that front door, but what's leaving the back door? from there we met with the presidents of panama, honduras, and colombia, so they could see firsthand what the challenges are downrange. met with the country teams as well. and the demand signal for u.s. capabilities, whether it's capacity building, or whether it's basing resources in those countries is as loud as i've ever heard. but you really need to get down and see firsthand, you know, it was important that you bring other members of this leadership team, whole of government down to see for yourself. so i don't see, and i'm trying to tell the person next to me, and as that communication goes down the line the message gets scrambled and it's not understood. we're all seeing the problems from different aspects but with whole of government, on what needs to be done down there. and i'm very optimistic for the opportunity that have presented themselves. >> we seem to be at the end of our allotted time.

just want to one more time thank the admiral for coming out and making himself available. excellent remarks and the q&a was wonderful, thank our sponsor lockheed martin one more time and our partner csis. we think this is a wonderful partnership, between us, the naval institute and csis. thank you very much, sir. give the commandant a hand. all this week, c-span2 has been showing washington journal's recent tour of historically black colleges and

universities. today it is a look at tuskegee university in alabama at 6:30. at 7:15 we'll show you our tour of xavier university in louisiana. and while congress is on its presidents' day break, we're showing american history tv in primetime. tonight, japanese internment during world war ii. that starts at 8:00 eastern with real america and a 1944 documentary on the living conditions at internment camps in arkansas and wyoming. and then at 8:20, lectures in history with a course on how the press handled the japanese internment. at 9:25 eastern, american artifacts takes you through the japanese american national museum. and at 9:55 eastern oral history with former congressman norman mineta assigned to a japanese internment camp with his family. the barbed wire and guard towers are gone, but the memories come flooding back for so many people who until today

had lost such a big part of their childhood. for many released after the war, some buried the memories, and with it the history of this camp. now more than 60 years later -- >> this sunday on q&a, jan russell on the only family internment camp during world war ii at crystal city, texas, and what she says is the real reason for the camp. >> the government comes to the fathers and says we have a deal for you. we will reunite you with your families in the crystal city internment camp, the family internment camp if you agree to go voluntarily and then i discovered what the real secret of the camp was. they also had to agree to voluntarily repatriate to germany and to japan if the government decided they needed to be repatriated. so the truth of the matter is that the crystal city camp was

humanely administered by the ins, but the special war divisions of the department of states used it as roosevelt's primary prisoner exchange. it was the center of roosevelt's prisoner exchange program. >> sunday night at 8:00 eastern and pacific on c-span's q&a. the heritage foundation recently hosted a discussion on the financing of judicial elections. this event comes as the supreme court heard an oral argument on whether a state can bar judicial candidates from directly soliciting campaign funds. this discussion is just over an hour. >> well, good morning, everyone. welcome to our heritage audience and also as john said, welcome to our c-span viewers. we all four just came from the u.s. supreme court, where they actually heard arguments this morning about this case. williams-yulee versus the florida bar association.

this is the first case the court has heard oral arguments in a campaign finance issue since last year, when they heard mckuchin versus ftc, and in that case threw out aggregate limits in contributions on federal campaigns. this case is about state elections, not federal elections. and it's a case about this particular issue. florida, like two dozen other states that have candidates running for judgeships, that have judicial elections, bans personally soliciting political contributions. in this particular case, a judicial candidate in florida, williams-yulee sued after she was disciplined by the state bar association because she signed a letter that was mass mailed out to voters, and was also posted on her campaign website. she claims that this

solicitation ban is a violation of her first amendment rights, to engage in political speech, especially since 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 association argues that this ban is necessary to ensure the impartiality of judges, and to prevent the actuality and appearance of corrupt influence on their elections, and that the ban does not violate the first amendment. i'm going to introduce the three panelists we have here today. i'm very honored that they on very short notice agreed to come here. i'm going to introduce all three of them and then let them speak. we're going to start with james bopp. james filed an amicus brief on this case for lawyers who ran for judicial offices in arizona, kentucky, indiana, wisconsin and

kansas. from his offices in terre haute, indiana, he has made his mark as one of the premiere campaign finance and first amendment lawyers in the country. he's the general council for the james madison center for free speech. he has litigated many important cases before the u.s. supreme court and elsewhere. i can't begin to list them all, but they run from wisconsin right to life to his involvement in the mccutchen case. he's a commissioner erer and a member of the national board of governors, as well as numerous other organizations. in 2011, npr called jim bopp the country lawyer who has done more than anyone else over the years to upset the status quo in

america's political money loss. i don't always agree with npr, but i think that's a pretty good assessment. second we're going to have actually justice randall shepard speak. he's a former chief justice. and in 2006 led the conference of chief justices. who actually filed am cuss brief of this case also. when he became the chief justice of the indiana supreme court in 1987, he was the youngest chief justice in the united states. 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 53 different journals. he has also served on the board of many different organizations and commissions, was a trial judge and federal official. in 2009 he received the dwight d. openerman award from the american judicator society. finally, we'll have robert

corn-revere speaking. he also filed a am edd an amicus brief, but on behalf of the aclu. he's a partner of a firm that's a leading lawyer in the nation. the supreme court sided the amicus brief he filed in 2012 for the reporters committee for freedom of the press in the stolen valor act case u.s. versus alvarin. he's the national chairman of the first amendment lawyers association, and an adjunct scholar at one however friendly competitors, the cato institute. he received countless awards also for his work including the 2014 kenneth b. mclaughlin award of merit from the national press photographers association. we're going to start with jim bopp. and, jim you can either sit there or come up here, whichever you would like.

>> is this okay? all right. thank you. the consensus is, we'll sit. in my view, this case is the latest in the many chapters in the struggle over the proper role in the courts and our society. our constitution conceives of the judiciary of having a very limited role. that is, interpreting and supplying constitutional provisions and statutes to the facts of an individual case. state court judges have a similar role with respect to state law, an application of state constitutional provisions, and state statutes. to the facts of an individual case. however, state court judges also have a very robust role in developing the law. which federal judges do not have, since the decision in the '30s. the federal judges got out of

the business of developing a federal common law. however, state judges in all but one of the states have a very robust role in developing that law, subject to legislative enactment. so even with respect to state court judges, they have a limited role. they are not supposed to accept in the development of the common law. they are not supposed to impose their own personal policy preferences on what constitutional rights exist within the state constitutions, or how -- what are the proper statutes that ought to exist to regulate people's conduct. now, since the jack soedyun era in the 1820s when popular sovereignty became the watch word, and this was reinforced by the abolitionists, every state that has formed a state judiciary has provided for popular election of those judicial officers.

and that is because the people who wrote those state constitutions believe that if you had the judges accountable to the people, not to, for instance, the governor or the political elites, that we would ensure that the judiciary would be faithful to their limited role of interpreting and applying the statutes, and constitutional provisions, and would similarly develop the common law in a way that would favor the people, not the political elites. well, this idea of popular sovereignty and responsiveness to the people, and ultimately accountability to the judge's limited role came into conflict in the progressive era with the thinking at that time, in the early 1900s, and of course, the progressive era rejected the

whole idea of popular sovereignty, and in fact believed quite strongly in the rule of the people, by the elite, and by specialists, who knew better than the people and could create a better society. so as a result of that thinking, the popular election of judges came under attack. while this attack was reinforced in the modern era, the modern progressives, the liberals more commonly known, who believe in the idea of a living constitution. they reject the idea of a fixed understanding of the constitution and statutes based upon what the meaning of the words were, and the intent of the framers. but view the constitution much more, and often statutes, in a much more flexible way, which

allows the judges to pour into the constitution their own personal policy preferences and 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, perhaps numerous examples where the courts have not been faithful to the constitution, and have implemented the liberal agenda. so, we have a concerted attack on the idea of a limited role in judges, faithful to the constitution. and that has resulted into efforts. one effort has been to eliminate election of judicial officers in the states. about as far as they've been able to get is in about a dozen states where they have merit selection, meaning selection of judicial officers through some

sort of panel appointed by the elites in the political system, and then a retention election, which is not a real election at all in most instances. secondly, is to nullify campaigns in elections. and 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. that included things like the announced clause, which prohibited judicial candidates from announcing their views on political and legal issues. it also included prohibiting the solicitation of campaign contributions. well, limiting campaigns for elections, of course, ran right up against the requirements and the protections of the first amendment. because political speech is at the core of the first amendment. and, of course, the first

amendment prohibits any laws that would abridge the freedom of speech. and what they meant in that instance, in the first amendment, was campaign speech. and of course, these were severe limitations on judicial candidates' ability to participate in normal campaign activity. well, this conflict between the first amendment and these judicial codes of ethics culminated in the 2002 case of republican party of minnesota versus white which i was privileged to argue before the u.s. supreme court as lead counsel for the republican party of minnesota. and there it was the announced clause prohibiting judicial candidates from announcing their views on disputed legal and political issues that was before the court, and in a 5-4 decision the court struck down that canon. they fully applied the first amendment to judicial races, even though there was a very vigorous argument on the other

side that judicial elections should somehow be exempt from first amendment protections. or that there were sufficiently compelling interests that would allow such draconian limitations, essentially limiting judicial candidates to talking about their resume. well, after the white case, numerous canons of restricting campaign activity of judges has been struck down, while in most instances -- by the federal court -- while in most instances state courts have upheld the restrictions, which now brings us to the case before the court, which was one of the original 1924 limitations on solicitation by judicial candidates of contributions to their own campaign. ironically, the 11th circuit which covers florida, struck down an identical georgia canon that prohibited personal

solicitation by judges of campaign contributions, while at the same time the florida supreme court upheld the canon. that is certainly one of the reasons why this case is now before the supreme court. numerous circuits had struck down such judicial canons, while many state supreme courts had upheld them. well, this is a substantial restriction. it is known that the candidate for any office, whether it be judicial or otherwise, is the most effective fund-raiser for his or her campaign. and such restrictions of personal solicitation of judges of campaign contributions can be expected to substantially reduce the amount of money that can be raised by a particular candidate. now, significantly, it should be

understood that this canon really only restricts the candidates, him or herself from raising money. which handicaps the candidate if independent groups decide to get involved in that election, and of course, they can raise funds without limitation and restriction. it means that the candidate, him or herself, has much less money to deal in an environment where you have independent spending. so it actually victimizes judicial candidates ultimately in this competition. so that's the kind of lay of the land. and now we will hear from the others about the validity of the particular canon at issue. >> judge? >> thank you. i'm delighted to be here today. as i was to be in the court this morning. i have four points to make. and some reflections on what

justices ask, and what the -- what answers were given an hour or so ago. i want to begin by posing the question, or making the point this cannon, in fact doesn't touch very much. what does it leave unfettered? well, candidates are unfettered with respect to their ability to speak on issues or qualifications or ideas. unfettered is what the court called persuasive speech. left unmolested is how much money a candidate can raise or spend. none of that is touched by this cannon. and likewise untouched is the whole realm of independent expenditures. so as one or two justices asked this morning they might have said, where is the beef?

most of the things that we identify as political speech aren't covered by this part of cannon 7. put another way, is this really core speech yes or no? and i put it to you that the difference between i stand for thus and thus vote for me or my qualifications are such and such such you should elect me. the difference between that and give me money is relatively easy to see. and that's what this case is about. as justice sotomayor, for example, indicated. it's a request for a financial transaction. connected to the larger election to be sure. but acknowledged, i think, finally by the petitioners to be of a different character. second lawyer and judge speech really are different, again,

acknowledged this morning by the petitioners. there are plenty of places in society where first amendment notwithstanding, we compel people not to say certain things, or we compel them to say certain things. this is easy in the world of finance, for example. you can't put out a securities offering without including information or you won't get registered. there's a penalty for doing that. lawyers and judges especially consent to these requirements when we decide to become members of the bar in the first instance. so that there are ways in which a lawyer's speech is limited. a lawyer can't stand in front of a court and knowingly speak falsely about the record or about the facts. may not end up in jail. but he's certainly going to have a problem with his law license and he ought to. and the same is true with respect to judges. now, does the first amendment

apply to these situations? yes. they tell us that it does. and what we're really about this morning, the court was about this morning was finding what parts really matter and how should the court draw that contour for people who are engaged? one of the differences that was discussed this morning was the fact that there are federal laws and federal rules that apply to people like congress and federal judges. and those are really quite serious. members of congress are prohibited from soliciting campaign contributions from federal employees. well, why is that? the same reasons that were lifted up this morning for this rule about judges directly soliciting lawyers or people who might be in court apply there.

and justice kagan said why -- she's rare in this field that -- for a federal judge to lift up. well, what does this mean for us? mostly, 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 for my old law school. i think i know which one she had in mind. why would that really matter? and, of course the petitioner hard pressed to tell her that it was the same. but she was on a track that really mattered. there are certain solicitations if you, for example, solicit a federal employee for a federal official. the law compels you to speak. it compels you to tell the federal employee that he or she has the right to say no. there's kind of compelled affirmative act.

the difference this morning that i think was recognized between not only between lawyers and judges and other office holders is pretty important. including the one, one of the differences between people like governor, senators members of the house of representatives, legislateors legislators, we vote for them because we think they will do certain things we believe represent good policy. judges, we hope, we hope, are people who will instead read the law, look at the facts and do the best human beings can do to give an impartial answer. now, i think that the case law in this one could pick out a piece or another piece and decide this case in either direction. which leads me to the larger

point. what is it we'd really like to have in our courts? what do we want to discourage? and what are we willing to encourage? and i put it to you that today's argument and several other cases brought along these lines are that we want judges to be more like the political branches. now, we -- we used to have that in this country. we had judges who were part of the political branches. and 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 and legislative branches many times against whom citizens were litigating in the first instance. and if one decides that you like that striking down this cannon is an excellent start.

the former chief justices from alabama and texas told us what you get when you leave this unfettered. their briefs record, for example, a judge's e-mail sent after election to a lawyer who donated to his opponent saying, now that it's all over i hope you will join in my campaign fund to the same extent of the $2,000 you gave trying to defeat me in the election just past. oh, and by the way, there are very few places where late payment doesn't incur an upcharge. another example in which a texas judge wrote saying to a variety of law firms. all of the big firms have maxed out. and if i'm going to get the kind of money i need, i need your firm to max out, as well. as several judges today said, harder to say no when that request comes directly from the

sitting judge. or for that matter somebody who you think might be a judge. now, are there worries about this rule, one of the great debates in the briefs not quite as much this morning was does this rule cover too much or not enough? and as justice said, not every legislative solution or not every court solution has to solve every single problem. chief justice roberts for example. what would be wrong with calling my old pals from school? our impulse is to think, how could that be? where is the corruption in that? unless you parse it out and say, well, 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 a question that the solicitor would have to answer at her

peril. and likewise on the question of underinclusiveness as justice kagan said today. well, so you've demanded they do more. florida isn't tough enough, that's why it's unconstitutional. and they're trying to be narrow to be restrained in what sort of speech is prohibited. and you're criticizing them because they haven't covered every everything. so the question is what sort of judiciary do you want to have? and maybe it is, one of the great questions this morning was was -- is the -- do you create in the judge an impulse to pay off later. to do the quo for the quid.

i thought was very insightful point made by one of the members of the court. and -- and one could do that, right? i mean rand paul gave a speech. we need more activist judges in this society. the country would be better off. this is running contrary to usual form, right? we want more activist judges. why is that he said? the reason is because legislatures do bad things. and activist judges will strike them down under the bad things clause, no doubt. got left out in my printing of the constitution. but these things happen. in the last election cycle, a person running for the. supreme court of ohio spoke right after and on the same platform as governor kasich and saying, if you believe in what governor kasich stands for you've got to put me on the ohio

supreme court because i'm his backstop. that's not the america that led thomas jefferson to say that bringing judges aside from the rest of the government was a reason for the revolution. but it is -- it is a possibility. i mean you could decide that's what you wanted. judges who would do what the elected branches wanted to do. i once asked bob bork whether a judge who was elected should feel freer to make policy, not just in common law, but freer to make policy through constitutional law or statutory interpretation in the way consistent with the judges' policy preferences. and bob bork gave in a sort of classic, what i thought at the time was a rather flippant answer. he said, why would the taxpayers pay for that twice?

and by the time i got home i decided that was a pretty good answer. it had struck me as a little odd at the time. but it was if anything a fiscal conservative answer. finally, on fourth and finally on overbreadth, not broad enough and so on. i want to say that the only person who filed a brief in this case who actually said i think the following would be constitutional was jim bob. most of the other lift these up as tantalizing possibilities. but what if a mass letter only went to 50 people. what if is what they usually say. but jim bob says is solicitation in the courthouse can be prohibited consistent with the first amendment. and now that draws the line a little farther over than i would draw it, but he had the courage and sense, it seems to me, as an advocate to say there are some

things here that can be can be prohibited. and most of the people arguing this case don't do that. they sort of put that over somewhere else. here's the things we'd be willing to say. and frankly, and most of the arguments seem to me most of the briefs, most of the briefs i don't really think they would stand for approving most of the alternatives they lift up as possibilities. the same is true with respect to recusal. there was almost no discussion of recusal this morning. but it's very common in the briefs. well, that's a more narrowly tailored solution, if you get a judge who is not impartial because he or she has received or solicited, i guess, contributions. there are two problems with that. is one that's a little hard to know when and where the

solicitation occurred or is this is a solicited campaign contribution or one simply sent out of the good graces of the donor by definition happens beyond the view of the rest of the public. but the 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, then recusal makes the election a fraud. it also places in the hands of litigators a handy tool to get rid of judges in front of whom they think their case might not go, as well. you might want to be sure you contributed to shepherd so at the right moment you'd get an exit card. or you might want to make sure that take a look at who your opponent contributed to so you could use that against him or her. very difficult to figure out.

in any event. thank you for the invitation i look forward to the conversation. >> bob? you were one of those people that filed a brief too. >> yeah, one of those briefs. >>. [ laughter ] . >> first of all, i want to thank the foundation for inviting me to be on this panel. i'm humbled to be in the presence of these other speakers. thank you for your kind introduction. i should begin by saying i did file an amicus brief. i'm not here as a spokesperson for the aclu but as someone who has participated in the case in that way. so the views today and all the mistakes are entirely my own. first of all, a little bit of background and context this case comes 13 years after the supreme court decided the terrific decision in republican party of minnesota versus white, jim bob's terrific victory in 2002. struck down a judicial conduct

cannon that prohibited candidates for judicial office for announcing their views on disputed legal or political issues. we are five years, almost to the day, after the decision was handed down in citizens united. so there's a lot of context in which this case comes to the court. also, i should say, it's not as any of the cases that the supreme court grapples with. it is not an easy case. the circuits as jim mentioned are split on this. the sixth, eighth, ninth and 11th circuits have struck down cannons like this. the third and second have upheld them and the state supreme court courts have upheld them. so it's no surprise this will be a case the supreme court will have to wrestle with. and the arguments we witnessed this morning, i think, are pretty good evidence of that. now, i have to say that for the roberts court, when the current

chief justice ascended to the court in his confirmation hearings talked about trying to seek greater unanimity on the court. there's been a lot written about that. and i think you can see some movement in that direction in recent years. as recently as the 2008, october 2008 term, only 33% of the court's decisions were unanimous. that has gone up fairly consistently over the years, between 2009 and 2012. two-thirds of the court's decisions were unanimous decisions. trying to make sense of awe law that can achieve some kind of consensus. that's not going to be the case today, i'm afraid. just listening to the arguments today, looking at the kinds of issues. and also, looking at this area of law.

the political campaign cases that have come to the court in recent years have not been unanimous decisions. 80% of them had been decided by 5-4 decisions. and so it is an area that does divide the justices. and i think that again was evident in the questioning today. in this case, there were 17 briefs filed for supporting the petitioner. and so there's a lot for the court to consider. now, the issue itself is an interesting one. i don't think it's as simple as sometimes the state gets to prohibit some kind of speech. why not -- it's a little bit of speech. we're talking here about political speech. a direct restriction on what candidates can say. it's the kind of speech that historically the supreme court has said the first amendment places the strictest limits on the government's ability to

restrict what candidates can say. and the issue that the court isolated and made clear as a prevailing principle in the case that jim argued, was that if the state decides to have judicial elections, then it has a very limited ability to limit what candidates can say. it doesn't have to choose elections. the federal system is not based on elections. states have chosen most of them have, to elect their judges. and with that comes the constitutional right to be a candidate. and having made that decision it creates these really complicated questions about where you draw the line. what kinds of restrictions are permissible 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. limiting what candidates can say

on issues themselves, they can say all of that, they just can't ask for money, which is by the way, one of the main thing candidates do. but, you know, nonetheless, there's a lot that florida doesn't restrict. for example, cannon 7c1, like in this case it was a mass fund raising letter. doesn't prevent the candidate from establishing committees to secure and manage the expenditure of funds for the candidate's campaign and public statements of support for his or her candidacy. you can send the exact same letter out. it's just if you sign it, she can be subject to sanctions. she can be -- in this case, she was given only a letter of reprimand and court had to pay costs, around $1800.

but nonetheless, you know, the campaign can still send out that message. you might ask what's the problem then? the campaign can still be funded. the only problem the candidate can't speak. and the problem there is the first amendment. if you're going to pay a first amendment price. if you're going to restrict what people can say, then you have to show what the government is actually serving the interest that it's designed this restriction to serve. and in this case, the problem is where a candidate is prohibited by florida cannon 7c1 from saying, please, nothing prevents the candidate after the committee asks for contributions from saying thank you. i suppose hold a barbecue for everyone who contributed to the campaign afterwards. all of the same dynamics that are described as corruption.

you don't have that candidate signing the initial letter. >> you're penalizing people for speech for no purpose. and that was the line the justices were trying to get at today. how can you adopt regulation that actually serves some kind of purpose without adopting a regulation that goes too far in restricting speech. and i think they were all out of questions that got to that. many involving what about the thank you note? but none of them that really honed in on where that exact line is. and i think that's where that close division among the justices in this area is going to play a significant role. it's, again 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. when i think about other areas of first amendment law, usually if the regulation doesn't serve an interest then it's invalid.

even under less rigorous judicial scrutiny. so, for example, in the area of advertising. if the restriction on advertising doesn't actually prevent the problem. it seems like the operating principle underline most people advocate campaign finance restrictions is that political speech is just far too important to be free. and i've just never understood that principle. i guess the only thing i would say is that there was a question that justice ginsberg asked early in the argument that i think did get at why this is going to be a difficult case to answer. it is different from other areas of political campaign restrictions. and that is because it does deal with the judiciary. you know she asked andy pinkus

would it prohibit us from having a candidate asking the donor for the campaign. and does this mean there are certain restrictions you can put on judicial candidates you can't put on others? i should back up and say that as a preface to that, he had made the concession, the first amendment would permit a restriction that prohibited a judge going up to a litigant or in the courthouse making a direct appeal. and i agree with that assessment. the first amendment would permit that kind of direct appeal. and then giving and being given that answer, then justice ginsberg asked, doesn't this mean we treat these candidates differently from other candidates. once you accept that premise, then you've got 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 basically for the symbolic value? that we want judges to be different? i'll end on the question and that is what kind of judiciary do you want to have. my own personal question, my own personal answer to that question is i want an unelected judiciary. and you don't have these problems. different people may answer that question differently. but i think the root problem isn't that we have to figure out which of these fine tuning measures is going to be the right one. i think the answer is we take politics out of it entirely or at least electoral politics out of it. and you don't have candidates that are judges. >> thank you. >> all right. 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 you all talked about a bit. and that is that you could really see in the questioning

this morning. and it was particularly the questioning by justice breyer and scalia. it was clear that justice breyer thought there was something different. more coercive if the judge is actually doing the solicitation. whereas it was very clear that justice scalia and other justices thought that, well, if the whole idea is to avoid quid pro quo corruption, how are you going to do that when the candidate not only can write thank you notes to those who have given them letters but can actually give a list to his or her committee of who they should contact to do that. is that a -- you think that's a really crucial issue in how the justices are going to decide this case? >> i think it points out how difficult it is to really claim

their significance here as far as the distinction. that the -- florida's trying to draw. because florida would allow the following. i'm a personal friend of the judge who has asked me to serve as his chairman of his campaign committee. he has given me your name to ask that you contribute. and i'll of course, be reporting to him. and if you contribute, not only will the judge know but you can expect to receive a thank you note. from him. for giving the contribution. now, how -- is that is there a constitutionally significant difference between that letter and the judge writing a letter and saying you know this is judge joe blow, i'm running for judge, i'd appreciate a contribution from -- for my campaign.

because the message is the same that is the solicitation. and is it really so different that it is from a candidate candidate's campaign chairman in the way i described, and the other. you know, so this is, you know reminds me of you know, angels dancing on the head of a pin. and, of course, the context is the first amendment applies to this activity. you know, candidates soliciting contributions. but there's two things about that. number one is by far the most effective solicitor of a candidate's campaign is the person him or herself. and that's regardless of what the person is running for. doesn't matter whether it's for judge or for senate or governor. i mean come on think about coercion. how about if a gubernatorial candidate looks you in the eye

and says, would you mind contributing to my campaign. you know, if we view you know, a judge that you may not ever appear before and a gubernatorial candidate and you have a business in the state, who is more -- who is more persuasive if that's really what we're talking about. and again it's really hard to draw these distinctions. and the -- and the -- and that's why the first amendment context matters. this is core political speech, number one, it's exactly 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 includes solicitation. and it's by far the most effective means to raising money for your campaign. and what is that money for? doing speech. about your campaign. and i think the reason that it was prohibited goes back to the

fact that the people by and large, not exclusively but by and large who support these restrictions do so because they want to shut down elections. and so they know this is important. 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 judges accountable to the people to make sure they are restricted in their roles.

>> well i was just going to say, it's interesting that for two people who filed a brief seeking the same outcome in this case that is the florida candidate being struck down, there's so much we disagree on. i think the point that you isolate was the same thing that troubled the justices this morning. and that is that the candidate himself is the most effective person for appealing for funds. and this is the thing that bothered justice breyer in particular and also bothered justice ginsberg. and that's saying there's an inherent coercive power when a judge asks for money. this was the point he made through a number of questions. and this is the kind of thing that the state is trying to prohibit here. and if in fact the candidate is the most effective person in asking for money, that would be one reason for that. there could be many reasons why that might be true. to me, that suggests that there is something an interest here

in preventing judges from using their roles to gain in the electoral setting. on the other hand, when you look at what is allowed when you look at the best friend who happens to be the campaign manager can write the same letter and send it and send a list. and then the judge can write thank you notes and be aware of who contributed. and more importantly, who didn't contribute. then the florida cannon does nothing to serve the purported interests that florida is trying to solve. and all it does is restrict candidate speech. so i would agree with you that when it comes to whether or not the regulation is overinclusive or underinclusive, -- nothing simply because the judges themselves are the most persuasive money getters. i mean i think that's the problem florida is trying to

solve. >> all the places you say it doesn't know. arguing 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. and back in old-fashioned america, we used to think dignity was worth something. you know, that it mattered. that the -- that the people that we placed in office or in other positions of trust could be seen in that way. in most of this litigation dignity has been not just this case but in the field in general dignity's been brushed aside as having no consequence of any value. and, indeed in most of these

briefs, there are a number of briefs in which the claim is made that public confidence is not a particularly compelling state interest either. which is sort of second cousin to that idea. it seems to me that what justice scalia might do is connect the notion of dignity to the entitlement to due process. that's what's at stake. it isn't sort of what thank you notes or good, bad or indifferent. it is whether you create circumstances under which individual litigants can walk into the courthouse and not worry in ways they shouldn't have to worry about. whether the judge who is going to 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, you got it. the people who walked into the court knowing that don't feel

very good about justice in america. and that's one of the things this cannon has designed to keep from happening. >> i would like to ask justice shepherd two questions. one is, what is undignifyied about soliciting campaign contributions? in other words, all senators and all our congressmen and governors and presidents all a bunch of undignified people because they have to -- because they solicit you know, campaign contributions. i don't think there's anything inherently nasty about soliciting a contribution. and particularly in this case a mass letter. >> actually i think it's hard to argue that the dignity has constitutional value. and it struck me as unusual that

it seemed to be an issue for him it doesn't get any traction in this setting. would the nation be better off if all the judicial elections looked like congressional elections, all the big money spending by special interests and the running of attack ads wouldn't we be better off if america had that as the judiciary, too. americans would probably say no, i think i'd rather take a different approach. >> and i agree with that. i think they don't like campaigns generally. and so if you say we're going to have more campaigns oh, horrible, they don't like campaigns generally. but if you ask them as the apa did in 2000, if you'd ask them this question, which judges are more fair and more impartial.

judges that are elected or judges that are appointed. what they said 3/4 of them said elected. in other words, the kind of judges were most likely to get are people that were elected and i think responsive to the people, not to the elites and the big shots then we're going to have more fair and more impartial judges. >> go ahead and we'll take a brief question from the audience. >> it was interesting.

>> do you want to judge who contributed to his campaign. you have that anyway. the candidate does nothing. you've made them candidates, going out and raising money. the only thing changes they don't sign the letter at the bottom asking for that contribution. they still solicit the contribution through the committee. they still say thank you at the end. the problem isn't the fact that you can make a direct appeal by signing a mass fund raising letter. i always thought that was one of our primary checks and balances. the last thing i'd want is a

judge when i go in to argue a constitutional case is going to base his opinion on the latest polls or whether or not he thinks it's going to affect his chances of being reelected. i would prefer to have a judge that is vetted for his qualifications and is committed to the principles of adhering to the constitution as he or she interprets it. i think elections get in the way of that. >> that's going to have to be another debate, perhaps, or another session on elected versus appointed judges. i have to tell a quick story. i handled litigation all over the country. and in the state where the state judges were appointed. friends of legislators and the governors. and then i would handle cases in states where judges were elected and inevitably the local

attorneys would complain. so they were clearly -- okay. now we're taking a question from the audience. john? if you would if you would, please, please make it a question and just identify yourself before you ask the question, thanks. >> john malcolm here at the heritage foundation. i always assume any kind of an election restriction whether it's fund raising or an ability to speak is designed to benefit the incumbent. whether there were any questions today asked from the perspective of what happens if somebody is challenging a sitting judge. >> that question did come up. >> and justice ginsberg asked not just that, but how does it play out as far as networks and inequality of income and so on. and i've forgotten who -- >> justice roberts, too. >> the best answer was, if you really want -- set them loose to do face to face or direct

contribution requests. there's the place where nobody can say no. and that the restraint on direct requests is a rule that helps the nonincumbent. even if you thought leveling the playing field was a first amendment right that you had to get there somehow. but who does it favor? it seemed to me not much evidence. no evidence by either side, actually, in the record. jim bob and i agree completely on who is the best fundraiser. it's the candidates. 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. because they have a success rate that's a lot higher than even the best friend that tells i'm going to tell the candidate what you gave. >> and everything he just says 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 huge benefit of being in office. they get free news media they get an office, a staff, a travel budget and all this. and they've already demonstrated that they have enough popular support to get elected the first time. so they've already been through a campaign they have a list of donors. they have a campaign team. in other words, all of the advantages go with the incumbent. the only way a challenger can meet that is raise sufficient money to compete. so that's why the incumbent, you know, no campaign, we win. and that's why money matters much more to the challenger than it does to the incumbent. so to the extent that you make

it more difficult for the challenger to raise money, like you can't solicit it does disproportionately affect one of the candidates. and that's the challenger. because their job much more than the incumbent is to raise sufficient funds to overcome the incumbent's advantages that they have anyway. >> yeah, i would agree with that. and, you know, it's true if you turn everybody loose, the incumbent's going to have an advantage. the incumbent has an advantage anyway. the only possibility of leveling the playing field although i don't think that's a legitimate state interest in the campaign reform context the only way the challenger has hope is if they aren't restricted in their ability. >> there's a saying among judges that every case produces one

angry and disappointed litigant and one ingrate. mostly we don't have judicial elections even where we have judicial elections that there isn't gerrymandering the way there is in races for congress or state legislators. but the fact of electing people by district mostly means that whoever that party's nominee was and the number of actual contested elections is pretty small. >> yeah? >> thanks. 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 as most of them are in this area. and with justice kennedy as the likely swing vote. is there any way to tell where

justice kennedy will come down from the argument? >> justice scalia said we only need five votes. >> early in the argument, justice kennedy was testing the petitioner on hypotheticals that had to do with how mass is mass? and how direct is direct? and is -- one on one, that's okay. how about two on one. if there's three people in a room, does that count? and he ended up by saying, well, then, we're off to the races, aren't we? by which he meant we're going to get a, quite a pattern of -- i took heart from that and so did jim bob. i don't know what to tell from it. i think he -- i took it to mean that he recognized the great

difficulty of having opinions kind of work out -- how about -- maybe not inside the courthouse on the steps, how far away from the courthouse does it have to be? those would be the things you end up with if you say, well context is all, florida hasn't gone too far. it's gone not far enough. go work it out. is what i got from that opening question. >> and, you know, you can't help but look at these things through your own experiences. and justice kennedy has been in the judicial speech cases particularly in white in 2002. he was the most absolutist in that case. in terms of the ability of judges to talk about issues. and, in fact, it was interesting because i actually supported a limit on judicial candidate

speech that while they could talk about issues, their general judicial philosophy, whether or not particular cases were rightly or wrongly decided, what they could not do, i thought, and consistent with the first amendment is announce their views on -- i'm sorry is pledge your promise certain results in a particular case. in other words, they could say roe v wade was wrongly decided. it was wrongly decided or rightly decided in their view. but what they could not say is is -- and if when i take judicial office. if it comes before me, i'm going to strike it down. in other words that's promising how how you're going to exercise your judicial power in the future. and i thought that kind of promise, even though a legislator could make it or an executive officer.

someone running for executive office could make that promise is that is inconsistent with the role of the judge. he's got two roles. the other role which is to decide cases based upon the law and the facts at the time of the decision is to be made. not promising how we're going to do it in the future. justice kennedy took me to task in oral argument over even suggesting there could be that limit on judicial candidate speech. and he wrote a concurrence to explain, basically that that would be unconstitutional. that limit itself would be unconstitutional. now, in this case, i do think that consistent with the application of other laws to campaign activity that there could be limits on judicial candidate. we said in our brief and you added me on this justice --

>> you stand alone on it. >> well. >> i congratulate you for doing it. you were more persuasive because of it. >> well, i do believe it. and so, federal candidates are prohibited from soliciting campaign contributions on federal property. you remember al gore was caught raising campaign cash in his vice president's office and he was taken to task for that? because that violated federal law. i think similarly -- and i think that's a very sensible time, place and manner restriction. and similarly i think a judge could be prohibited from soliciting contributions at the courthouse for the very same analytical reasons. is the time place and manner restrictions and really, we shouldn't be using our taxpayer money to fund an office for a

candidate raising campaign cash. i think also, they could be prohibited from soliciting people that have cases in their court. just like, even though a judicial candidate and including a judge can talk about cases and how they could, you know, view prior cases having been decided he could be prohibited from talking about cases that are before him or her. and that's a separate cannon. so similarly you can raise contributions from people, but, and solicit them, but you should not be soliciting people that are actually in your courtroom or have cases in your court. and i think those are narrowly tailored.

they make sense because they are similar limitations in other areas regarding campaign activity. and they really eliminate the real ones where there is a potential abuse. it 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. you know, that's so people they don't know people you know, live in other counties, states or foreign countries, it's so ridiculously broad. for no logical reason. these boil it down to those where we could say, well, there

might be some abuse here. and i think those could be limits. >> unfortunately, we don't have time for more questions. if everyone would thank our panel. we really appreciate y'all being here today. >> great job. all this week, c-span 2 has been showing "washington journal's" tour of black colleges and universities. and today a look at tuskegee university in alabama. that's at 6:30. and at 7:15, the tour of xavier university in louisiana. and while congress is on its presidents' daybreak this week, we're showing american history tv in prime time.

8:00 eastern with real america and a 1944 documentary on the living conditions at interment camps. and at 8:20, lectures in history with how the press handled the japanese interment. and american art factifacts takes you through the museum. and 9:55 eastern, oral history. here are some of our featured programs for this weekend on the c-span networks. saturday morning starting at 10:00 a.m. eastern, live on c-span, our nation's governors get together to discuss issues affecting their states. guests include danny myer, ceo of union square hospitality group. and maria bartiromo of fox business news. and sunday morning at 11:00, we continue our live coverage of the national governor's association meeting, featured

speakers include jay johnson and epa administrator gena mccarthy. on c-span 2, saturday book tv is on the road. experiencing the literary life of greensboro, north carolina. part of the 2015 c-span cities tour. and sunday at 9:00 p.m. eastern on afterwards, wes moore retraces, wall street banker to social entrepreneur to find his life's purpose. and on "american history tv" on c-span 3, saturday night just after 7:00 the 1963 interview of former nation of islam minister malcolm x discussing race relations and opposition to racial integration. and sunday at 6:30 p.m. eastern, former cia chief of disguise tells the story of a husband and wife kgb spy team that infiltrated the cia through the use of sex in the 1970s.

find our complete television schedule at c-span.org. and let us know what you think about the programs you're watching. call us at 202-626-3400. e-mail us at comments comments @cspan.org. or send us a tweet tweet @c-span #comments. like us on facebook, follow us on twitter. the supreme court heard oral argument on a key component of fair housing act. discrimination in renting or housing does not have to be blatantly racially motivated to be illegal. this is about an hour. >> you'll hear argument in case 131371. the texas department of housing affairs. mr. keller? >> thank you, mr. chief justice.

and may it please the court. the fair housing act does not recognize disparate impact claims. and when a statute prohibits actions taken because of race and it lacks effects based language, the statute is limited to intentional discrimination. and second the cannon of constitutional avoidance compels this interpretation. most importantly, the act doesn't use the phrase adversely affect. recognize this phrase was -- >> at the time of smith and greg. neither the title seven of the adea. used the words disparate impact. and yet we recognize they apply. disparate impact. >> at the time disparate -- the words "disparate impact" were not used but adversely affect were used and watson subsequently interpreted griggs as finding the textural hook of

disparate impact liability was based on the -- >> the problem because it says to refuse to sell or rent, et cetera or otherwise make unavailable. and the agency charged with interpreting that language has determined that it means disparate impact. >> justice sotomayor, the phrase "make unavailable" is an act prohibited be i the fair housing act. >> it's a consequence. it happens to be because that's what you do with housing. but it's a consequence. >> the act of making unavailable a dwelling to a person is the act prohibited by the fair housing act. this isn't like section 4a2. this is like section 4a1 of the adea. because the 804-a prohibits the refusal to sell or rent, refusal to negotiate. making unavailable or denying.

they're all act prohibited. the work that is being done by otherwise make unavailable is to cover additional acts such as zoning decisions or land use restrictions that are not outright refusals or outright denials. and that's why the language of the fair housing act focuses on actions not -- >> you could say the same thing about adversely affect. that was an active verb, right? and it also you had to adversely affect by discriminating. >> on the basis -- >> the points you make are true enough. but they were also true with respect to title 7, weren't they? >> justice scalia i don't believe so. section 482 ban the act of limiting, segregating and classifying. and then they check for a certain result. something which would deprive, tend to deprive or adversely

affect. and it was that results checking language. >> but that language is the phrase on the basis of race sex, whatever. so it's adversely affect on the basis of the category. >> well, that was the interpretation that the smith plurality and concurrence came to on section 482. but the phrase because of race appears and you have active verbs there. you have refuse and otherwise discriminate. and the court was unanimous in finding that section 4a1 only required intentional discrimination and did not -- >> did we take into account at all that in both title 7 and the fair housing act, there was a grand goal that congress had in mind. it meant to undo generations of

discrimination and what was the phrase this court used in describing the fair housing act? to replace ghettos by integrating integrating integrating building patterns. justice title 7 was meant to undo a legacy of rank discrimination. so doesn't that purpose give a clue to what congress was after? >> well justice ginsburg the court needs to focus on the plain text and unlike the text that was passed in 1964 and 1967 which both included phrase "adversely affect," in 1968 when congress passed the fair housing act, it didn't use that language. instead it prohibited making unavailable a dwelling to any person because of race.

in common language if you say adam a.m.made a dwelling. he acting because of race. race was the reason for the action. >> if i could understand your point, general, you agree with justice scalia to make unavailable like adversely effect, they're both one way to adversely affect and what your opinion or argument is on is these extra added words in the title 7 statute, right, so that it's -- in the title 7 statute it's -- i can't even find them. you know what i mean. >> i do justice kagan. >> okay. so i don't think that that could possibly be right because then you would be saying that it would be a different statute if instead of just saying here an

employer can't make unavailable but instead it said an employer can't act in a way that makes unavailable. that would make it completely parallel to the title 7 and the adea statutes and those two things just can't mean the same thing. i mean all it's doing is to take out a few words but it's saying the exact same thing which is either way the employer can't make unavail snoobl justice kagan, i don't think it's saying the same thing and under smith it can't be saying the same thing because section 4 a-1 the court unanimously realized it didn't have the phrase that appeared in 4 a 2 which was checking in any way to deprive or tend to deprive or adversely affect. without that result-based language you can't have that. that's what ricci said. >> but the think that's different in this statute is to make unavailable which focuses on an effect in the same way the adversely affect language does

and it just does it a little more economically, but the effects-based nature of the provision is still the same. >> it doesn't focus on the effect. what smith said was 4 a 2 prohibited the act of limiting segregating, and classifying. but smith said that's not simply what it was prohibiting. it was checking to see if it was also a deprivation or something to deprive or adversely affect and that was the effects based language garage. it wasn't merely dropping in. all actions have consequences but here congress shows active verbs as myer versus holly recognized. it focuses on prohibits acts. >> make unavailable is not the same language as adversely affect. that's all that i'm willing to concede, and i think if you thought that smith was wrong which many people do, i suppose

you could argue we'll not expand smith, and smith hung on particular words adversely affect. those words don't exist here and therefore therefore, that's a reasonable argument but that's another the argument you're making. what hangs me up is not so much that but the fact that congress seemingly acknowledged test in later legislation when it said certain effects will not qualify. you know what i'm referring to. >> yes, justice scalia. >> why doesn't that kill your case? i mean when we look at a provision of law we look at the entire provision of law. including later amendments. we try to make sense of the law as a whole. now, you see this statute and it

also harks however, it will not be a violation if these effects and it says wow, this qualifies. >> justice scalia the 1983 amendments, those provisions merely restrict liability and the court rejected a virtually identical argument what the respon accident and solicitor general are making. it's case that appears at 519 u.s. 5579. >> was this cited your brief? >> it was not cited my brief. >> i'm sorry. >> the court simply wanted to clarify the matter with respect to narrow exemption but it wanted to leave it where the law where it found it. >> but the law where it found it here was very clear because ten

circuits had gone the other way and said that disparate impact was a valid action under the fha. so leaving the law where you found it and we presume that congress knows the law especially when the law is that clear and that uniform, means, yes, there will be disparate impact actions in these three circumstances which we're going to lay out for you very clearly and very concisely. >> justice kagan, it says the fair housing act only prohilktedding ats of intentional discrimination. two months before the amendment this court decided in watson and emphasized that the phrase adversely affect was the language that gave rise to the kiss dyspratt impact liability. if congress were to have known how would you -- >> adversely affect. did they have to write it or otherwise adversely affect

someone by making the housing unavailable? >> otherwise -- >> i mean it's a little crazy, don't you think, because otherwise adversely affecting someone by making it unavailable? >> i think it's otherwise make unavailable. a shortened form of that. >> otherwise limit housing opportunities in a way that would adversely affect -- congress could have used the same language that appeared in title -- >> but it said what it did. it took a body of law, some of which had held some practices as disparately impacting like drug addiction and two others and said, no, those two won't count, those three won't count. your reading of those three exemption is they were unnecessary. >> well they were absolutely doing work in 1988 and congress can take account of the fact.

>> what do you make of 1988 where someone want dodd way with disparate impact and congress didn't take out that invitation. >> gist it is sotomayor, i believe you're referring to justice swindal's amendment and the fact that congress didn't enact a provision this court does not look to -- >> but you're telling us that these amendments which said that certain types of effects will not qualify, that the purpose of that amendment was to prevent erroneous court of appeal decisions from affecting those particular areas? >> justice scalia that's part of it. >> to believe that those court of opinions are wromg and yet to exact these. even though they're wrong, they will not apply to these things. that's very strength. >> well, in 1988 when congress was legislating, it agreed on

one thing and that was in these three narrow circumstances. liability would be restricted under the fair housing act. it would be extremely odd to read it into and a recognition of the fair action liability and congress does not hide elephants in mouse holes. >> exactly. and ten circuits had already said there was disparate impact. if they didn't like the disparate impact analysis, they would have taken up the congressman's proposal. but they didn't. >> in the brief that was filed they made the same point. >> it changes -- no, no. when 1988 happened the solicitor general changed its position and it's been consistent since then that when congress adopted the three ex

exemptions, it recognized that. that intentional brief was not in 1988 and not -- it was after -- that was before 1988. the 1988 amendment. >> it was before that's right. but this court was considering the town of huntington and after the amendment. so while congress is passing 1988 amendments, this court has a case where the issue was raised. >> i thought your argument on the 1988 amendments was as follows. either the fair housing act contemplated disparate impact analysis when it was adopted in -- when was it -- 1968 or it didn't. and the 1988 amendments which made it clear that there could not be disparate impact analysis with respect to certain matters certainly didn't expand the

scope of the 19 -- of what was initially enacted, so the issue was what did congress intend, what is the meaning of the act as originally enacted. i thought that was your argument. >> precisely justice alito. >> in 1964 when the civil rights act passed and in 1968 when the fair housing act passed nobody knew anything about disparate impact. that didn't come up until the griggs decision and it was this court that gave that interpretation, the title 7 in light of the statute. so to look back oh did they mean disparate impact in '64 when reece wasn't on the books until 71 that's a little artificial, don't you think? >> the court has to construe the plain text that congress enacted

and the text in 1964 did not use effects -- sorry -- >> it has to be true the plain text of the law and the law consists not just of what congress did in 1968 but also what it did in '88, and you look at the whole law, and you say what makes sense. and if you read those two provisions together there is a thing such as disparate impact. however, it will not apply in these areas that the 1988 amendment says. we don't just look at each little piece when it was serially enacted and swha did congress think in '68 what did it think in '72. we look at the law and the law includes the '68 act and the '88 amendments. and i find it hard to read those two together in any other waying.

>> they don't refer to disparate impact. it's not like the 1971 amendment that explicitly used the words disparate impact. >> they're prohibiting something that doesn't exist, right? you're saying that they prohibit something that doesn't exist. >> they could do more work. they do work in disparate treatment cases. take the occupancy exemption. the fair housing act also prohibits the failure to make accommodations based on disability. the occupancy exemption is going to do work in that case. in the city, they were complete scrutiny. congress didn't say they were limiting these to disparate impact. they were saying we don't want these claims to go forward. >> i see you have an argument. so does the other side have an argument. but i don't want you not to have the chance to answer what to me is a pretty important question.

say there are good arguments on both sides. the law has been against you, there has been disparate impact against you for 40 years. maybe 35 years. maybe marbury versus madison was wrong. i don't think it was, but nonetheless, nonetheless this has been the law of the united states uniformly throughout the united states for the 35 years. it is important. and all the horribles that have been painted don't seem to have happened or we have survived them. so why should this court suddenly come in and reverse an important law which seems to have worked out in a way that's helpful to many people, has not produced disaster on the basis of going back and making a finely spun argument on the basis of a text that was passed many years ago and is ambiguous at best. >> if you were to believe the statute's am big was. >> my goodness, if it isn't

ambiguous it would be surprising because ten circuit courts of appeals have interpreted it the on sate way. you don't mean it's ambiguous on their side. >> in 1988 the amendmented didn't touch the -- >> if you'll do me the favor of answering my question. >> sure. >> which is it's been the law for 40 years, a little bit less, disaster has not occurred and why would something that's so well established throughout the united states should this court come in and change it? >> there's a serious eco protection question lurking here and as to why you would change it disparate impact liability and where it leads is being applied in case like this in magna versus gallagher. texas here was trying to give additional -- >> you really don't like the way it was applied. i can understand that. but there are many remedies that you have. one is you go to hud and you

say, look at what is happening. this is happening if and has the opposite effect of what you want. that's one of the arguments. try to cob vince them. and if not there, you go to a court and say, court, this is a disparate impact case and we have a justification and the justification is strong enough that it survives the empirical effect. and you see if you can get them to agree. you may win. you may lose. but what not to do is to overturn the whole law that has been in effect i'll repeat for the 19th time for 40 years with basically helpful effect. now, that's a question. it didn't sound like one, but it was one. so i'd like to hear what you say. >> sure. the equal protections here are stark. first, the government disnot explain if it's going to even force the harsh protection of minorities. if it does. that's harshly unconstitutional

and if it does,ite going to affect federal and state programs. >> let me ask you. didn't the court decide -- >> absolutely judge. >> between the situation here this court has never decided this issue. it's just the lower courts have decided it. in a uniform fashion. have we ever appealed courts of appeals rules in past years? the answer is yes. >> you have rejected the overwhelming consensus of the court of appeals. >> that's why ski the question. why? why? i'm not saying you couldn't do it. i'm simply saying why and i don't want to repeat my question for the fourth time and you began to give an answer and the answer you began to give was based on the constitutional problem that has arisen and i've taken that in and read it and do you have other answers or not?

i want you to fully answer it? >> sure. the plain text is clear. and the purposes of the fair housing act would be undermined by extending disparate impact liability to this degree. >> well, you're now talking about application, and let's go back to -- you made a statement earlier that this is going to inhibit development of blighted areas. that has to do with application in this case. if i'm right about disparate impact and i can tell you i've studied it very carefully, its intend is to ensure that anyone who is renting or selling prop oert making it unavailable is doing so not on arbitrariry artificial hurdles. policies are practices and it's the petitioner who has to identify which they are and to

explain why alternatives wouldn't work. if someone is developed a blighted area or an area subject to crime or something else, that's something they can do and that's a criteria a policy that can't be substituted for something else, so i don't know why you keep saying this is going to affect private development. >> justice sotomayor, in ricci the court reserved the question whether disparate impact vialability and race based decision-making -- >> but this is not race-based decision-making. are you saying that the 10% plan in colleges is race-based? it's an absolutely neutral policy that happens to address a

need, which is to integrate schools. >> but the -- >> so why is it wrong to have a neutral policy because none of the policies imposed here as in all other cases are race-based. they're policies that are neutral but happen to have a better impact in terms of integration. >> justice sotomayor i would disagree. at the outset, statistical disparities, based on race are used and this has the potential to -- >> that's not the case for the 10% plan that texas uses. >> absolutely justice scalia. >> you geel to the state university. >> what was the reason for it. you could say 10% is neural but it's glaring in the face that the legislature that passed this was very much race conscious.

it was the way that they saw of get ing getting a minority into colleges. that's what prompted the 10% plan. when university of texas was told the affirmative action plan was no good dham back with the 10% plan. >> there's a difference between that race conscious decision-making. in here a situation where liability is triggered based on statistical disparities. that's why the watson plurality -- >> liability is not -- triger is a good word but it's not imposed because of that. it's imposed because the lower court found rightly or wrongly, i don't want to get into the merits of that, that some of the criteria being used was -- were unnecessary and that was -- tlabld was no legitimate business reason for it. i could as justice breyer said

quarrel with that conclusion, but that's an application. that's not in the standard that disparate impact imposes. >> but what objective standard is there to measure whether it's a zarnd issue in the housing context and that's why disparate impact liebltd can lead to the functional equivalent of a quote ta system. mr. chief justice, if i could reserve the remainder of my time for rebuttal. >> thank you, counsel. mr. danielle? >> mr. chief justice and may it please the court, the remedy in this case is roughly consistent with the interest in revitalizing low income minority areas. the remedy in this case shows there's -- >> we're not talking about this case, all right? why don't you get to the legal issue if you would. >> the legal issue is unavailable. unavailable as a result-oriented

measure. you look at how many units are available on the area. you count them. that's a result. how many other units available. you count them. that's a result. it's clear from the congressional record, congress was concerned and worried about making units only available in low income minority areas that it called ghettos. the remedy that it wanted -- >> it isn't the unavailable word that it wanted. the problem is it's unavailable on the basis of race. you can say unavailable a million times but the statute requires that it be made unavailable for racial reasons. and you're saying no it doesn't have to be because of some other reason which is stupid, right? that's your argument. if it produces a result that is not, what, i don't know that the races have to be in the same proportion as they are in the general population, right?

i mean that's what your argument is. >> the argument is if in fact it's a foreseeable consequence of what someone is doing. >> no, no, no, no. racial disparity is not racial discrimination. the fact that the nfl is largely black players is not discrimination. discrimination requires intentionally excluding people of a certain race. let's not equate racial disparity with discrimination. the two are quite different. what you're arguing here is racial disparity is enough to make -- to make whatever the policy adopted unlawful right? >> no justice scalia that's not what the argument is and that's not what the -- that's not what's in the regulations. the argument is if i'm going to make a disparate treatment case that there is intentional discrimination, i'm going to start with the effects just the same place i start with the

disparate impact. i start with the effects. has there been an effect that is consistent with discrimination. i then go on to the next step. is there an interest that justifies the discriminatory effect. it could be the same discriminatory effect that was qaa -- >> mr. danielleial, i daniel, i thought justice scalia's question was whether justice included the language. that hats to have a certain kind of intext, which is not part of a disparate treatment -- a disparate impact theory, and i would have thought your main argument about that is well actually the court has held numerous times in the title 7 context, in the adae context in the rehabilitation act context n the emergency school act context

that that because of language can be read to include disparate impact claims and that it's at least ambiguous as to whether it should be read so in this case as to this particular statute. is that right? >> it's been interpreted both way. in title 7 it did not require proof of intent. >> i'm sorry. if you want to comeplete your answer. >> no. >> how is the housing authority supposed to if you have a claim of disparate impact, how is the housing authority supposed to cure the alleged problem? >> assuming you go through the steps and that there is in fact, a need to cure the problem. >> i'm sorry, i'm sorry. you have made showing of disparate impact that the impact

has adverse consequences. what is the housing authority supposed to do? at that point they're supposed to say this is what interest we have causing the racial segregation. that's what -- and they say whatever that interest is and they say it that this is -- this interest justifies our practice, our -- that we're doing. at that point in time, we come back and say but there are other ways to do it that are less discriminatory. >> is there a way to avoid a disparate impact consequence without taking race into account in carrying out the governmental activity? it seems to me that if the objection is that there aren't a suv emt number of minorities in a particular project you have to look at the race until you get whatever you regard as the right party. >> you don't have to look at the race at all. you look at the practice causing

it and you stop the practice, like in this case. >> was that, in fact, the remedy? i mean this is a case where there was a limb tarks you prevailed, and there was a remedy. so the -- there was disparate impact and what did you see as the offense to the affair. >> stop the discriminatory housing practice and then it ordered in place the remedy suggested by the state that was in fact, the less discriminatory alternatives to large extent to they had been going. there's no race goals in it, no racial criteria in it. there is -- and it is the remedy that the state says will work to stop the discriminatory practice. >> could we go back? i think you've been interrupted. the steps are first you show

that the numbers are off. then the other side tells you what the reason is for why the numbers are. you then have an opportunity or an obligation to come and suggest alternative methods of taking care of the legitimate business need, correct? >> yes, justice sotomayor. >> so those are the three steps. >> yes. >> if you can propose ways that are race neutral practices that are race neutral that will have -- take care of their needs, meaning the other side's needs then you get relief. >> for example, one of the ways proposed was do not continue putting projects next to landfills and hazardous industrial uses. >> there's the fair housing act

and then there is the law that sets up this tax credit, right? and doesn't that law say that this should be a priority for revitalize ing revitalizing? >> the law specifically says that there should be a preference among all projects that are going to be awarded for applications that contribute to a concerted community revitalization plan. that preference is honored in the remedy, and it is in the remedy. if you're -- if an application is contributing to a concerted community revitalization plan just like in the irs code, then it gets the same points as a project that is going to be in a higher income, low poverty area with good schools. >> why shouldn't we get more if the tax law expresses that

preference for the revitalization? >> justice ginsburg it could be that way if the state set it up that way. the state hasn't set it up that way. the state could set it up so there's an accrual and be awarded projects and be a preference to the con concerted revitalization plans. they did not do that. they instead gave one or two points selection criteria bonus for that kind of project. that's -- but that's a -- >> can you back to justice scalia's question, please? i want to hear your answer to it. as i understood his question, as you look at the words, the words say make unavailable because of race, and what you're saying is those words make unavailable because of race can include the circumstance where you make unavailable for a reason that has nothing to do with race. where the effect of that reason is to cause a racial disparity

of significance and it cannot be justified as the least restrictive way to bring about it. that's the point. if you're saying those words are consistent with a longer phrase i just said. okay? is there case law or other aside from this area which builds your point and says, yes those words linguistically and legally do include the disparate impact situation or can? >> this court -- two major opinions on this are, of course, griggs and smith. the same issue was wrestled with with the other courts who have found the same thing in the court of appeals. wrestling with this because of, and it at least admits it is a -- it can't -- it's a permissible reading either way. >> in smith, however the court -- the plurality opinion cited

two additional things. it didn't just say because of can mean disparate impact. it cited the effects language garage, which was the subject of some questions during general keller's argument, but it also cited the rfoa provision. neither of those -- i think the lad latter is more significant and there's nothing like that in title 8, is there? >> the exemptions are similar. he came in said and even if you have disparate impact, if it's a reasonable factor other than age, we're going to excuse the disparate impact. now, the exemptions speak to the disparate impact, and there's nothing in there that says to use it -- there's another reason you can excuse it, that those don't count. >> is that critical to your argument that the exemptions are critical to your argument? >> we think they support the use

of disparate impact liability. we think there are lots of other things. they use the congressional record, what the congress wanted to do, 3601 which congress passed to say it has been used to give an expansive interpretation of expanding enforcement. we think those -- all those things, two of those are statutory construction combine to make it at least permissible and therefore giving due deference to the hud regulation. >> if there was no disparate impact under the act as initially enacted, do you argue that the exemptions expanded the act so that it then as of 1988 included disparate impact? >> well if there was none then, they're indicated the 1988 kochk thought there was. i we don't think you can look at what congress did in 1968 and say they did not intend to cover effects. they say it time and time again.

>> that wasn't really my question. it wouldn't have much significance if they hand done anything, would it? >> no. i think they were doing it in 1988. it counts for 1988. >> did what they did in 1988 expand the coverage of the act? >> no, justice. we think that the coverage was already there in the 1968 act. when you look at all the tools, statutory construction they all point in one direction, and that is to at least be permissible if not the best interpretation of 1968. that they covered it whether it's intentional or not. throughout that record it is discussing the major implement

of racial segregation how it's brought about. it intended to end the effects of that and said it again and again. we think that in 1988 it certainly recognized the disparate impact rule, talked about it in acourt of appeals. it knew it was there, it with us being done in the context of those courts of appeals. >> thank you, counsel. general bur rilly? >> may it please the court the statutory provisions show they are a permissible interpretation of the housing act are three

exemption exemptions. they serve no real purpose without them. thai they were added in 1988 by amendment, it fwhums ber 9 the court of appeals had ruled that the fair housing act had authorized disparate housing alkt and they were added to provide the fences to exemptions from -- they're labeled add exemptions from, carveouts from -- >> i think your case would be stronger if there had been no court of appeals that had favored disparate impact. them you couldn't possibly argue, well, that was put in just to eliminate the erroneous judgments of these courts of appeals in certain areas anyway. it would be better if no court of appeal said that congress had enacted -- >> i actually think it's better

way it happened for our case because of the re-enactment. you have section 805 of this law was reenacted. you have it. so you have the re-enactment canon and you have the canon against the superfluous amendments. remember, we're this in chevron territory here so the question is whether the statute text unambiguously forecloses on the interpretation. >> can i ask a question? one concern about disparate impact is it that it's very difficult to decide which impact is good and bad. take two proposals. one is a proposal to built new housing in a low income area that would benefit primarily minorities. new housing good thing. the other proposal is to build housing in a more affluent area, would help promote integration of housing, also a good thing. which one gets credit for trying to decide the impact? the one that is revitalizing the

low impact area or the one integrating the high impact area? >> i understand that mr. chief justice, tlanld may be difficult questions. of course, the agency here charged by congress is expressly in the 1988 amendments i would add with interer pre telling and enforces thee provisions has concluded disparate impact is the right policy judgment. >> no, no. which counts. i mean which benefits? you're trying to see if there's a disparate impact on the minorities. give the proposal to the low income housing in the affluent neighborhood, that certainly benefits integration. if you give the proposal, fund the proposal in the low income area, that certainly helps housing opportunities there. >> i'm going to answer your honest question directly but i think you've got to do it in the context of the way in which a disparate impact case has got to be proven. it's not enough just that there's a statistical disparity. a plaintiff has to demonstrate that a particular practice or

criterion is being applied. >> that's the question -- >> that's a very good question, if i may just answer. i'll come back and finish my answer, mr. chief justice. that the -- that's a very good point, justice ginsburg, and we're -- although we're here defending the question, we think yes, i don't have a position on whether the this is a viable disparate impact claim and we think she's made a good point in her concurrence because it's not clear to us what specific practice that the state would justify the finds. that could be decided on a remand from the district court. that gets to what i was trying to say to you, mr. chief justice, which is you've got to apply the test, which is how to set out -- >> with respect -- i don't think that's responsive. you say you look at which provision is having the disparate