authorizations that we had on these systems because we put a number of security controls in place in the environment. we have increased the effectiveness of the security around those systems. >> but there's in consequences for not operating on a system with authorization? so how serious are you taking it? >> there are consequences. >> what are they? >> those consequences are if you, if you aren't doing the assessments, documenting them is while that is evidence that those assessments have been done, the assessments themselves are more important. the scanning of the network, the tool -- >> that's not the consequences. what are the consequences. you said there with consequences. i want to know what they are. >> the consequences that we have are we report to omb on a quarterly basis about the status of our security and our network. >> that doesn't sound like consequences. that sounds like just reporting that you're required to do

anyway. there's no consequences involved in those reports. all right. mr. esser, again, are there measures that need to be taken to get the whole thing up to the standard it ought to be? i mean, is there anything that you would recommend? >> yes, yes. we do recommend that the cio, the agency, take the steps that in a lot of cases they're beginning to take. the centralization of the i.t. governance is well along the way. what they also need to do is get a full inventory of the assets that they're responsible for protecting. and the shell project that

ms. seymour has alluded to earlier is also something that we support. we also have some concerns about the way it's been -- the project has been started and managed, but overall, we support the idea behind the shell project. >> we appreciate the gentleman. i know recognize the gentle woman from new mexico. >> thank you, mr. chairman. thank you for having this important hearing. i want to thank the panel for taking this conversation and these questions so seriously. in new mexico, we're one of the states that has one of the largest percentage or per capita federal employees in the country, in the top five. so i've got 50,000 federal employees in my home state. and i am on their side by being incredibly concerned about this and quite frankly many other data breaches.

the growing sophistication, frequency, and impact on both public and private entities by cyber attacks continue to be a very serious threat. in fact, two days after my first election, one of the key briefings by one of the national labs, which is in my district, and kirkland air force base is continuing growing concern with cyber security issues and their aggressive responses, both to be proactive as much as they can be and to appropriately be reactive once you've got an identifiable breach. and given the data breach at opm and at home depot and target, anthem, it's clear to me that not only does the federal government have a role in protecting federal employees and the information that you have, but we have a role in working to protect the public in general from these serious and continuing series of cyber attacks. but i recognize also that this is a very challenging effort and that there's not a simple solution. if there was, we could stop this

hacking altogether and have the magic bullet. as much as i want you to do that, i don't want to minimize the fact that i recognize that's more difficult to say than do. no, it's easy to say, not so easy to do. my concerns are growing given that even the best in the country are facing significant cyber attacks, including the lab who we are relying on for innovative and appropriate technologies to implement. so given that and all the questions you've had about accountability, the serious nature, here's really my question. federal government is not known for being, and i mean no disrespect by this, just stating the facts, it's not a very proactive, reactive body just by the nature of how large it is how broad our mission is how we are dependent on whatever the

resources are and what the priorities are at any given time. given that climate and the role to protect the general public and your role to protect federal employee information, what can you do that's different, that puts you in a position to be much more proactive, particularly given the nature of cyber attacks and quite frankly they're already hacked in as you're making the next modifications. anyone on the panel. i mean, mr. scott, that may be a question that's primarily for you, but i'd be interested in anybody's response. >> sure. i can think of several things in the short run that, you know, actually we already have under way. but probably long term the biggest thing is to double down on replacing these legacy sort of old systems that we have. one of the central problems here is you have old stuff that just

was not designed or built in an era when we had these kinds of threats. it's, you know, in some cases very, very hard to sort of duct tape and band-aid things around these systems. it doesn't mean there's nothing you can do, but fundamentally, it's old architectures that need to be replaced and security needs to be designed into the very fabric of the architecture of the hardware, the software, the networks, the applications. the faster we can do that, the faster we're on a better road. >> and given your role to do that in federal government, i'm not clear today what percentage of legacy systems and old architecture platforms we're still operating under and which departments are more at risk than others. what is the time frame for getting that done, and what's a reasonable course for this committee to take to make sure we've got accountability in federal government to move forward exactly in that effort? >> well, i think first thing is

we're going to be very transparent with you in terms of the omb reports, in terms of where we're at on that journey as we go through our work over the course of the year. several of the members of this committee have said they're going to pay very close attention to that, which i encourage. >> the gentlewoman -- our time is so tight to our 1:00 briefing. we would like a full and complete answer. there will be questions for the record, and we will continue to follow up. i hope you understand. >> be happy -- >> we need to give time for the gentleman from wisconsin. now recognized for five minutes. >> i'm glad we established that the federal government is not a proactive, reactive body. it's something for us to always remember no matter what bill moves around here. something to remember about the federal government. be that as it may, first question i have for you guys, this is kind of a significant story here. just out of curiosity, to see how the federal government operates, has anybody lost their job over this? has there been recriminations in

that regard? sure, we'll give you the question. >> no, sir. >> okay. next question, i don't care who answers it. as i understand, it took months for the state department to root out the russian hackers and their unclassified systems. now, apparently the chinese hackers are known for leaving behind time-delayed malware. do we know for sure that these people are out of the system by now, or could they still be poking around? >> representative, we have a joint interagency team led by dhs with participation by the fbi and national security agency who have worked with opm and the department of interior on this incident. they have assessed that they have fully removed the adversary from these networks, but it is extremely difficult to have 100% certainty in these cases. >> okay. so it could be, but you think probably out. >> yes, sir.

>> okay. final question. apparently the rumors people are now selling some of these files. is this a threat, or do we know if it's going on? and if it's going on, are we going anything to counter that? >> sir, i think that's -- the impact and such questions are better suited for the classified briefing we're about to have. >> okay. i yield the remainder of my time. >> thank you. i want to thank the panelists and everybody here. i think you understand on a bipartisan basis how serious we take this situation. to those federal employees who are affected, one of the things that should come out is in the very end of the letter, if you receive one of these letters, if does note that the office of personal management is not going to call you. they're not going to contact you to provide additional information. there will be some very bad actors that are going to try to

take advantage of this bad situation and exploit it for their own personal gain. they've already done that. they're going to do it again. and there are going to be others that are going to try to do that. so all of our federal employees, please do not fall victim yet again to somebody who's going to send you an e-mail or make a call and try to prey upon you further. it was noted in the letter. it's worth noting here from the pulpit. again, we look forward to the 1:00 classified briefing. we're going to have to hustle. the committee now stands adjourned. thank you. this weekend the c-span city tour teamed with comcast to learn about the early life of key west florida. >> they found this house for sale. they bought it for $8,000 in

1931, and pauline actually converted this hay lost into his first formal writing studio. here he fell in love with fishing, fell in love with the clarity of his writing, how fast he was producing the work. in fact he knocked out the first rough draft of a farewell to arms in just two weeks when arriving in key west. he once had a line that said, if you really want to write, start with one true sentence. >> for a true writer each book should be a new beginning for he tries again for something that is beyond the pane. he should always try for something that has never been done or that others have tried and failed. >> key west is also where president harry truman sought refuge from washington. >> president truman regarded the big white house as the great white jail. he felt he was constantly under everyone's eye. by coming to key west he could come with his closest staff, let down his heir.

sometimes some of the staff would led their beards grow for a couple days. they certainly at times used off-colored stories and certainly could have a glass of bourbon and visit back and forth without any scrutiny from the press. a sportswear company sent a case of hawaiian shirts to the president with the thought that if the president is wearing our shirt, we're going to sell a lot of shirts. so president truman wore those free shirts that first year and then organized what they called the loud shirt contest. that was the official uniform of key west. >> watch all of our events from key west saturday at 5:00 p.m. eastern on c-span2's book tv and sunday afternoon at 2:00 on "american history tv" on c-span3. >> someone sitting kind of front

left of the chamber, if you will. so when brooks comes into the chamber, he comes into the center doors, sits down and is almost looking directly at sumner. the problem is sumner is not looking at him. sumner's head is bowed. he is literally signing copies of the crime against kansas speech. preston brooks gets up, walked down the center aisle with his cane approaching sumner. sumner totally oblivious to what's happening, head bowed, signing the copies of the speech. brooks reaches him, lifts his cane over his head and says, mr. sumner, i have read your speech over twice it is a libel to my state and my relative. sumner looks up at this point, brooks is blurred through his glasses because he's so close. brooks strikes sumner on the top of the head with the cane. sumner's head explodes in blood almost instantly. >> caning of massachusetts

sumner by preston brooks. it drove the country closer to civil war. sunday night at 8:00 eastern and pacific on c-span's q&a. attorneys and legal scholars talked about the pollicization of the u.s. supreme court nomination process and controversial issues before the court. they spoke last week at the american constitution society. this is about 1:45. >> everybody is hear from the breakouts? welcome to the program plenary of the afternoon we hope to end the afternoon with a bang and discuss whether the supreme court is a failure. and if so what can be done about it? so this program is being

recorded by c-span. so you may find it at any random hour of the day or night for the next five years. before i introduce our distinguished panelists, i have to go through my marching orders one of which is to introduce myself. i'm linda greenhouse i teach at yale law school, i'm a member of the acs board, and i'm very happy to be a member of the acs board because i view our mission as helping to grow and sustain the next generation of progressive lawyers. and i've been delighted to see how many students there are and members of the lawyer chapters. so that's why we're all here. not everybody is necessarily on the same page, and that's obviously a good thing. also please mention cell phones must be turned off.

okay. i've done that. we'll have about 20, 25 minutes of q&a at the end that is to say, starting at about 20 minutes past 5:00, and there will be cards. the cards will be collected. if audience members would like to tweet about the session or their national convention experience the twitter handle, the official hash tag is #acs15. the session is approved for cme credit. for 2346gs you should consult the cle handout or the convention staff. kind of outside the box response to our topic of whether the supreme court is a failure. by that question we don't mean doctrinely. we mean structurally -- we mean,

don't necessarily mean the problems of the supreme court is one justice decides all important case. we can all agree that's problematic, but that's life. there are many thing we can talk about in terms of the supreme court's institutional functioning, the nomination process, the confirmation process process, various other aspects of the way the justices collectively or individually approach their work. what i've done rather than ask people to give us a little set piece of a talk to start us off is i'm going to throw out the question to our very distinguished panelists, who i almost forgot to introduce but i will introduce. the question of -- just to name one thing that they would that they think indicates whether or not the court is a failure and what they'd like to do about that, and we'll have a discussion about that and then

we'll move on to the next person. in the order in which they're going to speak which is not the order in which they're sitting. so on the far right is larry cramer, the former dean of stanford law school, and he now runs the hewlett foundation in the bay area. to my left, which is not where he would usually find himself seated is nelson luns from george mason law school. at the far left erwin chapel rin ski founding dean at the law school of uc irvine. to his right is elizabeth why drum, the chief council of the constitutional accountability center. justin driver on my immediate right from the university of chicago law school. so these are all very distinguished constitutional scholars, and we're very lucky to have them here. i'm going to start with larry.

is the supreme court a failure? if so, in what way? if so, what would you like to do about that? >> i wl the supreme court is a failure depends on how you define success. from my perspective it's a failure because it has way, way, way too much power, and the amount of power it's been given is insane. >> you wrote a whole book about this. >> i did write a whole book about this. one solution would be take away their power. since that's probably not so interesting here for a variety of reasons, an easier way to see this since they're going to have that power there should be some balance for accountability on the other side. there are independent provisions built into the cons turks but we pile onto that a million more as though any attempts to bake them pay heed to anything that happens outside the court is bad. so i'll talk about two of those

just very quickly. one is the lack of transparently about the way the court operates it's shocking and extreme and ridiculous. that cuts across the board whether you're talking a about their ability to take high paid junkets without having to disclose them to anybody, their ability to decide for themselves on discipline and when they will and will not recuse themselves. so just the lack of television coverage in the court which of course, they oppose precisely because they really don't want too many people to see exactly what goes on and on and on. so that would be one face. you can have a lot more transparency in what the court does and how it operates which would, i think, change public perception of the court within a useful way without significantly undermining plausible notions instead of judicial independence. the other is, if they're going to have this power, who we put

on the court -- i hope there are no justices nearby because this will be a little insulting. i'll preface this by saying i wouldn't put myself on the court either. if you're going to give people this kind of power, the fact of the matter, all the important cases the court decides, the ones that care about, the ones that make it an important institution are one that literally by definition the law runs out without giving you answer. once you've done the legal analysis and seen you can go one way or another, what's going to take you that last list bit. we used to actually put people on the court who had done things in life, had real experience and real accomplishments who had been senators or governors or cabinet of fishes, who had responsibility for making decisions in the political realm and seeing what the consequences were. with that comes o a kind of experience and wisdom. you take people like that, remove them from the partisan context and they can bring that to bear then in making those decisions when you have to make the last little bit. as we made the supreme court

more important, because this really starts around 1970, we, of course, stripped away the ability to put anybody on the court who had ever done anything like that. now, in order to get on the court, you have to basically have been nothing other than a technical legal expert and have not done anything beyond that. of course, the problem is then when the law runs out exactly what it is these people have to bring to bare on the cases also runs out. they tend to fall back on what you expect, ideology and supposition. that's what you see. i think the last justice from my perspective who had experience to bring to bear on this would have been justice o'connor. you saw that in the way she decided cases, very distinctly, whether you agree with them or not. i don't know how you do this because it's really a cultural thing. what we don't need on the court are people who have only ever been technical lawyers and in particular the ones we get now,

only been technical lawyers and never seen or done anything even aztec cal lawyers that might f might cause any controversy, and instead have people with real experience in the world that the court is going to affect with its decisions. >> one other metrics of that is something i remember walter dellin jer said back in the day when he was advising president clinton on potential nominations, is to ask whether that potential nominee, if they never made it to the court would their oh bit get into "the new york times" and what would it say? i guess by that measure ruth ginsburg would qualify. i'm not sure of anybody else. but back to your points, larry, you make two kinds of points, one on the transparency with an undertone of ethics. and then on the kind of work

product and who do we put on the court? i think those are two kooint quite different points. maybe we can discuss them separately. also on the transparency point you make a couple different points. television is an old issue one can debate, and it's been debated for many years, so maybe we can put that aside for the minute. but you mention judicial ethics and junkets and things. is that a problem? they do disclose their finances like every other federal judge and they do hold themselves to the code of ethics. the formal kods don't apply to the justices even though they abide by it is because who would judge the justices, right?

do others think these are problems that indicate that the court is falling short? let's look at the ethical part of the transparency. >> it's not so much that you point to any particular thing that they do and that thing would make a difference. it's the overall culture of the court and the sense they have that, we can do what we want or there's public out there that will watch what we do. when i take junket after junket paid for by whatever sponsors unions, corporations, pick your side do i think about that whether i do that or not does that affect how i decide? i have zero doubt that it does. do i do less of it? it's a pervasive culture on how the court operates and not so much a particular rule in the narrow sense of how it might change. >> sort of a corrupt culture at the court? >> it's not corruption. it's independence, we don't have to worry about or care.

it's all interconnected. if you're not going to take away judicial sum supremacy which i would do, you need some sense that they have to be accountable to the world outside. that's what transparency rules have to be about. >> i don't think it's a corrupt culture. i think one of the great things about our federal judiciary including the supreme court rarely are there allegations of corruption. i think what larry says is right, the ethical rules that apply to other federal judges should be applied to supreme court justices. i also think it's wrong to lead to each justice to decide whether to recuse himself or herself. i don't think anybody should be a judge for himself or herself. i think the procedure should be changed where others are making that decision rather than the individual justice. >> who would make the decision? >> i think we could create a federal appeals judges panel. i don't like being submitted to other justices because i'm

worried they'll all defer to each other. there are cases where justices are participating even though there are serious questions and we all know it's just left to that justice to decide. i think related to that, justices are reluctant to rekugs themselves because of fear they would leave, the court was a 4-4 split. i don't see why we can't leave with three retired justices, one of them to come back and sit in when one of the other jurisdiction tises are recused. i think it would make it more likely justices would recuse themselves in the close cases. >> with your ideas of an outside body of some kind how would that work? every cert petition would have to be vetted? >> no. when there's a motion to recuse a justice, it should be submitted to somebody other than that justice. who that body is i'm less interested in. i even said it had to be going

to other justices of the court to decide. i don't like the idea that a person is a judge of himself or herself. we have had instances where there were serious motions to recuse, and the justice said no, i can be fair. i'll stay. i think of this when the army spying case was decided in the early 1970s, a motion to recuse justice rehnquist. he said i think i can be fair. quite famously there was the incidence where justice scalia went hunting with the vice president and participated in case where the vice president was involved. and justice scalia wrote an opinion saying i can be fair. i can give other examples. it's much better when there's questions about whether a justice should be recused to submit other than to that justice. >> i think it's possible to put larry's comments side by side and think about the way in which the justices are ubiquitous figures at law schools and on

c-span and one place we don't see them in their oral argument capacity. i do find that distressing and difficult to explain. it seems like justices before they join the court are often attracted to the idea of televising the proceedings. it's an argument where we need cameras in the courtroom but why hasn't it happened? it seems as if the justices are going to go around and give talks, then they should be seen in their capacity. and i don't think that it's because people would be 'em barr rased about the court. i think it's an alert bench. i don't think they have anything to fear by allowing cameras in the courtroom. the argument is it's about -- that justices or the lawyers are going to play to the galley, i think that sort of thing already happens.

i don't think that would introduce a new dynamic. i think it would be wise of the justices to let cameras in the courtroom. i don't think there's a serious argument against it. >> can anybody think of an argument against it? >> i think the argument the justices themselves makes are concerned their comments might be taken out of context or something like that. we already have the audio of their comments. that doesn't really seem to happen that much. i would say it's perhaps a middle ground between the arguments against having cameras in the court is at least to have live audio of the arguments. i think that would help especially we see in some cases, very high profile cases of intense public cases. >> in the marriage cases. >> they released them earlier but still later that day. as those of us who are members of the snow, they pipe in aud yes into the lounge. it seems technologically very easy for them to do that. i think that would be a very

good middle ground for the court to adopt if it wants to make it more transparent. that's only to the good if the american people can be more engaged and knowledgeable about what the court is doing. >> in a way i think the current system is actually more problematic in that from time to time the court will acknowledge that there's a major case and they aisle put out the same day audio which puts the court in a very odd position of identifying the important cases. let's assume that every case they grant is important. >> what's the difference between hearing the audio immediately after the argument with c-span putting still photographs of the justices and lawyers there and watching it live two hours earlier? there is no distinction there. >> having it put to the john oliver dog reenactment, is that better? i don't know. the dogs are cute. nelson? >> i have a little different view on this.

larry said one of the problems with the justices is they think they can do anything they want. i think to the extent that's true it's a much worse form of corruption than any of the things we've been discussing about recusals and televising the proceedings. >> do you agree? do you agree there's a problem that they can do anything they want? >> yes. >> now you're supposed to say [ inaudible ]. >> i do have some ideas about that that. i can give a little background. i went and read the confirmation hearings of the last four justices. when they were asked what they thought the role of the judge was, i found the answers. if i read the answers, you wouldn't be able to tell which nominee it was. they all said exactly the same

thing, the job of the judge is to apply the law to the facts. my personal views on anything have nothing to do with being a judge, a very constrained narrow legalistic law. the two most striking cases were president obama's nominees both of them were asked, well, the president said it's all about your heart. that's a really important part of being a judge and that's why he picked you. they both said oh no, i don't agree with that. both said they don't agree with that. so they say -- and all of the senators seem to agree on both sides of the aisle that's what a judge is supposed to do. i think it's not completely impossible that they could do that a lot more than they do now. recently i saw a report of a talk elena kagan gave at a law school where she described the conferences. she said there were two kinds of

conferences. ones are the ones about the big cases that make the front pages of "the new york times." those conferences are very short. nobody discuss it is case at all. they just say how they're going to vote. i guess she said they all think they have to explain or discuss the case with each other they would annoy each other and so what's the point of that. but then she said there are long conferences, and those are about the cases that nobody except lawyers who specialize in that field pay any attention to. she said often those go on for quite a long time and they spend their time trying to figure out what the right legal answer is and they don't come in with settled views and they try to work it out. my proposal would be that congress do a few things to encourage more long conferences and fewer short conferences. i have four proposals that i worked up with my colleague craig learner. i'll state the conclusions without giving any of the reasons. first, congress could apply all

opinions of supreme court majority to be anonymous. in effect universal opinions that would include the concurrences and discents. second they could expand the jurisdiction of the court. right wingers often go for these jurisdiction stripping ideas, cut it down and let them do less. i would say let them do more, and there's a no longer used statutory mechanism by which courts of appeals can certify a question to the supreme court. they think the lower courts need more guidance. the supreme court doesn't like to be told which cases they're going to hear so they never, ever any longer accept these certifications. my proposal would be for every krert grant on a federal question case, they have to take one certified case from a court of appeals. that will give them more

opportunity to try to deal with the issues that the lower courts actually think they need guidance on. the third thing i would do is take away the law clerks. >> that would break some hearts. >> the law clerks have a pernicious influence. to the extent they serve a valuable function in doing research, that could be assigned to the office of the librarian and the court, and the results of that research would then be shared with all the justices not just little research projects aimed at a particular justice, and these clerks and librarians offices wouldn't be permitted to draft opinions at all. right there requiring the justices to write their own opinions, would have some of the beneficial effects of term limits because if they actually had to do their own job, we

would have fewer justices who stayed in the saddle past the time when they could no longer mount the horse. my last suggestion would be that we bring back circuit writing. for a hundred years they were required to do circuit writing by congress even though they hated it. they probably managed to get rid of it. bring it back. they have plenty of time during the summer. they could spend less time in the alps and more time sitting on some of the lower courts doing real judicial work. i think these are all marginal changes, very modest proposals. they won't give us the perfect court. that would only happen if we appoint eight more justice thomass. >> wonderful blue sky proposals that i actually -- you and craig have an article which i assign

to my students every spring. i wait until the very end of the term, so they have formed their own views, and then i present them with yours and i think it's one of the favorite as seened readings of the whole semester. >> i'm often good for a laugh. so anonymous opinions. some of the european courts take a different approach but i think approaching the same problem problem is they don't allow dissenting opinions. you can allow anonymous opinions without concurring or disaccepting opinions. have you ever thought about writing a new article about that? >> no. i wouldn't do that. the european judicial culture is

different than ours. i think dissenting and con kerg opinions can serve a purpose partly in disciplining the majority, partly by informing the bar about disagreements within the court. what i think making them anonymous would do, insisting on unanimity wouldn't necessarily do is curtail a lot of the showboating. many opinions nowadays are not written for lawyers. they're written for "the new york times," written for case book editors. there's a lot of stuff that in my view doesn't belong in judicial opinions in the opinions of many of the justices. that's not an ideological thing. anyone who follow it is court at all will know who i'm talking about on both sides of the ideological divide. >> the dissenting and concurring opinions would also be

unanimous. >> they would be anonymous. >> anybody have reaction to that? >> i think having authored opinions is important because if we had anonymous opinions i think it would make the transparency problems that larry mentioned perhaps even more pronounced because i think it's important to be able to say, you know justice scalia authored this opinion and it is in contrast to these three other opinions that justice scalia has authored or joined. i think that's an important part of sipgt sizing precedence and also allowing the public to hold justices accountable for if they deviate from precedent and from their own stated views before. i think not being able to do that would be harmful. >> that's back to larry's point. where is the accountability with

life tenure? >> i'm not saying that they're necessarily very sensitive to public outcry but i think one one -- if one takes seriously one's role as a jurist you want to be seen as principled rather than unprincipled. if you decided willy-nilly due to your preferences in that particular case there would be a sufficient outcry as we've seen in cases where i think it's important to hold justices and say, you voted this way in rash, you should vote this way when obama care comes before you. if you don't, maybe that's motivated by politics as ap op posed to a principle statement of the law. >> i think ultimately the way we hold the supreme court accountable is through presidential elections and senatorial elections. who we elect for president in 2013 especially if there are two terms is likely to fill four vacancies on the supreme court.

there should be no issue in the 2016 presidential election more important than -- >> i've got say that statement which is sort of true and is said a lot is insane, right? something has gone seriously wrong with your democracy when the statement that's made is what we really need to worry about when we choose president and members of congress is who we're going to put on the supreme court. it is a really clear statement of what the core problem is. i'm -- i'm not -- i would absolutely get rid of the law clerks for exactly the reasons nelson has. what do you have to make them -- so accountability -- the court is acutely self conscious of the limits of its own power. the problem is where we have set those limits is so far out there that they can go really far. the question is what are the devices you have to reproduce some semblance of modesty as

compared to the views of lots of people who disagree with them. as i say, i don't think that's incorrect, but it is just, whoa, what kind of democracy is that where it's like the unaccountable branch we have to worry about -- democracy is great except for things that are important. those things we have to give to the oligarchy. >> the question is are we as a society better off having ans institution like the supreme court and federal judiciary largely insulated to define the meaning of the precious rights and the constitution? while i'm tremendously critical of the court i think we as a society are better off with the system. >> no, we're not better off. we didn't have that until very recently. they have not across the courts kours of american history -- what always amazes me is the progressive audiences should hold this view so much more strongly than conservative ones. across american history the

court has been a reactionary institution far more often and in way more ways than it has ever advanced progressive clauses. >> the only thing i can say is that when i think of the people who i have represented through my career, criminal defendants prisoners, a homeless man before the supreme court, guantanamo detainee, for them it is really the courts or nothing. to say we're not going to have the courts available -- when is the last time a state legislature adopted the law to expand the rights of criminal defendants? >> where are you living? they're doing it all the time now. these things come in waves. the delusional capture that a brief and exceptional period in american history has put over the whole of american history. all the progressive reforms in criminal justice that took place both in the run-up to the 50s and 60s, and there were actually quite a few of them. we tended only to focus on the things the supreme court did without paying attention to the

parole reform. where did that come from? what's happening now is all in the face of a really radical conservative supreme court on criminal justice rights where we find in the one area where we've got breakdown in polarization is prison reform and criminal justice issues. you have to take the long view -- you say the people you represented. you were the lawyer during exactly that period. i see that. it's nat that we never had a period. if you have to look at the course of american history it's hard to see the court as a progressive institution. i don't care one way or the other. i actually believe in democracy. >> if i can go back to elizabeth's point which i disagree with, i think it's been a pernicious development that the justices feel compelled to stick with their own personal precedence. it used to be that the press precedence were the decision of

the koufrmt and oftentimes very commonly, once the court decided an issue the justices who were in dissent simply accepted that precedent and that was the precedent of the court. in recent decades we've seen an increase in the idea that each justice has to be consistent from case to case. >> some people call self stare decisis. >> right. and i think that contributes to the court behaving less like a court. it's true that i suppose if the opinions were anonymous people could change their positions for political reasons. they can do that anyway because there's not a single justice in modern times who hasn't been able to hire law clerks who couldn't find a way to distinguish away that precedent for any reason. >> i agree with nelson on the idea that the justices should not fear changing their minds as much apz they seem to. it seems to be that that causes

that great pain. one encounters lash brat explanations as to why they voted to uphold the statute and voted to invalidate in lawrence versus texas. if they could explain what led them to change their mind, i think that would be advantageous. on the question of accountability and how we hold justices accountable, i think one of the ways we hold them accountable is by having them sign their names to the opinions themselves, that they write a dissenting opinion in 1986 justice harlan wrote that opinion, right? or they wrote an infamous opinion on behalf of the supreme court, i think it's helpful to be able to identify the particular justice that wrote that opinion. i'm not even sure it's actually possible to have anonymous opinions anymore given the sophistication of computer databases that would be capable of knowing who wrote the opinion. that takes us to the question of

law clerks, right? as to the law clerks, i think the law clerks -- it's not all that long ago that i was a law clerk. i think they actually at least are capable of adding something valuable to the institution and perhaps with most important and not so much the drafting of opinions, but instead the voice of a younger generation. many of the justices are in their 70s and 80s. there are frequently cases coming before the court involving technological issues or issues of swirling social import, i have think it's incredible valuable to have someone in their chambers to have someone they can talk to. >> a really funny selection process for people to bring that particular expertise to bear? i got a lot of students at stanford who i would say why don't we pick them if you want to inform them about technology.

>> like i said i probably shouldn't have been a clerk either. >> your mention of the age of the justices and the needs or the utility of bringing young voices into their chambers, of course raises the whole topic of life tenure. so i think there's a lot to discuss about life tenure. i'll throw it out and see who would like to get rid of it? >> i would. i see 18-year non-renewable term limits for supreme court justices. life expectancy now is so much longer than 1987. clarence thomas was 43 when he was confirmed in 1991. i don't want to sound ideological. elena kagan and job roberts were both 50. imagine these three justices stay until they were 90. the age in which john paul stevens stepped down. that's too much power to be exercised by a single person for

too long a period of time. also, too much terms on the history. richard nixon had four vacancies in his first two years as president. jimmy carter terms would mean every president would have a vacancy every two years. that would be far better. >> you want to take that on? >> i don't have any objection to term limits. 18 might be too long, maybe two might be better. you could have rotating circuit judges serving on the supreme court for two years a piece. that might be even better. >> i think that i'm opposed to term limits. here are some arguments against them. one would be the constitution of the united states right? there is article three section one which talks about the tenure the justices have. assuming one were even able to have a constitutional amendment which i think would be required to bring that about, that seems

incredibly unlikely. i worry about the costs of the constant churn of supreme court justices. if there are, you know, turnover every two years, one could imagine the justices having incentive strategic arguments about whether to hear a case or not to hear a case. that causes concern. some of our most distinguished justices served for, you know more than 30 years. think about chief justice john marshall. he wrote some rather important opinions that shape our constitutional universe after he'd been on the court for 18 years. the same could be true for oliver wendell holmes. before we start thinking about opposing tenure requirements i think we should be really careful. one of the reasons we should be careful is because of -- i do think that it incentivizes justices to think about what they're going to do after they

leave the court. you know and that seems like a mistake to me. earl warren was the justice of california and then joins the supreme court and votes in a way that's incompatible. i think the way he was vote the way he did he didn't have to think about the next election or what was going to come after leaving the court. so that is to say there is a real virtue in having people go to the court and understand that's the last position that they're ever going to hold in their professional lives. >> i think -- it doesn't require a constitutional amendment. i think the crampton proposal which says it does not require a constitutional amendment is lawful. you see the arguments on both sides. unbalanced. i would favor term limits. think of the justices over time that have served long times and

the vast majority don't do their best in their later years and they're so out of sync. a regular turnover you can preserve judicial independence and premacy and not have the court worry about the way it's moving. i don't think a justice would have too much trouble finding a good job after stepping down off the court. most law schools would probably hire them. but you know the confirmation process would have to change obviously. it probably would if it was every two years. i mean the rudeinization of it itself would are bring the stakes down for a single appointment. >> one answer to justin's concern about losing the best work of the older justices might be that with regular turnover there wouldn't be such an incentive to put the very young justices on the court.

so i think one can make an argument that the framers' view was that service on the supreme court would be kind of a capstone. and not something that would come early in somebody's legal career. i want to talk a little bit more. because people may not be completely up on the various proposals that are circulated. we'll leave aside hadthe every two years. looking at the 18 year, there is at least an argument it could be done without a constitutional amendment if somebody got life tenure on the supreme court. but the actual active job of serving as a working day-to-day justice would be for the nine most junior people of the group. am i right about that? >> this is a proposal that crampton have proposed. they say it wouldn't require a

constitutional amendment. i'm skeptical. i think it would require a constitutional amendment. but here i may disagree with justin about the impossibility of the constitutional amendment. when rick perry ran for president four years ago he proposed what i suggested. 18 non-renewable terms. when you have conservatives like rick perry and liberals like me proposing it, maybe it becomes plausible. i have spoken to a lot of audiences about this. it's interesting on the rare time i get interrupted with applause, it's when i'm proposing 18 year term limits. i didn't do that on purpose. there is more support than we might imagine. it would take time to build the support but i don't think it's an impossibility. >> you had mentioned your concern about the confirmation process and the hearings and so on. i guess another people that

support the 18 year term say is that if -- that would mean every president would get two nominees. so that you would avoid the entrenchment issue that would devolve upon the lucky presidents or unlucky presidents like jimmy carter who had none. so there will be an expectation of regularity that might lower the temperatures the stakes somewhat of the confirmation process. does that -- is that something that appeals to you? >> well, lowering the stakes appeals to me. whether this would do much toward that end, i'm skeptical about. i think the high temperatures that occur at supreme court confirmation hearings since the

bourke hearing are new and contingent on the fact we have a somewhat closely divided court and that kind of thing. i think that's probably a more important factor in driving these things. >> i want to give you a chance to weigh in? >> i think that i'm not sure it would lower the temperature at all. because, you know, part of what raises the temperature is the fact that these very high profile, very important cases get to the court in the first place. which i think larry is probably a bad thing. you know that would still happen, even if we had the 18 year term. we would have heated confirmation processes. i'm not entirely sure what we get out of the term limits i guess. and you know, i think a perfect example of counterpoint to the idea that justices toward the -- long period on the bench don't do their best work or aren't as feed into current society, you know, our speaker tomorrow

justice ginsberg, she's the rbg at the end of her career. you can't get more embraced by the younger generation. people are getting tat tos on their arm. if we had term limits we wouldn't gotten her best dissents. a lot of this comes back accident. jack ballkin did an experiment of what would happen if we had 18 year limit. roe v wade would have gone the other way. >> ruth ginsberg is said maybe roe v wade should have been the other way. it's not that there are not individuals -- here i can speak with experience. the last term of chief justice burger, six of the justs were in their 80s. i will tell you they were not all there. it's not the law clerks stepped

in and we did we wanted. we didn't. what we did we would extrapolate from their past opinions where we thought they wanted to go. you do see this you see a lot of the elderly justs become exaggerating versions of their younger saves in their later years. unbalanced. think about important things you might want to construct for your own lives. who do you want indo you want? do you want to get people at the tail end of their lies and their abilities are declining or people are at the peak of their powers? i'll take the people that are at the peak of their powers. there's no reason this should be different. >> if we're going to assess the supreme court one part of that has to be the lockner. those 40 years were a terrible

failure by the supreme court. they did damage to people in society. in a large part that was because justices had remained on the court for too long. i think the advantage of 18 year non-renewable terms is saying that we will have new justices coming on the court but still give 18 years, which is a long time to make a mark on the constitution. and it allows for a long learning curve. >> i'm curious given the arc of your own career and your own scholarship, does that year of clerking -- is that what gave you the view that judicial supremacy is overrated? >> absolutely. part of it was a clerked for judge friendly the year before. it was an amazing experience. he approached the job the way i had been taught you were supposed to. i got to the supreme court. and the clerks will tell you i was angry the entire year. it was such a disappointment in every single respect. some of it was that aging issues, and it