national banking act's provision makes the comptroller the excuse of regulator of banks, at least in respect to matters in which we would call the business of banking. that is to say, everyone concedes that banks chartered by the national governments are subject to loss of state laws. .

>> we ask that they provide information about their lending practices in order to ascertain whether or not they were complying with the fair lending laws of new york. we said, stop, we are supervised by the national currency, and the attorney general's office has no authority to exercise supervisory power and to seek this information from us. and this tee'd up the case is the 20 state attorneys general and the advocates, who believe that the washington enforcement's has not been sufficiently attuned to the needs of the citizens, and the

multinational corporations based on the united states and the other that says that regulation is one thing, but 51 different systems is another, for enterprises that are national in scope, and are placed at a competitive disadvantage with the common market. date -- the common market has the same system of regulation. what was interesting is that this is what they thought would be a very close case, and i have long thought that if you watch the court, you can always tell by the opening words offered by the opinion summarizing the results, how this case is going to come out, even though they save the punch line for last. if this is a criminal case and the person writing the opinion

says that, up from the time -- this will be let go. but if the opinion of the author begins, it was a dark and stormy night when mary jones was returning from the prom, you know that this man will be in the penitentiary. what was unusual yesterday is that justice scalia says that in 2005, eliot spitzer brought this action and he has been succeeded by attorney general cuomo. but several people had their heads spending as to why he was mentioning the person who was not the attorney general and it seemed to invoke an attorney general in this way, to mean that the attorney general was going to lose.

but that is not what happened. what the court held was that, with the justice joining the courts, for the traditional members. congress could not free of them from regulating the business of banking. if they bring the action in court to enforce the fair lending law, they cannot utilize the independent authority with the attorney general and the authority over the corporations to act on this, even with the court looking for a subpoena. new york judges, or actions by

the state officials, against national banks, are fine. this is really summing up the court, if they look for the enforcement of the court, they must survive a lawsuit to risk -- to persist for risk sanctions so the judges are prevented from having fishing expeditions or looking through the books, protective orders and unsupervised discovery. they may do this at any time for no reason. the banks are free from having the attorney general showing

up, the currency is already they're going through the pages. but this shows the power of state regulation. in the future. what is interesting to me is that you looked at the preemption in general, is whether the attitudes are going to change, and when the party that has been more associated with aggressive regulation on environmental matters, discrimination, and consumer protection, takes over the executive branch, so that the people on the side of looking to avoid preemption, they were active on the environmental consumer related issues, have

thought that the national government is engaged in serious regulation. those people are now in the government, running the regulatory agency. and once you put in someone who is coming from the environmental community in a national position, in one of the federal agencies, you are looking less desirable, and to some justices over time, less necessary to have competing state regulations so that, the attitudes have not shifted, and this is a somewhat more aggressive regulatory authority in washington. this may change the dynamic under which we have these statutes, and in a way that may

be less favorable to the state attorney general enforcement. and those who now have a friendly officer with the environmental protection agency, really what competing regulations, from the new environment. the second area that i want to mention is a very interesting split, on the discussion about judges and principles, and that is a case which produced a 5-4 split, that is unusual. we see this every few terms. in a very predictable way. this is scalia and thomas,

stevens, su justice souter and ginsberg. they can call the technician to the stand when there is a scientific report against the defendant. and the defendant, roberts, alito kennedy, and prior -- alito, kennedy and justice prior -- just as briar -- justice breyer, this won't work. to which thomas and scalia say, what part don't you understand?

you have five people talking about 1791, talking about the crawford case and what was the semblance when the bill of rights was adopted, and the others who are talking about what makes sense in the administration of justice. this is the fourth time i have had this unusual split. you have the littlest verses the -- you have the literal legalist vs. the liberal legalist, who make up the majority who decide to cut back

on the authority. and the most pragmatic justices was made of justice rehnquist, o'connor, kennedy and breyer. this is roberts, alito, breyer and kennedy in the pragmatist group. it is unclear where justice sotomayor will be. this may be an area where the court is shifting to the right, in favor of law enforcement, she was a prosecutor in the manhattan district attorney's office and this kind of grounding may make her less of

the philosophical group, we do not know and she does not know. but the departure of justice souter, or the ideological lines are set up, leaves the court open at that point. his departure, i think, on matters of business and other areas where this will make a difference is that in some areas of business, with these damages, in the important cases he is siding with business in a way that is not as predictable for the justice. -- justice sotomayor.

with the nine -- 9 circuit having awarded two and a half million dollars, what will any of the justices -- it will be hard to get them to overturn this, david souter voted to say that this was too much money and say that this was too much money. the idea was that the new york yankee -- to david souter in cases like this, where the court is no longer clear. we have not mentioned, sotomayor. we have not mention this, and this is an interesting split.

i do think that this case has hardly any thing to do with her nomination, having looked at this over the last couple of weeks, it seems to be clear, that the president was clear on this matter. the decision was determined by this, and the reason that the opinion is short is because this is controlled by the precedent. the judges saw this is exactly the same way and decided this 3-0 in favor of not second- guessing the test results, and they chose not to publish this

so that the results and the fact of the shortness of the opinion, this is a 100 page opinion. there was a review where the law would have been tossed out, and every member of the court wrote like they were making a change adopting a new standard. one thing that is clear is that you are not to anticipate changing the law, you will apply this as this exists at the time. there is an interesting aspect of this, just for the enterprise community, that is worth noting. the court suggests clearly, that some kind of constitutional entitlement, takes place at some point in the process of running

a promotion, and promotion decision. so at least for the government employers, there is a feeling that what a state or city could do in advance of initiating the process, they cannot do this when the process has taken hold. some people say the governments are struck by the fact that they may now be answerable to some kind of due process way, apart from the race, in cases where they have chosen a selection criteria and initiated a process and changed their minds, they have to carry a burden of proof to say that where they were intending to go was unlawful.

this was quite striking. i think that we will have a lot more to say about this in response to the questions. i will begin to talk about this -- and some as a rebuff in a couple of minutes. a pair of cases that are quite interesting when considered it together involved a question of when the courts should take and knowledge problem, where something has gone wrong in a particular instance and respond to the problem by the recognition of the federal due process right. you take tw of cases. alaska, for reasons i cannot understand, will not let them

pay to have the dna evidence tested, and he said would prove his innocence or confirm his guilt. is there a due process right, of access to dna evidence. most every other state would have decided this differently, and most sensible people think, one not let him pay for the test? the question is, is this a federal right? and the majority says that this is not. in another case, which was mentioned earlier, involving the failure of the west virginia judge to recuse himself, this was made by one of the litigants of the case. his place on the court was purchased, by one of the people

who put him there, this cried out for some kind of remedy. and the issue was, should there be a federal and constitutional due process right? the court was split, in a predictable way, in both cases. they favored the recognition of a federal due process right, and in both cases, roberts and thomas and alito -- and scalia -- the difference about who saw the due process right, they did not want to make this constitutional, the area of looking for dna evidence.

i thought that the descent of justice roberts, was very interesting, saying no matter how bad things were, and the court can always look over the decision and overturn this, but the idea of making a federal, constitutional issue out of this, is a very startling concept, and the chief justice had 40 questions that will have to be answered. if and caen -- campaign contributions are part of this, what about the appointment of someone coming into the court? clinton nominated two justices that were part of his suit?

this is very striking. what was most striking about the dna case, is that buried within the dissenting opinion, by the justice, is a remarkable essay, on when the court should recognize new liberties. this is very striking. and this is about something, this is not about the dna issue, it is as if this is a valid part of his next to last sitting on the court. in this mission he talks about the legitimacy of judicial recognition of nontraditional rights, and he also cautions against the premature quest for

national traditional rights. he says he recognizes the value of continuity with the past, and that tradition is a serious consideration when judging of the practice is outside the realm of recent government action. but when this limits the scope of liberties, they are defended against lettuce -- hostile legislation. he sees that the framers refused to limit the liberties that will be protected to a particular list that they have chosen to announce. they chose not to do this, but to leave this open-ended, as a mandate for the future. so in carrying out the mandate, he says the court must but -- find where they stand and these

can change under the rubric of liberty as it evolves into recognition. is he talking about litigation about gay marriage? you decide for yourself. he says, have been defending -- defended the concept of these liberties, he talks about when it would be premature to decide if a general right should be recognized. he said conventional wisdom is to go slow. before declaring an unsympathetic stayed arguable to the point of being unconstitutional, they must recognize how much time that issue needs. then this takes a personal turn. he says that we can change -- nations are like individuals in changing their minds about accepting new ideas.

we can change the inherited you so fast. a person is not stocked in the mud if they do not take a new plan, without being given time to work through this. sometimes the limits of experience may limit the capacity to see the potential legitimacy of a moral position. so it is with the broader society, that needs a chance to take part in the public and political back and forth about the new liberty claim. what he is saying is that the conceptions of liberty are evolving, and his last claim is that nations, like individuals, after have time to assimilate new thinking.

>> thank you very much. before we go to the questions, i want to talk about his observations about the expected ascension of justice sotomayor, and i would like to ask my colleagues if they have any observations of their own in that respect that he would like to share? >> just in the question of where this is heading, this is a political process, this process has been made that she is going to be confirmed. and this -- this is the consequence of the composition of the senate, which will, when the comedian shows up, they will

have a filibuster proof majority. the funny guy. and the senators from maine. and the fact that this is the first latina nominee. i think that this has been gravitating in a helpful direction. just as there were tremendous liberal attacks on the chief justice, that were unwarranted, there were also those on the justice sotomayor, calling her racist. these continue from the conservative advocacy groups. but the mainstream senators among the republicans have been heading in the direction of

debating the big issues. they have to tie these to this justice, but hopefully when we get to the hearings we will be in the context of a debate about deciding the case, the public will gain a lot from this. and there is the tradition that you do not answer questions at confirmation hearings. hopefully we can throw away a lot of the labels, and have a genuine intellectual debate that will help the country think about these questions. >> one thing people have wondered about is, where she will end up fitting on the spectrum on the court, and, i was once a u.s. attorney, she was a district judge and i appeared before her a couple of times.

i have not studied her decisions the way that tom has. but some of this is based on intuition, but -- my feeling is that the current members of the court -- she will have much in common with justice ginsberg. she strikes me as being a moderate liberal, as a judge, in the way that justice ginsburg is, i would be surprised if she turned out to be marshall or brenan, or a blackmon. it would surprise me if she was like justice stevens. i believe she will be in the middle of the left side, with her opinion. the other reason i would compare

heard this way is -- going to what walter said, the distinction cuts across the ideological lines, between the provincial people. she is very much into legal formalities, she is legalistic, and sometimes people say that she is a lawyer's lawyer and she is very serious -- serious about the judicial process and she will often reach a liberal result, but this will come from a process that she takes very seriously. she does nothing that judges are political actors who have to pretend that they are not. and they did not have to cover upit