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 had nothing to do with the

ideological stuff. it was the way they worked. sitting inside that bubble realizing what an incredible bubble you were in. the complete unawareness of real consequences just in the few cases i thought i had some sense of what they were. i didn't come out of the court -- it took me a long time to get to the views. we were in law school at the same time. he was a year behind me. we had this argument at the time. i was a staunch defender of judicial supremacy at the time. he was not then. >> i'm still not. >> well you know, took a long time to come around. a lot of it was because of the kinds of arguments urwin makes. which i don't dismiss. there is a really hard judgment -- obviously there are benefits from having the unaccountability as part of the mix. the question is how much do we need? we've gone way further than we need to with my view. there is some notion that the court is anything other than aal

hundred pound political gorilla and always has been. we don't need to be afraid of doing things that would make them -- get them better information. make them more aware and think they need to be more away and so on. >> how would was judge friendly when you clerked for him and how long had he been on the bench? >> he was 82. he was just extraordinary all around. i talked to the people who clerked for him ahead of me. there was still a decline but he started a a high level. it must have been amazing to see him when he was in his 40's or 50's. >> maybe it's worth pointing out that judge friendly decided not to go until his powers were gone. he decided not to stay on the court until his powers were completely gone. >> yeah. yeah. >> if i understand some of your recent work your view is that the court hasn't necessarily

been countermujoritarian enough. that's a power that the court has to you know for the good that it shouldn't be shy about, about using. so i want to give you a chance to talk a little bit about that. >> sure. so, yeah, i think that the supreme court has fallen down in vindicating the constitutional rights of marginalized citizens. some people would say that's because the supreme court is fundamental capable of vend vindicating the rights. it's too fragile an institution. when it attempts to vindicate the right, it makes matters much worse. it can't come to the rescue of marginalized groups. you hear this all the time with respect to roe versus wade and furman versus georgia. even brown people would say that

is a 7th grade concession of the court coming to the rescue of racial minorities is inaccurate because the nation of the whole was committed to, you know, racial egalitarianism. that oversimplifies brown. the north was not the land of racial enlightenment we pretend. more important than that, i think the supreme court does have the capacity to vindicate rights even for unpopular groups. if you think about kennedy versus louisiana from 2008 decision involving capital punishment for individuals who raped children the court says that's inconstitutional you can't do that. if you -- >> that's a decision based on a mistake of fact. >> yeah, right. if you poll that opinion, it's not a great surprise that people would say, the majority of people would say yes, you can inflict capital punishment on those sorts of people. if you can about texas versus johnson for that matter and the

first amendment context, flag burning, you poll that question more than 80% people should say you should have a law against that. the court invalidates those measures even in the face of amendments. if the supreme court hasn't done a good enough job it's not because it lacks the capacity. i think it's because of personnel that's on the court. and their desires and their constitutional visions, not offering enough conception of -- to afford people those rights. so when one looks back over the appointments, from earl warren which i think is the beginning of the modern supreme court in 1953, through justice aleta's nomination, there was 23 justice justices 17 of those were

pointed by republicans, six were poont appointed by democrats. ten of those happened in a row. when one thinks about what the supreme court is capable of doing, i think it is mistaken to only look at sort of history and not think about what the supreme court could do going forward. i really do worry about people who are in law school today constantly hearing, don't file lawsuits, instead go to the public square. go to the state house that's where the real change is created. i'm not encouraging people not to go to the state house. there are some people for whom going to the courthouse is the only option. the court has stepped in. and successfully vindicated rights on at least some occasions. it's a powerful institution. citizens united is a perfect example as a powerful institution. i understand you regret that power, but it is a powerful institution. the question is, what that power is going to be used for. >> you mentioned when you were

talking about the problem that the courts not acting as a court. >> more so than it used to right. >> is it acting -- just to play off what justin was -- is it -- what is the court? if you had to identify. >> i guess a kind of monster. it really is two courts. i think the -- what justice kagen said there are two courts. there's the political court and the legal court. and for a variety of reasons, the legal court is smaller than i think it should be. and the political court is much bigger than i think it should be. maybe if they had different justices up there more in accord with my views on how to

interpret the constitution i'd feel differently and it will be fine to have a political court. i don't think no. >> i strongly disagree. i think the assumption of that statement is there's such a thing as value neutral judging. there can be law apart from value choices. they're impossible. when you're deal ing with the constitution you're dealing with a document written open text language. what's cruel and unusual punishment? due process of law? there's no way to decide that without value judgments. no rights are absolute. there is no protection under equal protection. it's balancing. we call them in all levels of scrutiny. the court has to decide whether it's a fundamental right racial, even with rational basis the court has to decide is there a legitimate government interest. in the marriage cases even if they choose rational basis they

have to ask is there a legitimate government reason from keeping gays from married. there is no legitimate government reason. all of these require a -- [ applause ] >> all of these are legal questions. all of them require a value choice. and there's no way of having value neutral judging. it's a mistake to say there is two courts one political and legal. it's all legal and it involves value choices. >> it's interesting social science research that indicates that the public understands that. so that although there's a political culture that forces judicial nominees to say, as nelson said, my job as a supreme court justice is to apply the law to the facts. the public knows that's not true and they're okay with that. that you can hold two thoughts that you -- in a way the public

seems to want judicial nominees to say that. let's assume or else they wouldn't be required to say it, the politicians would require them to say it. on the other hand the public well understands that judging is a value and selected task. right. elizabeth, i haven't given you enough chance to weigh in here. >> i don't know that the public is necessarily okay with the court acting like just another political entity. i think that's -- >> that's not what i was saying. >> there's an understanding that, you know the justices have, you know thoughts and experiences and so forth. you know, i think maybe, you know, getting an increased diversity of those experiences, talking about justice o'connellero'connellor as having experience. getting fewer prosecutors people who have been in public

interest. not just law firms. that would help. the idea of the court as justin mentioned as a protector of rights is something that we shouldn't overlook. the idea you could achieve tling things through the court is important. today is the anniversary of leaven versus of virginia. most of the states didn't have bans on interracial marriage. there was still states that had that law. even if the court is not necessarily leading on these things. many would say in the marriage equality case they're not leading. but there are states that will not without the court telling them recognize these constitutional rights. i think that's an important role of the court that justin mentioned. >> all of this is completely fair. what's bizarre is the nuance of having a debate.

nelson's position is not that there's value neutral free analysis that you use. there is a big difference in the relative mix and when you take a case and how you decide it based on that. they are our legal considerations. i think i'd feel comfortable 40 years ago would a case like that be in the supreme court. it's ludicrous it's there. much less it could come out the other way. it tells you something has gone seriously wrong. we seem incable ofpable they should have a roll. brown is interesting, because at the time brown was decided there is no question that the idea of judicial supremacy was not established. as part of the background political culture. you see reflected in the pushback at the time. what you got what made this work was not that the court had no role nor did it do this. it's the culmination in the legislation you get in the 60's. which the court is one piece.

so a popular political movement that has nothing to do with the courts. the notion you don't want people -- go out into the -- to be engaged in the political -- so the question is how do we find a balance where we don't have to say, the court is going to be our protector of rights and therefore no matter what they do no matter how unprotective it is we have to protect their authority. every once in a why they'll do. robert frost they sent those opinions around to the editors see we're not conservatives here a liberal one. that's a way in which the court does this. they'll toss a bone and do 25 other things. that goes both ways. this is not whether you're a liberal or conservative. the question is can we have a system like we did through most of the american history. what are the devices to push

back? what are they? the thing nelson lists is good. jurisdiction stripping is good. court packing is fine. who did this in american history? jefferson, jackson, lincoln. teddy roosevelt, franklin roosevelt. not a rogue's gallery. it's only in the last 50 years we have moved to the position that judicial independence must mean is that any of those devices, all of which are plainly constitutional on the face of the constitution, any of those devices are such a threat to what the court is going to do that we can't do it. we need to be balanced and recognize the push back has to come both ways. sometimes the court is push. or a bush v gore the day after when gore comes out and says you may disagree with the opinion but it would be unpatriotic. in 1876 that same -- would not have happened. the court didn't feel it had the ability to step in even though there were people pushing to do

that at the time. it's that dynamic we need to be aware of. and so we do need some devices. i mean, i think it's good to talk about what they r. term limits are a possibility. we have moved in our public debates so far from that. right? i mean honestly my view is depressing sometimes my fans are ralph nadir and newt gringingrich. something is wrong when challenging supremacy is so fringy. this is what you get. >> it's not an accident that inthe notion of challenging it is a phenomenon. we shouldn't leave the story off in the 1930's. we have to think about brown. there was push back as you say in the form of most prominently the southern manifesto where a group of southern congresswoman

and congressmen had their own interpretations. one can use that to stand for the propositions it might not have been wide spread. that makes people uncomfortablewhileuncomfortable when people are taking the constitution in their own hands. it was more wide spread in the 1950's as judged by the results of the sirnouthern manifesto. people responded who are you all? that is eisenhower said something to that effect and many others said this who do these guys think they are. it's not an accident that given our modern historical moments that individuals and many individuals are made uneasy when they say i don't care what the supreme court says i'm going to go ahead and do it. >> that was always true. that was true when jefferson was president as well.

they would say there's been this debate. there have always been people typically it was -- just very quickly. the judicial supremacy position was the conservative position. al whatever was the conservative -- that was the -- and the progressive position was always in favor of democratic authority. all that happened after brown and it takes time. it's the left flips and the right doesn't. debate shifts from who has authority. for the first beginning in the 60's it shifts to how do you interpret the constitution. that is a new development. not that there hadn't been those positions before, but it shifrtsts. the left is a short sighted action flips and now we have an agreement from left to right it is the court that should tell us what the rights are and what the constitution means. now we have to wait for someone to die or retire or get tired of

the job or amend the constitution which is nearly impossible in order to undo what they've done. >> a little bit of flipping going on today. seems to me on some of the various on jurisdiction like standing. in the not too distant past it was liberals who wanted a very generous ideas in standing. and now all of a sudden you know basically any plaintiff, the plaintiff in burr well who was about as sketchy as they come, let's not investigate their standing. let's not question that or let's not question the standing of abigail fisher to bring the fisher case -- even though she's graduated from college and there's no re-dressability. and maybe that reflects what you're talking about. >> i think there you have to separate the litigants' choices from the court decisions. i don't understand why the university of texas didn't challenge abigail fisher's

standing. i don't know why the solicitor general's office didn't bring a challenge of standing in burrwell. there it's not the supreme court. it was the litigants' choices. in terms of the supreme court, i want to be clear. we shouldn't think of the supreme court as liberalizing standard. think of the last case from the roberts court. two years ago where the supreme court ruled 5-4 that no one would have standing to challenge a federal law giving the national security agency the ability to intercept communications. the reason why nobody could show their communications were intercepted by the nsa because the nsa doesn't tell people. that is a terrible decision in terms orphstanding. very restrictive. that's the most recent ones. >> when some of you all were clerking, the court took about twice as many cases or even more

more than twice as many cases as it's deciding today. some of the things i'm hearing, maybe they're still taking too many cases what do you think? the court deciding too much? >> i think they're not taking enough cases. they're just taking the wrong kinds of cases. there are lots of important decisions decisions that need to be resolved. a professor did a study of the court's granting practices. what he found was that there seems to have been a cultural shift on the court away from an obligation to reserve circuit splits. they can find something saying it's not a true split. he said justice white was the last justice on the court who really took that obligation to clarify the law where the circuit splits, take that

obligation seriously. he suggested with a lot of data that pretty much gone. i think that's unfortunate. they should take more cases that actually involve more law and less politics without suggesting that you can have a pure version of either one ever. >> i think -- i don't think it matters. i think -- what i said at the beginning, there's a reasonable number of cases they could take more that actually are technical legal casesability. you need somebody to resolve them. they have the expertise as judges and law clerks for them. >> you want to get rid of the law clerks. >> they would be do it for other reasons. it's the second batch. in any given term -- it doesn't matter whether there's 75 or 150 cases, there are four or five typically that are the big cases. and that are why we're here. they're the ones we care about. and there would be those you know, in either domain. so i don't think you're going to

affect the fact there are these momentous issues the supreme court has assumed and always has a role in helping resolve those issues. i don't think much would change. i don't think it changed in the move from 150 to 75 cases. >> i agree it wouldn't change much. it would be a marginal change. >> you think every circuit split ought to be? >> depending on how you design a circuit split. it would probably be impall. i should point out there was a time when the supreme court decided hundreds of cases every year with no law clerks. >> and with nor opinions. >> they decided the cases though. they decided the cases. they were acting like judges. that's not an impossible thing for them to do. >> are there any kinds of cases that the court is ducking or failing to take note of that they should take?

>> second amendment cases. they recently denied cert in a second amendment case and it drew a dissent. >> identify a systematic category, instead every time there's a conference, i see cases where there's a real circuit split that requires a solution. inexplicable cert is denied. this year the court had oral arguments in 68 cases. last year the court decided 68 cases. year before it was 73. before that was 65 which was the smallest number in my lifetime. nelson points out as recently as the 1980's the court was deciding 160 cases a year. i think there are cases where there's split among the circuits and the court is not taking them. a pernicious consequence of the smaller docket is the opinions have gotten longer. i can least show you a

correlation the number of cases goes down the length of the opinions go up. i don't think that's led to better analysis or better opinions. >> it's like the defense of opinions -- also in defense of the -- there was criticism about the opinions maybe not being written for lawyers. you know, in defense of interesting and maybe perhaps long opinions, i think that is one of the rare instances where we do have some transparency from the court for the public. and if that is the way that the public generally gets its information about what the supreme court is doing. i think having the opinions that is both interesting and understandable for the public is a good thing. i would note on the cases that the court should be taking, i think there are, you know cases involving criminal defendants rights that the court is not necessarily taking. i don't know if that's because they're not interested. but i distinctly remember a day that the court granted the case about the destruction of fish and whether that counted as

evidence drukzestruction. they denied a cert petition on a circuit split on whether you can have a non-unanimous jury sentence a person to a life of hard labor. i think that some of these cases involving -- they're not sexy social issues, or high political issues. they don't have big business interests behind them. but they implement incredibly important constitutional values and access to courts are really important. >> one area that i would identify as involving cases that the courts should take more of but seems to be reluctant would be in the context of student rights in the elementary and secondary school context. they haven't heard a case in the last six terms. during the roberts court the redding case involving the strip search and the fourth amendment and so-called bong hits for

jesus case, right involving student speech. there are three sort of major cases that the court has decided. it seems not to want to get involved. there are lots of discussion about the supreme court is ill equipped to be able to get involved in this arena. this is a place where i think they shy away from getting involved. perhaps because sometimes these cases are contentious. when we think about our schools we think about who we are as ainationa nation that effort to stay out of that is mistaken. the lower courts need guidance from the supreme court in order to deal with the cases effectually. >> one of the major issues in the area that the circuit courts are at odds about is speech that happens outside of the school context. and you know on a home computer

say, or you know in some other way that ultimately comes back into the school, right? and so that doesn't fit into the traditional categories in any way. and so that is one of the major issues. there was a case involving religious speech by students about homeosex homosexiality. these are difficult cases but they are common nftin the circuit courts. there was a case the court denied involving students wearing the american flag to school in the ninth circuit. and being told that was impermissible. that sounds insane. the exact context was on the day of cinco de mayo and this was seen as a sign of rebellion and maybe even -- so that was a very divisive case in the lower courts. and it seems like there would be

a place for the court to step in and get involved in this area. >> is that the kind of case we need the court for? >> you know i have no opinion on that. i don't. i don't think i know enough to really say. >> so you had mentioned clerk stripping as a valid way of constraining the court if the public so desires, the most recent occasion i can think of for that was when some people in congress got concerned that the court was relying too much on quote, foreign law. and there was a house resolution that was passed not with the expectation that would result in some serious piece of legislation. kind of expressive protests that the court and any justice or

judge who cited foreign law should be impeached. it's come down to that. what court stripping as appropriate constraining mechanism? >> what then would stop congress from adopting an unconstitutional law? even a blatantly unconstitutional law by restricting courts? if congress can do that we really have lost what the judicial branch is there for:. there was another example when you said jurisdiction stripping you mentioned the topic of budget cutting. yesterday the kansas legislature passed a law if the kansas spoert decides in a particular way, if anything is a violation of separation of powers it has to be that. >> so just -- i want to jump in again f. again. if you have a simple minded of the way democracy works that's

the way of looking at this matters. that's why looking in the past is helpful. the idea with these devices is once the threat of them is realistic you seldom need them because the court is conscious of how far it can go. and what happens -- the jurisdiction stripping proposals were ruoutinely introduced in the 19th century. they go about the responsibilities responsibly is an 800 pound gorilla in politics. they played the judicial role in the judicial way. but there is a difference between sort of -- i did a talk with justice byer. he took pride in that. he want your independent judgment. it should be in light of what the rest of the country thinks. it's not they're all idiots either. the way democratic politics

works is these things become the point of engagement. where these issues are actually then fleshed out. when i think about the southern manifesto, it started a debate. it doesn't end one. it provided the grounds on which you had public engagement that produces along with a lot of political activity the civil rights act of 1964. that was such a better solution. you don't get that when the court is effectively deemed to be a shutter off of politics. it never completely shuts it off. we still have a lot of debate. the way people respond to the debate isn't a product of whether they agree or disagree. it's a product to the extents to which they feel entitled. i disagree with my boss different than my subordinates. whether the court sees itself as our boss or subordinate will affect the way it operates. if you look, i think you get a better balance with these

devices being available. not that you can't imagine the parade of horribles. we have reasonable responses, the marshall court didn't stop being the marshall court but it pulled back. and probably to the benefit of the country. it pulled back in the face of strong -- the introduction of all these kinds of bills. it's the availability of the threat. it's not the ideal way to do it. i think the europeans have better ways. this is what our constitution leaves us. when it was written, none of them remotely imagines the court playing this kind of role. they put the strong judicial independence in there thinking of a different problem, the english common law history problem of i don't care if he's guilty or innocence i want him convicted. they were stuck having to cobble something together. there is all sorts orphdevices you can use. these are the ones you have. i would say i would rather have them then nothing. when you have nothing what you get is this court.

>> people have questions. >> i want to pick up before we get to that on what larry said. i think that part of your -- what your comments reflect is that things are actually kind of working now. we do have the push backs from the other branchs. we have -- when congress doesn't like what the supreme court has done, for example ledbetter decision it helps the law. we have the president able to say after citizens united to the american people in the state of the union address, this decision has effects and it's a problem. he's speaking to the american people in a way he is empowered and entitled to do so. you know i think when i think about this question of whether the court is failure or not. part of it is self-interested. i don't mind saying it's not. i have spent my career litigating in front of the supreme court. if i say it's a failure i might as well not get out of the bed in the morning.

al i think in many important ways it isn't a failure. part of that is because it is the independent judiciary that our founders put in place instead of some of the european orening orening or english model. the even when gore comes out the next day and says i disagree with the decision but i'm going to stand by it. in some ways that is an institutional success i would say. when you're looking at an independent judiciary. it only continues to be that way if there is some idea that the court acts according to the law and not just politics. and no one has said this more often than chief justice roberts who says he doesn't want the court to be considered to be just another political entity. i think we have a lot of instances, even in the roberts court era that hasn't seemed to be true. citizens united, the court reaching out to something they didn't have to decide.

king v burrwell it will be a test. when you have scholars across the spectrum saying there is no legitimate method of interpretation that leads you to rule for the challengers. that is a test of whether the court is going to follow law or politics. i think that's something to watch to see whether or not the court is a failure or not. right now i would be a voice of optimism by saying it isn't. institutionally it's not a failure and it steps in as it did decades ago when to vindicate the constitution and individual rights. >> our conversation has provoked a few good questions. maybe i'll turn to those in our last 15 minutes or so. one question is, are there lessons or reforms from state supreme courts that could inform

the federal supreme court. >> a number of states have a merit selections system for their supreme court justices. i think any president could voluntarily create. what a president could do is create a commission bipartisan, and say he wants names, two or three at least supported by two thirds of the group and promises to pick from those names or ask for additional names. as an example, alaska has used this system to tremendous success. so sarah palninpicked a pick who barack obama put on the ninth circuit. jimmy carter created merit selection for his federal district court and federal court of appeals appointments. i can make the arguments for federal court of appeals appointments, they were among the best, most diverse in the american history. i think me might have done that for the supreme court had he had a supreme court vacancy. this wouldn't take a amendment. any president could create a

merit selection commission. >> any response to that or any other ideas? >> i have one question, which is, would merit selection system lead to the potential nomination oft of the sorts of people larry was talking about earlier folks who have played an important role in public life or would it lead to the more traditional way of judges on the courts of appeals being in effect a farm team for the supreme court. like larry i am drawn to the old model. it's hard to imagine, say that earl warren would have been on anyone's merit selection team, right? he was not a distinguished law student. people made fun at him. even during his own time. so i guess that's one concern about the merit selection system. >> it can include life experiences and political experiences. it doesn't have to be so

narrowly defined. i think a merit selection system -- we would have produced john roberts and ruth ginsberg. i don't think it would have produced others on the court. i think it could produce another felix frankfort. i think it depends on how we define merit. maybe it would cause us to have a discussion of what we mean by merit. that would be a good thing. >> there is another state course focus question. we talked a lot about the failings of the appointment lifetime tenure system. the majority of state courts have elected judges. and many have term limits. those stage judges are subject to attack ads, especially with regard to being soft on crime. what is the answer to judicial impartiality? i take it this asks us to reflect on the dangers of the elective system.

that's not quite our topic but we certainly have seen recently in the state courts wisconsin is one example of the mess that was created up there in the recent judicial election. the unseating of chief justice abramson. a messy situation. does anybody have thoughts about electing judges, has any merit to it as an idea? >> i think i agree with justice o'connor on this. it's a pretty bad idea to elect judges. we've seen in the states, some of the problems which the person who submitted the question points out and you know i think that it also to me raises in my mind why some folk whose criticize the court want to make it more like the democratic elected branches. you know i can't imagine right now -- i know we want to take the long view. i can't imagine anyone saying even with all the problems with

the roberts court saying it should be more like this congress. like that's a good thing? it doesn't seem like it to me. i think that's something to keep in mind when we're thinking about what are the better alternatives. >> to be clear, i certainly wouldn't argue that judicial elections have been a good thing. it is worth remembering where they came from historically, which is -- in the early years, again it was the same fight over who controls the law, the jack sewnians made a move for codification, they had trouble with that so they move today judicial elections as a way to make sure the people who were controlling the common law would be subject to control by the democratic process. judicial review picks off once you have judicial elections -- takes off in the state courts. established itself as regularize regularized there is a certain irony there in terms of where this idea comes from. the way elections are played out it's not a good thing. the notion of accountability. there are all forms all different ways to produce

accountability and the balance of independence and accountability. the amazing thing about the founders when they constructed the constitution they thought this true carefully. and they have a different balance. the long terms, the election by state legislatures. we have lots of options. no one is arguing what we want the supreme court to do is be elected the way congress is. that's not to say that we have to go all the way to the other extreme. the other point i would say -- i get this push back a lot also. congress, are you serious? nothing could be worse than congress. i do agree with that. we're spending $50 million at my foundation to try to see if we can improve that. the point is if that's the problem the solution is to fix that. not to give up on it and turn your lawmaking over. i don't get that part of it never did. >> fdr tried to add more justices to the supreme court. would adding more justices solve problems or create more

problems? you know, we're used to having nine justices. we've had nine justices throughout the 20th century. there's nothing in the constitution that tells us how many there should be. do we have the right size on the court? does it matter? >> i don't think it matters. you can manipulate -- again the court packing thing when lincoln gets elected they increase the size of the court because they want him to have more say. johnson gets elected they shrink the court. when grant is elected they increase the court again. those kinds of manipulations. fdr's court packing was successful. you have to look at it not in isolation. it was a pressure that the court responded to that you wouldn't have today because people were saying the kinds of things that were being said in the 1930's would be shouted down. there is some push back. but it is so tepid.

president obama makes a one little offhand comments about citizens united and he gets slammed by everybody. how dare you criticize the supreme court. that is a long way. go back and read the congressional debates. the congressional debates around the new deal. that a robust debate that doesn't exclude the possibility of judicial review. >> this question maybe related. what would the court look like if senate confirmation was no longer required? it's required by the constitution, setting that aside. what about getting rid of senate confirmation -- >> it would look more like congress. >> any thoughts on that? okay. >> if there was no senate confirmation required? i think we've got to remember historically that in the 19th

century, 20% of presidential nominations to the supreme court were rejected by the senate. always on ideological grounds. in the 20th century and this century confirmation battles occur when the senators of the different political party than the president. virtually never will the senate reject a nomination of the president when the senate is the same political party as the president. it's when the senate and president are different. then you do have a very important check. that i think that it was completely appropriate and i'm thankful the senate rejected bourke. think about how different the law would have been. he was rejected because of his ideology. we can go back to others who were rejected because of their ideology. one of the checks that's built into the system is senate confirmation. and we just have realized when it happens is when the president and senate are different political parties. >> i think maybe we can't get

rid of senate confirmation because of the constitution. an interesting subset of that argument is what about expanding the nuclear option for supreme court nominations. the idea that right now you essentially need 60 votes to get someone through for the supreme court. but there is a strong argument that the constitution sets forth majority rule and maybe we shouldn't have that. maybe we should -- in the same way that right now -- because of the deployment of the nuclear option for a court of appeals judges maybe you should do that for the supreme court. that is something that's a possibility under the constitution. it's an interesting thing to think about. >> if the supreme court retained the kind of power and authority it had now senate confirmation wouldn't change -- getting rid of senate confirmation wouldn't change all that much. it's the political controversy happens outside. it's not like presidents would make the appointments and nobody would care or do anything about it. you have largely the same debate unless something changed about

the power of the court. >> on that line, harriet meyers was briefly nominated. the legal establishment rose up as one and said not over our dead bodies. that is a real phenomenon. it's possible the senate confirmation process itself intimidates some people who may be attracting judges. governor mario cuomo was in consideration during the clinton administration. i don't know what made him back up. but he did play hamlet there for a long time. it's possible that sort of scrutiny one is subjected to through that process, you know does make some people say thanks but no thanks. >> is it possible that the courts of law is not enough power, especially in enforcing its decisions, case in point. what could the court do to keep alabama state officials for refusing to comply to the

marriage equality decision. the court can't carry out its orders as we're reminded in history. but should it have enforcement power? >> i think in some ways i think the enforcement power is the belief in its legitimacy. if that became further undermined i think it would be harder for the court rulings to be accepted and followed. you know i -- which is not to say we shouldn't criticize the court. that is the way -- when marberry was decided it wasn't a given the court's ruling would be followed. we havets tha that today. it goes into my reasons that the court as an institution is not a failure. >> it doesn't need anymore enforcement power because it has the lower courts to enforce these things. >> and essentially even all the departmental debates that have taken place, there always has

been a general assumption that we'll enforce the judgment in a particular case. lincoln ignored dred scott. but i would enforce the judgment in the particular case but i don't have to follow it as a rule. it becomes who is going to stick to the guns the longest. you get the public deliberation the constitution is designed to create so we make the decision. >> here's a question that sort of inside the court but maybe we're throwing out -- should the cert pool be reformed so everybody here knows what the cert pool is. eight of the justices pool their clerks to do the initial vetting of the 8,000 or so cert petitions that come in every year and make a recommendation as to which are worth taking further or which will be subject to the default rule, which is if nobody is interested they're just denied. so the cert pool came about in the 1970's.

and there's been subject to various kinds of criticism. ever since. does anybody think that presents a problem that needs to be reformed? >> i think it's partially responsible for the smaller docket. it used to be that every cert petition was read by nine law clerks. any one of whom could recommend cert. law clerks would know the issues their justices were interested about. now it's read by two law clerks one for the pool and one for justice alito. from the lawyer's perspective it would be better to be read by nine rather than two people. >> add one thing to that. which is, i assume this is still the case it was certainly true years ago. that there's a strong norm in favor of denying cert among supreme court clerks. the reason is if you goof off and a case is granted and the court, the justices decide that

it was an improvident grant you're not a popular person. nobody ever gets criticized for mistakenly recommending a denial of cert. ando that's feeds into the problem. and i think it is criticizing for mistakenly recognizing a denial of cert. that feeds into the problem. i think it is a serious problem. obviously disappear when the clerks disappear. >> they are not clear. i said a bunch of justices. the thing i can say with a fair amount of confidence, they would read the question presented, decide whether to vote for or against cert without underlying petition. >> maybe this will be our last question. you mentioned some dissatisfaction with number of types of cases taken by the court. do you think this is an area where changes could be made such as quota for cases, term or have a third partientity have say

granting cert. that's the variation. not the quota third party cert court has been a recommendation over the years. it kind of came up in early 1980s when it seemed or thought the court was drowning in work." it's maybe less salient today. >> it is fascinating chief justice roberts before he joined the court was very interested in increasing the size of the docket. since he's become chief justice that has not happened. we should be hearing him talk a little bit more about why that is exactly. it's hard enough. i suspect if there were a quota the effect, it it weren't much higher they would take cases they currently handle in a summary fashion and have argument an briefing on those even though i'm sure the justices would be incredibly

irritated about having to have, you know an argument when they are ready to decide it on the merits. so i don't think quota is going to oncome and i don't think i'm attracted to it to make the number of cases. that seems odd. >> this observation kind of effective quota that consists of the court's calendar. thattes to say you see the calendar for days of argument, days on the bench. the one thing that they really hate and fear is a day listed on the calendar when they have no cases. that's happened. they are very unhappy when that happens. i think we see a phenomenon for january, which is the last time to grant cases in the regular order that would be heard in april, the last argument of the term. it's a lot easier to get a case granted in jonathan it might be in october november whatever.

so that's one impetus. i made a suggestion to the court if they would only cancel april arguments and carry over the march -- cases granted that ordinarily would be in april in october, they would get a much better cases and wouldn't have this problem of having to expedite the briefing schedule in october in order to shoehorn cases onto the january calendar. i was told, we hear you, but we wouldn't do that because the public would think we weren't working hard enough. so should there be a third outside party that would inform them of the kinds of cases they

take and aren't taking. >> i do think something interesting from the lower courts in this regard. in the cert petition there's a pay docket where you have cases certificate petition lawyers supreme court law firms and than you have ifp, it's very rare for a case from the nonpaid docket to be granted. partly assume there's merit to this. if they are there on the case then some eager supreme court lawyer will have taken the case for the lawyer cert petition and gotten the case up that way. i do think the lower courts have panels that will look at some of these cases, especially if they are not going to be heard for argument might recommend a decision through the staff council for the court. that's something to think about with the court. when you have largely prisoner appeals because they get

overlooked in a way the court isn't used to seeing. that might be one instance having this administrative body we might have in the lower courts useful for supreme court. >> make a recommendation. >> right. >> not final judgment. >> exactly. >> one thing that concerns me pout that, and it's a problem, i think there's an increasing number of instances of supreme court securing opinions without briefing an oral argument based just on the petition for serviary versus petition on merits. the petition is about convincinging the court this is worth hearing. there's a split among circuits national importance. the position about the cert convincing the court this isn't the right vehicle. when the court is deciding

without briefing oral argument it's really about what it needs for judicial decisions. there's been a lot more in a few years and i worry this would increase it further. >> that's a very good point. i think doing back to larry's initial point about lack of transparency, if there's one instance about lack of transparency, it's to secure an opinion, binding judgment off the cert list which is problematic for exactly the reasons you said. >> not procuring the problem, the summary judgment is your point, not that it was procured. >> without having notified the parties the case was up for decision on the merit. we do have to stop and i asked my people that there's a reception down the street on the corner of 16th and i street just

a block south of here the direction of the white house at the afl-cio headquarters beginning at 6:30. please have your convention name tag with you for admission. with that i thank everybody for your attention and i thank the panelist. [ applause ] this weekend c-span city tour partnered with comcast to learn about history and literary life of key west, florida. ernest hemingway wrote several novels at his home in key west. >> they found this house for sale, about it for $8,000 in 1931. pauline actually converted this

hay lot of into his first writing studio. he fell in love with fishing, clarity of writing, how fast, knocked out first rough draft of "farewell to arms" in two weeks in key west. he once had a line, 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 attainment. 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 thought he was constantly under everyone's eye. so coming to key west, he could come with his closest staff, let down his hair. sometimes some of the staff would let their beards grow for a couple of days. they certainly at times used off

colored stories and they certainly could have a blast of bourbon and visit back and forth without any strutly 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 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-span 2's book tv. sunday afternoon at 2:00 on american history tv on c-span3. >> when congress is in session c-span3 brings you more of the best access to congress with live coverage of hearings news conferences and key public

affairs events. every weekend it's american history tv traveling to historic sites discussions with authors and historians and eyewitness accounts of events that define the nation. c-span3 c-span3, coverage of congress and american history tv. >> here is what's ahead on c-span3. update on projects under way at the smithsonian institution. then a look at how a new rule called dynamic scoring could affect what legislation gets passed on capitol hill later several interviews with financial leaders including world bank president jim kim shawn donovan and president and ceo of the mayo clinic all from the "wall street journal" cfo network conference. defense secretary ashton carter told capitol hill lawmakers u.s. training of iraqi forces is moving too slowly.

iraqi forces are hampered by, quote, disunity deserters and so-called ghost soldiers. that in a story from the washington times as we watch some of what secretary carter said. execution, however, is a two-way street. our train efforts in iraq have thus far been slowed by a lack of trainees. we simply haven't received enough recruits. of the 24,000 iraqi security forces, we originally envisioned training at our four sites by this fall we've only received enough recruits to be able to train about 7,000 in addition to 2,000 counter-terrorism personnel. as i've told iraqi leaders, while the united states is open to supporting iraqi more than we are we must see a greater commitment from all parts of the iraqi government. there are positive sides. i met with prime minister abadi

iraqi kurdistan president and just last week with speaker of iraq's parliament. they all fully under the need to empower more localized multi-sectarian iraqi security forces and address persistent organization and leadership failures. because of sovereign multi-sectarian iraq is more likely to ensure a lasting defeat of isil, the united states must continue working with and through the iraqi government in all our actions including our support for kurdish and sunni tribal forces. our efforts need to reinforce in includesivity and multi-sectarianism not fuel the sectarianism which would make lasting defeat of isil harder not easier. the situation in syria is even more complex because of the lack of a legitimate partner and many competing forces there.

regardless, we will continue striking isil and syria with a long reach of our airstrikes and operators. we will continue working with syria's neighbors to impede the flow of foreign fighters into and out of syria and iraq. our training mission in syria has been challenging but the requirement for capable and motivated counter-isil ground force there also means we must persist in our efforts. in conclusion, i believe that success in this campaign can and must be assured. it will take time and require consistent effort on everyone's part. the entire u.s. government our entire international coalition and, most importantly iraqi and syrian people. together, and with your support, including your support for america's troops and their family for which i and they are ever grateful, we will achieve isil's lasting defeat.

>> this picture of u.s. army soldiers training iraqi troops is in time magazine. joint chief charms dempsey testified before the armed services committee today. you can see all of the three-hour hearing on c-span tonight or at any time on c-span.org." now we hear about some of the smithsonian institution existing projects from secretary horvath. he's serving in that position for another couple of weeks. july 1st president skorton becomes the museum's 13th secretary. the smithsonian is located here along the national mall in washington, d.c. where you can get a glimpse of the national museum of african-american history and culture under construction now and expected to open in the fall of 2016. from the house administration committee, this is about 15 minutes. >> i now call to order the

committee on house administration for today's hearing on smithsonian institution. we appreciate acting secretary horvath coming and all his staff that's coming in. we appreciate them bringing him. before i make my opening statement, let me just say, i think we've all had an opportunity to look at some of the coolest things here. as you see, it's a bit unusual for committee hearing to have smithsonian artifacts here but everyone will get a chance after the hearing to take a look at them all. they are really unbelievable. i mean you've got meteorites here, sort of makes you think of jurassic park. the first heart, artificial heart. a picture smithsonian got off ebay of harriet toddman they had

to do nothing to it was in such great condition. somebody took great pride keeping that picture. anyway, everyone will have a chance to take a look at these artifacts. we thought it would be a way to sort of set the stage if you will, for what goes on at this unbelievable national treasure at the smithsonian. in fact, i told some of your staff when i leave here i'm going to try to get a job at the smithsonian it's such a cool thing. i'm kidding. but wow, really amazing. discussion priorities of the smithsonian as well as opportunities and challenges on the horizon. congress established the smithsonian institution in 146 to carry out the will of english scientist james smithson. smithson sought, quote, to found at washington under the name of the smithsonian institution an establishment for the increase and diffusion of knowledge unquote. since that time the smithsonian has developed into the largest

museum and research complex in the world with 19 museums nine research centers and, of course, the national zoo. the smithsonian collections include 138 million items which form the basis for the exhibits, educational programs and research activities. last year more than 28 million people visited smithsonian museums and national zoo. 99 million viewed their website. more than 6,000 volunteers joined 6300 employees for the work of the institution. the smithsonian is much more than our nation's attic. it plays an important role in collecting observing our nation's history as well as advancing critical scientific discovery and research. while the institution encompasses the renowned museums on the national mall which all of our constituents appreciate visiting at zero cost, it also includes research facilities in

panama, astro physical observatory, across the united states and strong international presence across the globe. size and scope of the smithsonian enormous opportunities to achieve mission of continually increasing the reach of knowledge. this committee commends the smithsonian for unrelenting effort in identifying future opportunities. one mainly opportunity for smithsonian is leverage collection for education and inspire lifelong learning. education is fundamental to the smithsonian's mission and certainly one of the most important services the institution -- the institution can provide. the committee is interested to hear how the smithsonian is revitalizing education, increased digital access for 3d printing and plans for expanding those activities. also significant challenges managing complexentity such as smithsonian. one ongoing is serve as stewards

of their priceless cultural scientific value, which are not in size, scope and diversity, smallest organisms, insect specimens to various artwork mediums and live animal exhibits. fundamental to achieving institutions mission now and in the future. this committee held a hearing last congress and heard from inspector general who identified collection stewardship as one of the most pressing issues for the smithsonian. management indicated work was ongoing to improve current collections management and to plan for the future. so we look forward to hearing about that progress. in addition to collection stewardship and education we would like to receive an update on how the institution preparing for national museum of african-american history and culture. that opening which is targeted for completion next year i believe, in about recent announcement as well regarding smithsonian exhibition space possibly being part of a cultural complex in london. the smithsonian institution is

cherished by all americans. each of us feels a personal responsibility to ensure success of this valued institution in its continued operation for future generations. the smithsonian is truly one of the great treasures of our nation and the world and we look forward to the institutions continued service. so again, we thank our witness for his attendance. i'll formally intro him in just a moment. at this time i'd like to recognize, our ranking member mr. brady was not able to attend and recognize mr. vargas our gentleman from california and recognize him today for his opening statement. >> thank you very much. again, i want to thank you. i think my microphone is having feedback issues here. there you go. i apologize for that. thank you, madam chair. i appreciate the opportunity for being here and thank you for holding this oversight hearing and giving smithsonian a chance to show off some of its treasures early this morning as

you were noting. again, thank you very much for that. this is a period of rising expectations for smithsonian institution. a new secretary will arrive in a few weeks and smithsonian african-american museum will open in less than a year from now. by the way it is magnificent every time my driver walked by there i get very excited. it really is looking magnificent. also historic national campaign record amount of funds for institution, museum of american latino within the smithsonian has been recommended by national commission that reviewed by our committee this year. a proposed national women's history museum is about to be studied by another commission and visitors advance levels at smithsonian museum are about on the rise. the value of the smithsonian endowment is record high and cost of admission to american people is still zero. i commend acting secretary. thank you very much for your ability to step in quickly and ensure to continue the the

continuity between the period between secretary's departure and doctor skorton's transition out of cornell university. this is a busy season for our constituents who visit smithsonian during warmer months. we off hear from them how much they enjoy the experience. i have to say i was able to go recently to the national portrait gallery and was very excited to see the painting. going in for needed work, but exciting to see two magnificent paintings there. though i believe anti-nem, it's such a joy to have you here. we're very, very proud of your institution and the work you've done. thank you very much. yield back.

>> thank you do any other members wish to make an opening comment or statement. okay. at this point i'd like to introduce our witness horvath. following retirement this year of secretary. he will serve in the position this month. we had an opportunity to have you in our office last month you said it was. you said it was a fast-paced last several months and eye-opening and interesting. but as was mentioned, david skorton will take over as 13th. as acting secretary, mr. horvath oversees thousands of projects under way within the smithsonian institution. before becoming acting secretary he was under-secretary for finance and administration and chief financial officer of the smithsonian where he managed administrative offices including facilities, maintenance, human resources and financial operations.

we are happy to say that's a position he'll be returning to as well following his tenure as acting secretary. before coming to the smithsonian in 2011, his career spanned more than 30 years administration at five different universities. we certainly thank acting secretary for being with us and at this time we recognize you for your statement, sir. >> thank you very much. chairman miller and members of the committee, thank you for the opportunity to testify this morning. in 1846, congress established the smithsonian as a public/private partnership dedicated to increase and diffusion of knowledge. 60% of our annual funding comes from federal appropriations 40% from philanthropy and other sources. the federal commitment provides the critical foundation for all that we do and is helpful in attracting private support. we are grateful that the continued confidence of the administration, the congress and the american people. i assure you the confidence is

more than justified. the state of the smithsonian is skrong. we are making great progress and will welcome our 13th secretary on july 1st dr. david skorton currently president of cornell who will push for even more progress. since january 1st i have been privileged to serve as acting secretary. upon dr. skorton's arrival, i will return to my previous post as under-secretary for finance and administration and chief financial officer. i will do so firmly convinced that the smithsonian is more efficient and entrepreneurial than ever. it is also more effective operating close-up experiences of what it means to be an american. for example, on may 8th i stood at american history museum to witness world world war ii flyover celebrating victory. i'm sure many of you saw the historic planes flying over the mall. our national air and space museum director general jack

daily participated. the former assistant com dant was in the mustang that executed missing man maneuver. the next day some of the participating planes were on display at our air and space museums stephen f. center for all to see. the center also houses among many treasures space shuttle "discovery" which flew over national mall three years ago. online we offer a three-dimensional scan of the right flyer that any teacher student or lifetime learner can download free of charge. as i looked west that darks i saw our national museum of african-american history and culture rising out of the ground. museum curators have collected artifacts including spirit of tuskegee airplane. the museum is targeted to open in fall of 2016. we continue to implement 2010

strategic man that focuses on four grand challenges. we have an agenda first phase of west wing american history museum reopens on july 1st. the smithsonian american art museum's renwick gallery reopens november 13th after a significant revitalization. we can offer so much to so many people because smithsonian i the largest museum and research complex in the world. with passionate professionals and volunteers devoted to their work. we have 19 museums and galleries, 20 libraries, 9 research centers, the national zoo and 201 affiliate museums in 45 states, puerto rico and panama. we're open 364 days a year and admission is free. we operate in more than 130 countries. if you can't come to us we're coming to you through digital technology. more than 200 website attract 100 million unique visitors.

606 million followers on facebook and twitter alone. last year our museums and galleries had almost 27 million visits and 3 and a half visited traveling in all 50 states. our collections total 138 million objects including 127 million scientific specimens, 340,000 works of art 2 million library volumes, more than 2,000 live animals and much more. some of those treasures you see on the table in front of you. we protect and present treasures from star spangled banner to hope diamond, portrait of george washington, t-rex, edison's light bulb to nat turner's bible. we take stewardship very seriously as reported to this committee two years ago. since that time we've made many improvements and completed an in-depth study of collection space needs that will inform our

long-term capital plan. our 500 scientists are making important discoveries, especially regarding biodiversity issues through forest geo for global earth observatory network. worldwide partnership monitoring the health of 6 million trees in 24 countries. our new tannenbaum initiative, marine geo seeks to replicate success and assess health of coastal areas and the oceans. we offer american, asian and african art. we deliver education materials to students and teachers in all 50 states. more than 2,000 learning resources all tied to state standards are available online for free. for 30 years our smithsonian science education center has been improving k through 12 education in our nation's schools through its innovative stem program. we do have concerns about the

age of our facilities particularly at our air and space museum, zoo, gallery of art, arts and industries building, the castle and other sites. we will need your continued support in those areas to ensure the vitality of these spaces many of which are historic. our 6400 dedicated employees and 5400 generous volunteers are creative resourceful and dedicated to our mission. that is why for the fifth year in a row smithsonian was ranked as one of the best place toss work in the federal government. all of us are honored to be part of this great american institution. as we face both exciting new opportunities and imposing challenges we will carefully steward important resources provided by the federal government. again, i thank you for this opportunity and i look forward to your questions. >> thank you very much. appreciate that. you mentioned that you had 138 million artifacts. you may or may not know, the

miller family has a bit of history with one of those 1138 million. my husband, who was a fighter pilot in vietnam over 30 years ago delivered f-100 super saver jet on display there. so all the old fighter pilots like to hang around and look at those old jets. that's for sure. remember the glory days there. my first question looking through the strategic plan here. as you mentioned how you want to increase and revitalize education. i have a particular interest in that, as i think i mentioned when you were in my office, southeast michigan where i come from was really so incredibly hard hit during the painful economic transition our kids could hardly get on a bus to take a field trip anywhere. one of the things we tried to do during that time, many of us, in these areas was to make sure here is this fantastic wealth of knowledge and all of these

things happening, whether library of congress, smithsonian, et cetera how we can have resources for the teachers to make that part of the curriculum. kids are so used now to accessing everything electronically. as you mentioned about 3d printers, they really are amazing what they are doing in the schools. could you talk a little about that is part of your revitalizing education portion of your strategic plan and how you can help with education throughout the entire country here really making sure that kids have access to all of these fantastic avenues of knowledge. >> certainly. the smithsonian at its core is an educational institution. we have these wonderful objects. we do tremendous research. but one of our main objectives get this information out as broadly and widely as possible. we've had a long tradition of education being an important aspect of what we do as

mentioned for 30 years through the smithsonian science education center, we've been providing science curriculum free of charge throughout the country tailored to local standards for teachers for students, for school districts. we feel it's important to try and help address issues of stem throughout the country. where a couple come together are education and digitization. one of the kind of buzz phrases we've developed at the smithsonian, if you can't come to the smithsonian, we want to get the smithsonian to you. one of the start gis to do that is through digitization. all of these wonderful objects we have, we're trying to digitize all of them make them available to people across the country, in fact across the world for students k through 12 higher education lifelong learners, provide these objects so they can be studied and

worked with in a classroom and not only in our spaces in washington dchblgt we're working on 3d printing so that not only can you render 3d objects online but also transfer them to printers and have your students create their own models of right flyer or space shuttle. we're, in fact in the middle of digitizing space shuttle at this current time. so all of these activities and many, many more we're focused on again, to try to play important role in forwarding education across the country. >> could you tell us a little bit, i guess the national zoo are biggest visitors. you have more visitors there than any other things but museums, air and space i believe. visitors. >> air and space and natural history are neck and neck. >> i understand the outer envelope, if you will, of the

air and space is in need of some serious structural repairs. maybe you could tell us a bit how you're planning for that and what we need to be aware of here. >> certainly. we have a long-term capital plan. 12 million square feet of space. keeping those buildings vital and functional is an important priority for us. a renovation with building systems of air and space had long been on our plan. we envisioned it being next big priority following completion of natural museums of history and culture. as we begin process of assessing work we need to do and doing our feasibility study we unfortunately uncovered the fact the outer envelope the facade comprised of tennessee pink marble is actually thinner in

size than it should have been. after 40 years of wear and tear it is starting to crack and bow. we've now had three independent assessments by experts and they have all concluded that that stone needs to come down and be replaced. it's just too thin to be repaired. so all of that stone will need to be replaced. that's in addition to other work we contemplated we would need to do anyway, upgrading air handling systems, completing repairs on the roof and the like. the building opened in july of 1976. it was built with a notion we would receive about 3 million visitors a year. we now receive about six or seven, so it's received a lot more wear and tear than was envisioned. obviously our knowledge about what it takes to maintain pleasures and delicate objects like this advanced as well.

unfortunately we're looking at a price tag of probably $500 million to fully renovate that building. it's a process we're currently in the process of design on. we would hope to begin trucks on the renovation sometime in 2017. our plan is to try during the course of that renovation to keep portions of the building open to the public. again, since it was one of the most heavily visited museums in the world and one of our most heavily visited we don't want to take all of those objects off line if we can possibly avoid that. >> wow that is a huge price tag. >> okay. appreciate that. chair recognizes mr. vargas for questions. >> thank you very much madam chair. i can't help but get excited when you talked about your family's involvement with the smithsonian.

i'd be remiss it say in san diego we have affiliated museums. we also have san diego air and -- aerospace museum affiliated with smithsonian. it's the same thing there. you get a lot of the pilots not only hang around but also teach the kids how to work on planes an repair them, create them. it's really exciting. i've had a chance to go there a few times. they do a great deal. i would be remiss if i didn't thank smithsonian. i think there's four or five institutions in balboa park that are affiliated with smithsonian. talking about if citizens can't come to smithsonian smithsonian will come to them. i know you've done that with affiliated museums and in san diego and i'm sure throughout the country. i do want to ask a couple of questions. does smith have position on museum with american latino museum? if congress were to authorize

it, could smithsonian absorb the work involved with the project? >> should congress authorize and approve funding for smith american latino museum we would be honored to add such a museum and we would do everything in our power to do an exceptional job delivering museum to the american people. >> thank you. second question. what effect has sequestration had on smithsonian's operations over the last few years, if any? >> the budget area uncertainty around the federal budget has certainly forced us to do a lot of scenario planning and rethinking about priorities and potential programs. we were able to weather -- we

were able to weather sequestration that was implemented a couple years ago because we had done a lot of preparation, but we knew if there were long-term and additional reductions made we would have to fundamentally rethink some of the basic operating premises of the institution. as you might imagine given some of the facilities challenges like the one just mentioned previously, we are obviously keenly aware of how important continued strong federal funding will be for us to not only deal with some of those more acute problems but allow us to continue to push forward in terms of digitization care initiatives, expansion of care education programs and the like. so at present we continue to develop a number of different strategies depending on the levels of funding.

we've also spent quite a bit of time and effort to ensure that our ability to raise nonfederal funds, private funds through philanthropy, sponsored project support and other means are as advanced and effective as possible. >> thank you. by the way a little pet peeve of mine, sequestration. i wasn't hear when they voted on it comes from the latin term, to set aside. that's why you sequester a jury. doesn't mean across the board cuts. a pet peeve of mine. i don't know why they use that term. anyway it's a term they chose. we're all very excited all of us about the opening of the african-american museum next year. are there any special events around it the public should be aware of? >> we're in the midst of planning for grand opening of the museum next fall and so we're at the early stages.

we intend to begin preliminary events leading up to that. the museum itself is not waiting for the building to be finished. we just opened a new exhibit in american history to begin showing some of the collection that's been amassed over the course of the last several years called through the african-american lens. i would encourage everyone who has an opportunity to go and see it. so in expectation of the museum opening and not just generating excitement from the seemingly day to day changes that take place in construction, we're trying to do programming and the like to get people excited and ready. >> my time is up. thank you, madam chair, appreciate it. >> thank you. mr.

mr. harper from mississippi. >> i hope everyone got to go to the national portrait gallery. an incredible location and thanks to all involved in that. there's always a concern on the upkeep of buildings and making sure we don't defer maintenance. that happens sometimes because somebody is not there. i know we have a new museum that's been talked about that will open next year. a very exciting time. there are others being discussed. there's also a concern as we go forward and build new museums we have the ability to maintain them and do the upkeep and maintenance. so this is going to be a major lift. as far as families, air and space museum is one that everyone likes to go to. it's very special. there's from my district

meridian, mississippi, the airplane called ole miss for which they set the record for longest time in the air 27 days back in 1935. and their partner mechanic inventor friend invented the shutoff valve so you could safely transfer the fuel, which even today with just some minor modifications is still what's used. have you single engine plane with catwalk built around it because they had to climb out and service the engine during flight. during construction we're confident that will be fully displayed. anyway, that's another deal there. it's true. every exhibit has a great story. and so we're very thankful for that and those opportunities there. how do you forces going forward? i know chairman miller discussed this.

you're planning on keeping this open at least in part during those construction years. how many years will that air and space renovation take place? >> we are still in the midst of detailed design and planning. right now our best estimate is it will take about 4 1/2 years of renovation time. we will try to do it in phases through the building. it's a little complicated because all of the building systems are integrated, but that's part of the challenge of what we're trying to study at this point. again it is very important to try to keep portions of that building open as much as possible so our visitors can benefit from the tremendous artifacts. >> other buildings are aging as well and will have those needs as well. is there a plan for which we'll make sure we don't wind up with

a big hit where maybe you see doing these along in stages where we don't wind up with $500 million one time or over a few years major renovation? >> yes. there are a couple of examples where we had been doing that over the last several years. the natural history museum everyone knows the dinosaur hall is currently closed. that's partially driven by the desire and need to renovate that portion of the building as well as do some needed maintenance on the artifacts. we've taken the same approach at american history. so back in 2008, we reopened the center core of the building, now "the star-spangled banner" hall. we're working on the west side of the building and are very excited about reopening the first floor of that renovated space in july. we've taken the same approach at the national zoo.

so to the extent in some of the larger more complex buildings where taking on the entire building would be astronomical in terms of cost we've tried to parse them out. in some cases, like the air and space museum, because of the way the building was built, it's not practical to close portions of it and work on it at various points in time. one of our biggest challenges is making sure that we kin to address the most pressing needs and try to use the combination of both maintenance as well as facilities capital funding to be as thoughtful as possible and keep our buildings. >> my time is almost over. let me ask you this 138 million items, probably more not everything we probably want to keep. i'm a bit of a pack rat. i don't want to throw anything away. when you're deciding new items

to go into the collection, if you could just quickly, is there a bake criteria you have or how that's decided on? >> certainly. we look at the importance of that object to the collection and the particular discipline that it supports. we ensure we can safely and effectively keep it. we make sure we have the expertise to study and tell its stories. >> not everything makes the cut. >> not everything makes the cut. >> thank you very much. yield back. >> mr. davis. >> thank you chairman miller. i wish you well on your next endeavor going to work for the smithsonian, as you mentioned. please, sir, check her references. don't cut my mike. that's just vargas. first off i want to say thank you, mr. acting secretary.

my twin boys who are 14, going into the ninth grade were part of a large high school group out last week and enjoyed some of your facilities. some of the feedback was that obviously besides hanging out with me going to the smithsonian was actually one of their favorite activities. it's something we see many folks and families go through every day here. what you do on a regular basis i think this committee hopefully today you understand what you do and what the many men and women at your facilities do on a regular basis to show what our nation is all about. thank you for that. education was take key point of your opening testimony. notice you mentioned some of the stem programs smithsonian works with school districts throughout this nation, especially k through 12 education. can you actually go into further what you do with the smithsonian to ensure our students who may not be able to make it out here

to washington, d.c. or to other facility in the nation, how do they have access to your facilities and how do your stem programs work and how do teachers who may not be involved with them know how to contact you to get involved? >> we have tremendous educational resources at the smithsonian. some attach to the specific museums, research centers. some are coordinated in more central ways. one of our big initiatives across the board and, of course, in education is to take what we have and get it to folks regardless of where they are geographically throughout the country. so smithsonian science education center for 30 years has been putting together curriculum that is tied to state standards that teachers and school districts can implement and use to teach science to kids have k through

12. it's hands on learning and supplemented by a number of lesson plans and activities that can be downloaded. all of that material is provided for free. we have a large smithsonian traveling exhibition service which takes smithsonian content throughout the country. and so at many museums, large and small across the country you can benefit from the same kind of content you see in washington, d.c. at your local museum throughout the country. more and more we're trying to put a lot of our material online so that even if you're not using some of the more formal materials we provide, a teacher can download information, can use a variety of support material that we provide to integrate into their classroom. we view education as central to the mission and as a way of

really enlivening these objects and telling our story and using them in a way that helps inspire kids of tomorrow. >> i appreciate what you do to make that happen. again, for many students who don't get a chance to come out here and experience what we see and sometimes take for granted on a daily basis, what can we do as an institution to help encourage more activity and more usage of your programs? >> well, i think you're doing it. the more that we can engage people in our facilities in our programs to understand richness and depth of what we do together we can learn places where perhaps we aren't filling a gap where we could fill a gap. we recognize we can't do everything but we believe that we can have a significant impact on improving delivery of stem

education education, telling history, teaching history, particularly history of american experience. >> one last question, do you have an idea estimated percentage of how many school districts you're putting stem program into nationwide? >> i can give you specific numbers as part of the final testimony. i don't have those numbers offhand. but we make available to anyone that wants them and actively engage with folks across the country. >> thank you very much for your time madam chairman. i'm going to yield back so our star pitcher from the congressional baseball game can have time to ask questions. >> thank you very much. mr. walker our star pitcher. >> thank you, mr. chairman and mr. catcher. i'm fascinated by smithsonian over the years. something that predates even our civil war by nearly 15 years. i believe you've been there

about five years. is that correct? >> yes. >> four years? one of the things you talked about, i've got a couple of questions i want to get to something you brought up i want more information on. we talked about african-american museum opening. what is the open date? do we have that projected? >> it's fall of 2016. we don't have a specific date yet identified. >> my question specifically regarding that, exhibits in history there will we remove those some george washington carver, talking all the different inventions and what an amazing man he was. do we remove that from smithsonian or duplicate it? can you talk about that process? i don't want one missing, or one or the other, do you understand where i'm coming from? >> we on pretty frequent basis move collections around our various museums.

the american art museum actually tells the story of america through art as opposed to specific historic artifacts. so we'll sometimes move paintings from there to the american history museum. so there will be times when certain objects will move back and forth depending on the nature of the exhibition that's on or particular story we're trying to tell. so things will move around on a routine basis. >> i appreciate your answer. my concern is that we make sure all getting a great history of people with ethnic backgrounds, hitting one and not hitting another one. a lot of technological advances in thees last few years. can you discuss strategy connecting smithsonian, continue to make it attractive to the younger generation. we see so many times in corporate world or background ministry world where we don't

make adaptations to connect with the next generation. can you talk about is there a marketing strategy? how do we move forward with that. >> it's a big thrust for us, ensuring that we have an institution that appeals to people who look like me and people a lot younger like my son. one example of what we've been able to do is the recently renovated and reopened cooper hewitt museum in north. we closed that museum three years, fully renovated it and reopened it in december to great fanfare integrating tremendous amounts of technology into the visitor experience. so there's a new object called the pen you can get when you walk in the door. as you go along through various exhibits you touch a part of the exhibit and it down loads that object into an account for you which you can then, when you're finished, e-mail to yourself and continue to curate your

collection because you only had a limited amount of time at the museum. we're looking at the african-american history and culture museum as well, to integrate tons and tons of interactive and digital experiences into the more traditional experience of physical objects. we're taking it seriously. >> do you find a difficult balance. you don't want to dumb done historical aspects of it. that's the process as far as balance. that is a fair assessment? >> i think what we're looking for are opportunities to amplify the objects. one of the latest apps we created in natural history skin and bones. it's very cool. you take your phone, look at a particular skeleton. on your phone that skeleton comes to life. can you see what that object

skeleton looked like when it was on the ground. it does some virtual reality movement. so we think the technology can really enhance the experience by giving you a much richer opportunity to dig in and to learn more about it. >> appreciate you guys working hard to be proactive. thank you, mr. chairman. thank you, yield back. >> thank you. >> thank you very much. talk about skeletons let me just ask you a question here about the natural history the dinosaur t. rex exhibit. it's too bad you've had to close the entire dinosaur exhibit down. i guess i understand that. when is it all going to be open again? >> 2019. >> yes. >> you can't open any part of it without all of it opening? >> no. all of the renovation is pretty expensive we noticed to do to what is a fairly large piece of the building. the exhibits themselves,

schedule tans are undergoing fairly sensitive restoration as well. that's pretty painstaking work. what we're trying to do through technology is satisfy the dinosaur itch a lot of people have. that is one of the most popular exhibitions we have. >> it really is. >> one last question and we'll conclude the hearing here. we've had the opportunity to talk about the possibility, going through the process of going to london. tell us a little about that so we have it on the record you're looking into the process. i know your regions have talked about it a bit, whether or not that is something a good idea, appropriate, deferred maintenance on other facilities, should we be doing that and what is the reason for it et cetera. >> certainly. as you might imagine, we are

presented with lots and lots of opportunities on a regular basis to do interesting things. this opportunity in london was of london about a year or so ago. his vision in the redevelopment of the facility that housed the 2012 summer games includes the creation of a cultural and educational quarter that would be populated with a number of cultural and educational institutions and his desire was to have smithsonian be part of that. it's an interesting idea. it certainly is interesting to think about doing something in the land of smithson and early on we considered it and went back to them with a certain set of criteria. first, we would need significant amount of support in order to do this. secondly we would not ask

congress for any additional funding to support this so it would have to be something supported by private funding and we would have to be sure that within the mission of the smithsonian, i think we were able to satisfy ourselves on the mission centricity of it. a lot of that is focused on scientific research. this would be the first opportunity for the smithsonian to be able to tell the story of america abroad so it has a tremendous amount of appeal in that way. we indicated that we would need to have space provided to us. we could not raise funding for that, and the mayor and his team have identified a significant amount of private support and enable that to happen. the final piece of the assessment that we're in the midst of right now is really looking at the financial model

that we would need to implement and whether it would be able to sustain us for a long period of time. so we're still in the investigative phase. we're excited about the prospect. we haven't made a final decision, and as you might imagine, we've been in close contact with dr. thornton to make sure that his input is part of the overall process and that he feels comfortable with the progress or the decisions that we're making. >> thank you very much for that and i want to be kept in the information loop as that process moves forward certainly. i think that is a very interesting idea. without objection i would say all members of our legislative base submit to the chair additional information. the answers might be made part of the record. we appreciate your attendance and appreciate your service. your continuing service at the smithsonian.

we want to thank as mr. davis said, all of the employees of the smithsonian. some of those who are here today. we have a tremendous group of dedicated individuals who really make it all happen there. so we certainly appreciate it. the hearing is adjourned. senator bipolar cassidy of

louisiana has introduced legislation and it will require ethanol. the epa is moving to require $9 billion to 36 billion gallons by 2022. e.p.a. official janet mcskab will testify about the proposal life 9:00 a.m. eastern here on cspan 3. at noon on cpsap 3 several presidential candidates will speak at the faith and freedom coalition conference including marco rubio, rand paul and ted cruz. the house approved a rule change earlier this year that requires the economic effects of legislation to be included in a bill's official cost to the treasury. it's called dynamic scoring. reportedly the rule change promises to make it somewhat easier for republicans to

advance bills of an overhaul of the tax code such an overall effect of the legislation would generate tax revenue and require less offsetting revenue to make up for cuts in income tax rates. congressional budget officer keith hall outlined a new rule at the heritage foundation today. this is 1:20. good afternoon. welcome to the heritage foundation and douglas and sarah allyson auditorium.

we thank you for joining us. i would ask everyone here in house to be so kind to check cell phones one last time to see that they have been turned off as we prepare to begin and, of course, our interview viewers and cspan viewers are reminded that comments can be sent to us at any time along with questions to speaker at heritage.org. we will, of course, post the program on the heritage home page following today's presentation for your future reference. hosting our discussion is david burton who is our senior fellow in economic policy in the institute for economic freedom and opportunity here at her training. he focuses on tax matters, security law, entitlements and regulatory and administrative law issues. before joining us here he was a general counsel of the national small business association. he has been chief financial officer and general counsel of the alliance for retirement prosperity and was a partner at one time in the arg gus group a

public policy and government relations firm. his areas of expertise in finance and tax include posts he has held as vice president for finance and general council of the new england machinery as well as manager of the u.s. chamber of commerce's tax policy center. please join me in welcoming david burton. david? [ applause ] >> good afternoon. our subject today is how the cbo will implement the new dynamic scoring rule recently adopted by congress. we have a genuinely excellent panel to address this subject. now the term dynamic scoring means scoring that takes into account the real world economics of major proposed policy changes when estimating the budgetary effects of those policies. this contrasts with the past practice of using static scoring, that is scoring which assumes that the economy will not change as a result of major

tax or other policy changes even though we all know that they will. what it's really about is moving congressional scoring to what bill beach once called reality-based scoring, making sure that the scores used by policy makers are accurate or at least as accurate as we can make them rather than knowingly using factually incorrect scores scores that sometimes even get the sign wrong. i'll never forget when senator packwood in the 1980s asked the joint committee on taxation to score a 100% tax on incomes over $200,000. the j.c.t. came back with an estimate that said such a tax proposal would raise hundreds of billions of dollars. now in reality of course there are only two tax rates that will raise no revenue, zero tax rate and a 100% tax rate. such a proposal would have really lost hundreds of billions of dollars.

for the first time, both the cbo and jct must conduct dynamic scores. house rule 1308 requires it and so does section 3112 of the concurrent resolution for the fiscal year 2016 budget adopted by both the house and the senate. in relevant part the concurrent resolution reads quote, during the 114th congress any estimate provided by the congressional budget office under section 402 of the budget act or by the joint committee on taxation for major legislation considering the house of representatives or the senate shall to the greatest extent practical incorporate the budgetary effects of changes in economic output, employment capital stock and other macro economic variables resulting from such major legislation. now major legislation in the concurrent budget resolution and in the house bill basically is defined as 1/4 of 1% of gdp

which is roughly $45 billion in gross budgetary effect, or major legislation can be designated by the chairman of either the budget committee or one of the tax rating committees. the heritage foundation has been promoting dynamic scoring for a very long time, particularly with respect to tax policy scoring. this is because dynamic scoring will enable policy makers to better understand the impacts of proposed policies and make achieving pro growth policies less difficult. the earliest reference i can find on our website was a 1996 paper by dan mitchell, although i know that heritage has gone active on this issue long before that. in 2005 heritage published a book on the subject called the secret chambers of public square, what can be done to make tax analysis