? just litigate a dozen cases until we settle on 1 3/4 inches or what? >> i think -- >> what i'm doing -- it's the same question i asked -- >> there's not -- >> what's the legal principle and if there is no direct legal principle, then isn't it a situation in which you would employ deference to the administrative judgment? >> i think that's exactly right, that there's going to be a bound, a range of reasonableness that courts will find

appropriate to defer to predictive judgments by expert officials in various contexts. >> can i ask a similar question but, you know, lots of religions, including lots of religious of one, have dietary codes of various kinds. suppose a lot of prisoners say here is my dietary code personal to me and all of that costs money and let's stipulate as prisons have to spend money on that, they have less money to spend on things relating to internal security. how is somebody supposed to think about those kinds of questions where it's just every time somebody makes a religious claim, the costs to the institution goes up and the ability of the institution to deal with security issues goes down? >> well, maybe not necessarily always the second. certainly you can have costs going up. it may not necessarily affect the -- >> but i'm -- they come out of some place. >> at some limit that's true. i mean, we all operate under a

real world with limited costs and as the court recognized in cutter -- >> how do we do that? >> excuse me? >> so how do we do that? >> i think again it's going to depend. if the factor that is would be relevant is the context. does the increased cost prejudice other types of interests in operating the prison. that would have to be articulated by -- >> wait a minute. i mean, so vote more money. all you have to do is raise taxes. we're talking here about a compelling state interest. bear in mind, i would not have enacted this statute, but there it is. it says there has to be a compelling state interest. and you're asking, let's balance things and be reasonable. compelling state interest is not a reasonableness test, at all. >> it's not me, your honor. i think it's what the court actually recognized in cutter. the court in all quotes said the act needs to be applied in an appropriately balanced way with particular sensitive to security concerns and that accommodation must be measured so it does not override other significant interests.

>> thank you, counsel. >> thank you, your honor. >> mr. curran. >> mr. chief justice, may it please the court, arkansas's security objectives are undermined by the petitioner's half inch beard because he could use it to alter his appearance, thwart identification, and conceal contraband in our maximum security prison's unique environment. >> altering appearance, i thought it was conceded that at intake the prison could take a photograph clean shaven. >> your honor, that is not on the record. i concede that that was not sufficiently addressed to withstand the summary judgment posture in this case. the record testimony was just -- i agree with professor laycock it wasn't satisfactory. let me get to -- >> i don't understand what you just said.

>> well, there's two points in altered appearance. one is identification within the prison itself and i want to get to that in one second. one is a post-escape scenario. where you're looking for the inmate. our testimony on that was not engaging in the question. there's no record testimony regarding that. so let me get to identification -- >> why do you need record