thought we would organize around function rather than around one of the simple functional aspects, transportation, energy, what have you. that failed. .

>> was there a lack of the integration of the constitutional people in the process of developing the proposal? >> yes. i don't think there was really close interaction between the congress and the presidential staff when we sent that bill up. i sometimes wonder how serious it was because when they really wanted to pass something, there was really close interaction. in the drug area, there was close interaction between congress, the white house staff and budget and legislation. we were able to get it through without a accidenting vote. >> let me start out with the successes, which i believe merit saying that president carter had as many legistlative successes as any first term presidents and would equal those of most two-term

presidenting. three major energy bills were passed which laid the ground work for our energy policy today. breaking the knot on the pricing for oil and natural gas and therefore encouraging their domestic production. major conservation initiatives and major initiatives from solar to syn fuels for alternative energy. the first major caffey standards, fuel efficiency standards set in 1977 through 1985. today at a team we are twice as dependent on foreign oil as we were there. the average fuel efficiency standards for our automobiles is less than it was in 1985. he was a mainly conservation president, i think the greatest since theodore roosevelt, setting aside much land, building on many of the things that president nixon did. he deregulated all forms of

transportation, airlines, trucking, bus, rail, and brought airline travel to the great middle-class who cooperate afford it before. he created two major departments, energy and education, but brought those two issues up to the cabinet level and therefore up to a higher level of public attention. he got the tokyo trade round passed with only two accidenting votes, passed the panama canal treaty legislation in both the senate and house and the salt 2 and camp david accords. having said all that, it reminds me of the story about the boxer who comes back bloodied after the third round, sits in the stool and the manager says you are doing great. the guy hasn't laid a glove on you. the boxer said then keep an eye

on the referee because somebody is beating the hell out of me. why were we getting beat up. external events which impact on a presidency. in this case, the great inflation of the 1970's which be deviled presidents nixon, ford and carter, and the iranian hostage situation. there were also self-inflicted wounds, and this gets back to your question about staff and organization. the president under the constitution has actually limited authorities except being commander in chief. in the domestic area, his primary capacity is to initiate legislation and then be the the salesman in chief for it. in order to do that, you have to have a very clear message, you have to set your priorities, and you have to have a communication strategy which is integrated into that. that begins with one having a

highly organized white house staff. we made the mistake of not having a chief of staff for the first year of our administration, adopting a so-called spokes to the wheel concept in which senior aids each had equal access. that meant there was no single person who could create these priorities, limit them, focus the president's attention, develop a communications strategy around them. closely aligned to that was not having an experienced white house staff. i was in a sense the veteran, having served one year in the johnson white house and in the humphrey campaign. but all the senior people were largely inexperienced, with an inexperienced president who had sent four years as governor. others learned the lesson from that by bringing in people like jim baker for honored reagan,

people like leon or john for president clinton, randy moss manual for obama. people who knew them coming from outside of washington. not knowing washington is a terrific problem because it is a complicated place with many power centers. you have to have not only a chief of staff but a staff that has some experience with washington. another self-inflicted wound was priorities. we learned after the first year how to set them. they were set very effectively through the vice president's office, focusing only on two or three a year. but that first year we tried to do everything. a major energy bill, a major hospital cost containment bill, airline deregulation, welfare reform, a stimulus package. therefore, we confused the message. there wasn't a clear, focused message around which the public

could organize, the president could mobilize public opinion and get congress to pass it. so although a lot got done, it paled in comparison to the null of things that were done, which again teaches me the lesson that congress is an incrementsal institution. it can take things in bits and pieces. if you load too many big, comprehensive measures before it, then what will come back will inevitably pail -- pale in comparison. the last self-inflicted wound i would put under the title no surprises. congress hates surprises. you have to prepare the congress for what you're proposing. the hit list for water projects was a surprise. it hat congressmen right in the solar plexus, right in the home districts where they like to cut ribbons for new projects. it was not prepared, and there

was no warning for it. the first energy which was courageous, had not been a major issue in the campaign. the president bud someone under a 90-day deadline to do it with no consultation on the hill, no interagency review. the president's economic advisor came in with a memo just before the 90-day deadline saying we haven't seen this. we need to know what the cost implications are. those are the successes and failure. we learned from our failures. that is why we had so many successes, but that first year was a very difficult year and that set the pattern of people's thinking about the administration and its ability to work with congress. >> there is one kind of puzzle about this. it strikes me that the core of what you said kind of comments back to the point about

inexperience. that is, people that didn't have the kind of background to know how to operate in washington, and some of these other things look like consequences of it. the lack of a chief of stay may be. let me get to the really interesting thing here. did anybody make the point to president-elect carter prior to his taking office that you are putting together a lot of people who haven't been there? what was the ultimate source of this? was it because of the president's lack of understanding or something else? >> every president wants to bring with him the people who made his election possible. you had the california gang who came with reagan. you had the georgia gang that came with us. nixon had his group. every president wants people in whom he can trust. there is always a risk of bringing in somebody from outside. but president reagan made a

fundamental decision, learning from our lesson. he took the campaign manager of his principal opponent to be his chief of staff to sort of mellow the people around him and bring in that experience, namely jim baker. that was something we were not advised to do. i think president-elects are at their peak of power, and it is not good to go up to them and say mr. president, you're not to go the right thing. we brought in experts to run public liaison. later, lloyd cutler as lead counsel. that wasn't done at the beginning, and we paid a frightful price for it. >> roger, he had three presidents, but to simplify things, why don't you maybe focus on president reagan? and we have jim here to talk about president bush.

>> ok. let me just mention a word about president ford first, because i think omitting him in this context would be unfortunate. during the three months before gerald ford took office, the wholesale paris index was increasing at an annual rate of 3%. this is the most explosive outburst of inflation in united states history. at the same time that inflation was increasing at high double-digit levels, the unemployment rate was increasing, something communists has told us was not possible because of this thing we call the phillips curve that post lates an inverse relationship between inflation and unemployment. now we had the worst of both worlds, rising inflation and

unemployment. four days before taking office, gerald ford decided to convene a summit conference on inflation at the urging of congressional leaders to decide what to do. in one of those meetings he convened a group of 30 leading communists. -- economists. 15 democrats and 15 republicans. they included names that would be familiar to all of you and i assume our listeners as well. after meeting for three hours, he asked the former chairman of president johnson's council of economic advisors to summarize. he said we all agree that inflation is bad and must be brought under control, but the one thing on which we can all agree is that we have an excessive amount of regulation and that we need to begin to

deregulate what was typically known as economic regulation, transportation, energy, telecommunications, financial services, et cetera. and that began very early in president ford's term, and followed by president carter, and followed by president reagan, and followed by president bush, and followed by president clinton and the second president bush, a series of measures which have in fact done an enormous amount of good with respect to the overall performance of our economy. president ford made a very difficult decision. jim cannon, who is with us, will remember. his first state of the union address on january 21 that he would propose no new spending programs until he had brought inflation under control.

he worked relentlessly, and the great forgotten fact is that he had brought inflation down to 4.8% for 1976, which i think is one of the underappreciated accomplishments of a president who was willing to take decision after decision to do this. he did this because he had a staff can was organized there what was called the economic policy board that took all issues to him and were relentless in basically saying the prism through which you need to do this is how can we effectively bring inflation under control? now when president reagan came in, he again had an enormously challenging task as to what should he do with respect to the economy, because as stewart pointed out, we had gotten back on the inflationary bing, and

we had two years of back-to-back double-digit inflation, 21.5% prime interest rate, virtually no growth through the previous two years. and he proposed a plan that was put together and implemented by his staff, but that he was integrally involved in, which was restrain the growth of federal spending, of taxation, regulation, et cetera, and that again was something that he was relentless in introducing, the notion that markets-oriented arrangements would be the preferable way in which to deal with and address these. and for the most part, that was followed for the next 25 years. when we are assessing president's successes and failures, we need to not simply look at the moment that it is enacted, et cetera, but we need to see the longer sweep of

history. this sounds like a great success story. there was a problem. president race knew when he came in that we were facing a difficulty with respect to indictlement spending. we had had an increase in indictlement spending -- indictle men entitlement spending for 15 years. so he tackled that. and he made a proposal -- it was actually leaked to the press two days before it was announced. the republican controlled senate voted 98-0 two days after sfargeing the president's plan. it was effectively killed. tip o'nile tried to convince

americans that civilization was going to end, and he lost 26 seats in the midterm elections. he tried to address it again at the beginning of his second term. he got it through by one vote, but could not get the restraint on the colas that had been put in, in 1972, what i think in retrospect was one of the great mistakes we made. it put us on a path that rays created huge problems for every president since then with respect to how do we deal with entitlements? >> you told the story of enormous successes and gross mistakes, or at least failure. is there a staff story underlying this?

>> ultimately presidents make the decisions. i don't think it is fair for presidents to blame or necessarily give credit unnecessarily to staff. what staff exists to do is to make sure the president you saids what his real choices are and what are likely to be the pattern of costs and benefits associated with various courses of action. and to make sure that the numbers that are being presented to him are accurate, and that they are not inflated or based on hope rather than reality, and to help him understand what in fact his real choices are. and for the most part, i think in ford and reagan, and i think in the first bush term case, staff did a reasonably good job of making sure that he

understood what those real choices were. >> roger is being very kind and gracious here because he mentioned 1972 as when they did index social security payments to colas to the cost of living adjustment. that was under richard nixon. it seemed like a good idea at the time. let's put it that way. [laughter] >> i think one important point to bear in mind about the bush 41 administration was that he was the first president to represent the third consecutive term for his party since truman. if you think about the cycle of strength a president has, it pretty much goes straight down from the moment he is sworn in to when he leaves office. so by the time that we came in, in 1989, republicans were in the severe minority, no prospects of getting it back.

the country had rejected michael dukakis, biit wasn't like they were in love with the represent regime after eight or nine years in charge. when president bush came in, therefore much of his agenda was pretty much set by a combination of the democrats in congress and the media. when your job is to negotiate things like the clean air act, and the assault weapons ban and the americans with disabilities act, i can't think of anybody i would rather have doing my negotiating for me than roger porter who had an infinite understanding of those issues and a degree of patience, suffering fools ghadly, not to say anything bad about the congress or the cabinet --

>> or the staff. [laughter] >> anyway, that was an incredibly difficult task that i think roger performed brilliantly. the cap and trade legislation, which emerged from the clean air act was a major new idea. it is very hard to both enunciate a new idea and actually get it impolicemened. it is one thing to be a bright young thing to think of something, but then to get it done, but they managed to get the country -- with lots of democrats thinking that yes, we have this profound new idea on market forces for emissions controls. it didn't do bush 41 much good politically because the democrats got most of the credit, and the represent base

hated most of those things. i do want to associate myself with what stu said about the extraneous events and that roger also said about the grand sweep of history. it is important -- not that bush is unique, but big things were happening in the world. the fall of the berlin wall, tiananmen square, both of these happened early in the bush presidency. and another thing that had a pro found effect on me was the central park jogger case. we have had this sort of consensus about big government and the welfare state, and boy, is it lousy in its functioning, as we can see in this case. we have this horrible crime rate in new york city, and this horrible situation, and this

underclass which is obviously a severe indictment of what we were doing. and then of course in addition you had technology. the computer came along in a big way. i think here is where the bush 41 white house was struggling, and i say that in a good way, to deal with these things. what does it mean when your old systems of government just aren't working very well. when old bureaucracies are collapsing. brezhnev had passed away by them. the public housing authorities are corrupt, and the schools aren't any good, and we are a nation at wisconsin. that is what i tried to struggle with. it was to say look, are we learning new things about empowerment, market forces, and flattening pyramids and things like that.

are we seeing it in business and effective in government. david osborne came and visited us several times, and we had discussions with him. this was a case where a lot of the intellectual capital that was generated by bruce back it and desoto actually didn't do bush 41 any good because he wasn't that interested, but the clinton administration was with the help of others able to bring in the reinventing government effort to great positive effect not only for the clings, but also -- clinton administration but also for america. >> is it possible if a president to structure advising in such a way that he can get wind of earth-shaking trends like that, or is it pretty much

always focused on narrow issue management? >> i sort of associate myself with what henry kissinger said. you bring all the sblactwal capital you have to the job. i am sure others would have examples, too, of presidents who were more alert to trends in the culture and the larger climate. >> let's move on to bill? >> like a good student, paul, i am going to begin by answering the question posed, the violation of the first principle of modern media relations. but we can always pivot on to the question you want to answer as opposed to the one you have been given. but like the semi-demi, hemi

rebel that i am, going to segue into my open take on the question. but coming last remind me of one of my favorite stories. morris udall had taken a freshman member of congress in toe. they were seated next to each other when this very long debate went on and on. finally the freshman couldn't take it any longer, and he tapped him on the shoulder and said why are they still talking? everything has been said. he smiled and said yes, son, but not everybody yet has said it. that is my role. let me just give you a few things on the staffing issue that i think i have learned not only from my experience in the white house, but from observation and study of other

people's experience in the white house. i hope that future presidenting with all put this in the bank, as will their staffs. number one, a strong chief of staff is a necessity. i think we have tested all the alternatives, and yeah, there are down sides to a strong chief of staff, but the president has to be smart enough to manage the down sides because the down side of not having one is prohibitive. number two, you do need keepers of the flame. loyalists who are prepared to remind the president and the people around the president that there was a campaign, that the president stood for something during the campaign and needs to keep that in mind during governance. and third, pulling to some extent in the other direction, experience matters. very frequently, loyalists are inexperienced, and the experienced are not too loyal. a president has to be able to manage that. i think, frankly, it was

self-defeating for the clinton white house on day one to take the position basically that nobody had served in a previous dimic administration could serve in a clinton white house. i am seated next to someone who could have done us a lot of good. the fourth thing i think i've learned is that you cannot outsource the president's agenda either to the departments or agencies or to the congress. cabinet government won't work for the president under modern circumstances, although the cabinet is very important for other purposes, but congressional forfeit won't work either. we shall see. and finally, and this is something i learned from personal experience, draw on

the permanent staff that is available to you, particularly in the office of management and budget. when i got into the white house, i didn't understand what the office of management and budget was. what an enormous of institutional policy and memory it was, and how much your own thoughts could be leveraged by the wisdom and people who had been working in particular policy areas for so long. and if i could pass on one piece of advice to young people coming into the white house as part of a president's team, find out who your counterparts are not only in the departments and agencies, but also in the office of management and budget. don't take everything they say as gospel, but listen very carefully. now, if i may, i want to segue into a broader set of reflections about success and failure in the policy realm.

these are some rules of thumb i've taken away. first of all, begin strong. as the old saying goes, you never get a second chance to make a first impression. i think every president, every new administration has to think very hard about how to lead from strength. and if you stumble into something like the don't ask-don't tell controversy, you're going to pay a price because what comes first helps to frame the public understanding of everything that comes next. stu has talked elegantly about successes of years two through four of the carter at stration, and how much did the first year frame that in terms of the public understanding. secondly, in all sorts of ways, consistency with your campaign is important. if you say you're going to focus like a laser beamon the economy as bill clinton did,

don't stumble into don't ask, don't tell. if you say you're going to be a new kind of democrat, then when members of congress tell you don't do welfare, do health care first, push back and say i am not sure that is why i was elected. third, you really have to focus and select. campaign is about addition, but governing is about selection. 1933-1934, the 100 days, and lyndon johnson's 1965-1966 great society periods are anomalies that no one can rely on. generally speaking, you cannot do that much. you cannot flood the zone and hope to complete very many passes. when you need to choose among elements of your agenda, make cleans choices as bill clinton

did early in 1993 when he had to figure out a couple of things. circumstances changed, and he had to adjust by making a choice. large and sustainable changes are rarely built on slender partisan majorities. welfare reform, one of the great victories of the clinton administration, proved to be sustainable precisely because when it happened, it was a bipartisan effort. take what you can get and declare victory. if you hold up your veto pen and say if i don't get 100% of what i want, i i am not going to take anything, you are likely to get nothing, a. and b, you are likely to pay a huge political price for

getting nothing. we have been talked to talk about success. well, success it an am big yuss concept. there is policy success and political success. what success politically doesn't necessarily succeed in policy terms and vice versa. what do you do when there's a tension between those two position. no president can be indifferent to sustained political support. but achieving that at the cost of what needs to be done is a hollow victory. staff people around the president have to worry about feeding a president's desire for sustained high poll ratings. at some point you have to say mr. president, you're right, we are all going to pay a price, but if we don't do this, we will never get another chance and the country will be the worse for it.

>> are there failures in the early stages of the clinton administration that an experienced hand like stu could have helped to prevent? >> well, let's take what i view as one of the defining decisions of the early clinton administration. we were getting lots of different advice about welfare, and health care, which to lead with. it is a matter of record that bill clinton moved to the highest level of emphasis during the campaign the idea of ending welfare as we know it. in the key swing states, in the 10 days before the november election, the only ads that were up were welfare reform ads. that represented a pretty

solemn undertaking, i believe, with the american people, and i suspect very strongly that if there had been a stewart as deputy chief of staff for policy, he can speak for himself, but i think he would have put his thumb down on the scale and said mr. president, and to the people around him, this is one of the things you were elected to do not eventually, but immediately. and yeah, congress is going to tell you don't do it, but i think you have to insist. that might have made for some very tense conversations not only with the president but with others very close to the president. and that is one of those areas where a combination of experience plus distance might have served the clinton white

house very well. >> i would like to bring some more people into the conversation and to sort of put another ball out there in the air. i would like to talk about how the politics of an issue and political advice mixes with mauer substantive advice. what bruce reed has soon to be famously called the wants and hacks trade-off. to break it out further, the policy wonks are those who have ideological commitments or maybe practice additional partisan views and those who have relatively objective

information. how is all these types of information integrated in your experience? we will go to bruce first. >> look, i think the definition of success is not what most of the political world thinks. it is not just winning elections, though you can't do anything unless you do. it is not ledge slave victories. but even when you pass a law, the work has just begun. the real definition of progress is actual results, actual progress for the country. and i think that is the hardest thing for a white house, yu young or experienced to recognize, that over time the best policies are the policies that actually work. we had plenty of successes that

were political successes. the only reason that it stands as a real success is that it helped move a bunch of people out of poverty and ended welfare as a way of life. i think the challenge for all of us wonks is that the rest of the white house is generally looking for short-term political victories in order to keep the bicycle moving 4 >> i can remember a few times where the hacks were worried about short-term political unrest. we had a bill that passed congress, and it was head the to the white house, and the political and communications advisor said the president is busy right now,, he is on a different message, and we need to put that off for a couple of weeks. it took one of the wonks to

point out if we wake two weeks, that will be a pocket detail. they are just doing their job. we had one of the breath takingly cynical hacks in dick. but the deaf situation of his job is to get the president re-elected. that is not the definition of success for a lot of the rest of us. we had about we referred to as the mad man theory. our mad man was a crazy political advisor who was full of a bunch of ideas. three of them had some merit, and the other seven led to our immediate undoing. but they forced the bureaucracy to do ideas that might make sense.

the fact that wonks are always fighting an up hill battle in that regard and is one of the greatest challenges of the job. when i became advisor, stu wame in and told me of a great tradition, and i would like to hear from others whether they had it as well. he told me that when he became domestic policy advisor, his republican predecessor had left a bottle of malt whiskey in the office state. he said it was a tradition that dated from john erlichman. when margaret came in, i left behind a bottle of whiskey as well. there is a reason that domestic policy advisors need to keep a bottle handy. [laughter]

>> first, just for public record, after being nominated to go to brussels and be ambassador to the e.u. by president clinton, matt called me over in may of the first year of the administration and said stu, we have decided we need more experience in the white house. would you be future chief of staff? i said i am going to brussels, and he said the president wants you to stay here. >> i went back home to talk to my wife, and she said if that is what the president wants, i won't after any belgian lace, but you will be to go what the president wants. i called him back and said if that is what the president wants, that is fine. three days later i was told i was going to brussels. it was good for me because it

gave in he and international profile, but i will leave the rest to history. i want to talk about superven iny events that occur. certainly jim had it with the zadzad -- zaudzaud invasion of kuwait. the iranian revolution occurred in 179 when ayatollah ali khamenei came out of exile, came back to tehran, and we have born the consequences of it not only in iran but worldwide ever since. that would have been something that would have taken a creative genius to understand the forcing leading to that. we saw that the shau was on

shaky ground. the question is how do you react? we are dealing with domestic issues. i want to talk about the domestic impact, which was a rise in gas prices and gas lines. five million barrels of oil were taken out of production because of the day yoss in iran. it took me 30 minutes to fill up to get to the white house to deal with the problem that everybody had to wait 30 minutes. here is where the policy mistake was made. we had had the courage to deregulate natural gays, the courage to deregulate crude oil, combined with a creative win fall profits tax to get the democrats to go along. this was one of the worst mistakes i made. if we had recommended to the president deregulating the price of gasoline, and we were

all concerned about it during a time of high inflation, an initial spike. but that was going to happen anywhere. there would have been a settling price, and the market would have sorted that out. it was an unexpected situation. we didn't react to it in this respect in ways dash berth and i had a disagreement about that. the second thing is the great inflation of the 1970's. it started with l.b.j.'s guns and butter policy. it continued because of two oil shocks, one under president nixon in 1973-1974. the second you said president carter, 1979-1980 which doubled the price of crude oil in a 12-month period and increased innation from 7.a% to 12%. the question is could this have

been anticipated and did he with in a better way. it be deviled nixon. is bedeviled president ford who did the much-vaunted whip inflation now button. and it bedeviled us from wage incentives and price guide lines, the inflation zars. the forces of inflation were so ferocious, and we could have perhaps seen that better because inflation did go down, as roger said, during the ford period. we thought it was going to be extinguished. we thought the election, jim, in 176 -- and this is where campaign promises come in, against the ford recession. we were going to stimulate the economy and create more public jobs. we took our eye off the fact that that inflation was only a

smoldering ember. it had not been extinguished. once it dawned on us that this was getting into the page price spiral, all of these efforts made us look infect wal because we were dealing with a ferocious external circumstance. to his great credit at the very enof his presidency, before the election and over the objection of his economic and political advisors, he finally said, president carter, we've got a fed chair manship to fill. i am going to bring paul volker in. volker told him i am going to choke this economy and race interest rates. that is the only way to drain this inflation out. we said this is going to lose the election for you. i said i am going to take those risks. so he was very courageous in

doing so. but this is a question of an external circumstance that perhaps might have been better anticipated. but even if it were, i would suggest that with that second oil shock, because of the revolution, it would have been very, very difficult to avoid the consequences. it was also the end of an economic era. it was the end of cainsian economics. it was the rise of the freedman monday tore supply. i would suggest that one of the things as i look back, our fiscal policy was not sometime latiff. we had a very low budget deficit, but we had a very expansion area monetary 0 policy. the change in cainsian economics was basically the end of this era and a focus on tight monetary policy. it ended up benefiting president reagan and helping lose our election. but president carter did ultimately put in place a

policy that dealt with the great inflation of the 1970's. >> what were his economic advisors suggest something >> going back to the beginning of the first stimulus, mike blumenthal, who had been accused of talking down the dollar, that is having a low dollar to sometime lace exports, turned 180 degrees and became the inflation hawk and recommended we drop the $50 rebate from the package, which had been designed to have no long-term budget impact. the president made the decision after it had passed the house and after the senator put it in a third budget resolution to pull it off the table. we paid a frightful political price for that. it perhaps in macroeconomic terms was the right can't. i think that charlie schultz,

his chief economic advisor feels that the 1977 stimulus package was the right thing to do to get the economy back on track and that the 1978 stimulus package was the wrong thing, and we should not have oversometime lated the economy. >> it seals like quite a few of the cases we have talked about are ones where either very important political considerations were overlooked, or sometimes it seems like political considerations were allowed to dominate despite important -- >> all the presidents would have been avoided those decisions had they been aware

of both sides. >> i can remember being in the old executive office building with lee atwater in the summer of 1973. i worked in the reagan administration as well. the tv came on, and said the soviets had shot down k.a.l. 007, this airliner with hundreds of people on it. president reagan was in santa barbara. it was a weekend. we got on the phone with ed meece and said look, you have to do something. the pentagon is handling it or whatever. i can't remember exactly what reagan did, but we got something done. atwater wasn't the only one doing it, but he was on on

watch at that point. compared that to 1985. it was a public relations fiasco. when president visited this german s.s. cemetery. it is inconceivable that that would have happened if they had had a re-election campaign happening. >> the reason that i to some extent pushed back against the steff-centric formulation of the initial question is that i deeply believe that in the end, every president gets the white house he deserves. that is to say that it is not the case that presidents are betrayed by their staffs, because the staff that a president has around him and the way that staff is organized

reflects the president's personality, character and other things. what that tells me is that at the end of the day, this integration of the policy considerations and the political considerations is one of the president's highest responsibilities. and at the end of the day, that is a judgment that the president can't delegate when it really matters. and presidents who are really good at keeping those two things in balance are the ones that will succeed. the ones who give too much weight to politics will win hollow victories as best. the others will be failures. we can try to organize institutions to the best that human ingenuity will allow. but at the end of the day, institutions can perhaps mute

the amplitude of variation in decision-making, but they cannot substitute for wisdom and judgment in the person at the top. >> one anecdote. ham injureden, who later became chief of staff once joked that the worst thing you could say to president carter is this will horsepower you politically if you do that. there was the sense that his ultimate political reward would come with re-election if he did the right thing. and that led him to take on every kind of difficult issue, energy and so forth, the panama canal, camp david, the israelis and the palestinians, with many successes, but much broken crockery. at the end of the day, he might have succeeded if these external events of inflation

and the hostage crisis had not occurred. that is a big if. >> i would like to get berth to come in and then come to roger after that. >> the whose really does three things, and those three things are in the end only the president can do, for better or worse. you have to lead and inspire this enormous executive branch, which is very real and important. you have to persuade members of congress to do things that they don't want to do, which often means things against their political interests, things like voting for the panama canal treaty and saying goodbye to your senate seat. that is something in the end only the president can do, however he does it. and then you have this role

about we have spent too much time speaking to the american public, and really only the president can do that. people who get elected to the presidency have great strengths in these things. but you can easily get elected president and not know much about managing anything, even if you have been a governor. you have to be able to give a speech and get people to follow you. you don't necessarily know anything about managing. and a lot of politicians, they live in a stream of information. there is enormous information that comes to most elected offices. when you get to the white house, that stream of information is is cut off. before they talked to reporters and state legislators, and they had town meetings where people ask real questions, and people

call them on the phone and yell at them, and this all stops. this is a very important point. while i agree with you that president he is get the white house staff they deserve, the ones who get that staff too late are at a tremendous disadvantage. so this intellectual effort is well worth being engaged in. >> president ford, not having been elected of course was initially not at all interested in being elected. in fact, his first days in office, he told kissinger that i am going to make an announcement that i am not going to run for re-election. kissinger for self-serving reasons and the public interest as well said you could do that, mr. president. you reduce yourself -- you will

neutralize yourself if you make that announcement today. he said ok, i guess you've got a good point, henry. he probably had been in office six months before he decided well, i like this job. ic see anybody else who is better than i am at this, so maybe i will run for office. but he still hadn't done anything. i think it was in may of 1975 that i talked to rumsfeld one day and said we are not doing anything to get elected. rumsfeld said well, that's right, but if i may, i would like to go in and tell him this. he said you go right ahead.

i went in to see the president, and i said mr. president, we are not doing enough to get elected. he said well, i figure this, jim. if a party thinks i should be nominated, they will nominate me. and if the country thinks i should be elected, they will elect me. that is the way i have always down it in my congressional district, and so that is my plan. i tried to say mr. president, it doesn't work that way. you've got to go out and get these delegates and so on. still we didn't do anything until stu spencer came in and said mr. president, he is not talking about running, reagan is running, and so we have got to get going. only then did president ford kind of activate if that is the right word, his campaign.

and even after that, stu mentioned the worth thing you could do with ford as well was tell him this will horsepower you politically, because he would almost always do the other thing. we needed texas badly in the texas primary, and president ford sent kissinger to south africa, i believe, and everybody said -- political people said that is a disaster. the president said that is the right thing to do, and we are going to do that. we never really got started until a little too late. we virtually invited reagan into the campaign, and it was touch and go all the way. we barely made it. we wouldn't have made it in my opinion except that rockefeller

took himself off the ticket. but if he had been on the ticket, we would not have won some of the southern delegations, particularly mississippi that was instrumental in making the difference.

quality legal *" has been covering law in washington. i don't think there has been a moment when covering washington has been more critical. it's such an important aspect of all our lives, not only washington, but across the nation. it's one of the key reasons that in the last year we have merged "legal times" and the quality national law journal." we felt that providing coverage to the legal community across the country was important and -- important in everybody's daily lives. that's especially true of the supreme court, which is at the center of our coverage. we have been writing about the courts subtle shift that seem to reflect the priorities and

personalities of the chief justice and his more conservative colleagues on the court. we also been covering very closely the nomination of sonia sotomayor to the court. i would like you to follow -- i would like to invite to follow up our coverage on nlj.com, or we have daily updates and archived news continuing threat the confirmation and selection process. next week, senate willing, we will get live updates from the hearings. our coverage of the court is led by one of the best and most distinguished correspondence and the country. he will be leading our discussion today. with that, i will turn it over to townie who will introduce the panel. >> thank you. welcome to our eighth annual supreme court review panel. thank you to our sponsors and our publisher who is here from new york. i would also like to welcome a

number of bristol follows from this with your general office and in turns from that office and the supreme court as well as those who are attending today. this has been a very significant term at the court, with decisions on issues ranging from title 7 to the seven of for some. from the federal effort is ms to fleeting [unintelligible] and the departure of justice david souter, which is a very big deal. one week from today, the senate judiciary committee will begin hearings on the sonia sotomayor to replace him. in short, we have a great deal to talk about and a terrific panel to do just that. what makes this panel different from all the others around town and country at the end of a supreme court term, each one of the panelists has argued at least one case before the court. in the term we are discussing.

nothing focuses the lore -- the lark -- the lawyerly mind than the prospect of standing before the nine most important judges in the nation. we are guaranteed everyone in front of you has thought very deeply and at great length about the supreme court in the last year. we are especially lucky this year because the cases our panelists have argued are among the most important of the term, including the blockbusters that came out in the final weeks. the voting rights act case and the new haven firefighters' case and the case on post-conviction access to dna evidence. or were they blockbusters? they have been analyzed in many different ways either as self- like, narrow, kicking the can down the road, or very important or all the above. i hope our panelists can tell us what they think the decisions tell us about the roberts court. we have also had lawyers have

argued major cases decided earlier in the term. the major business case of the term on state versus federal regulation of drug labeling. then there is the case which asks whether a city that allows the 10 commandments monument in a public park must also allow a seven aphorisms monument in the park as well. it's a varied diet, so let's begin. the plan is each speaker will have some opening remarks and then i may follow up with some questions and we will encourage panelists to engage each other with comments and questions and then we will encourage questions from you in the audience. i'm going to briefly introduced the speakers and there is more information about them in your brochures. our first speaker is pamela harris is getting familiar with these environments. just a few days ago, she began a new job as executive director

of the supreme court institute at georgetown law which has helped hundreds of advocates prepare our view -- prepared to argue before the supreme court, including many if not all the other panelists today. before this new job, she was a council where she played an important role in the system the criminal defense bar in its advocacy before the supreme court. she represented an interesting religious group in a variation on the recent theme of cases involving 10 commandments displays in public places. then, we will have the deputy solicitor general of the united states who was the first to plant the new administration's plan in the solicitor general's office on january 21 street he was on this panel three years ago, having argued against the government and very successfully in the landmark hamdan decision. he said he had done 15 practice sessions for the case and i [t'eivó[oçó[o to pt

extensively. but he did hit the ground running and argued to make your case for the government on post- conviction access to dna evidence and the landmark case on the constitutionality of section 5 of the voting rights act. next we will hear from gregory coleman, who was one of those rare lawyers who has been able to develop a very successful supreme court practice from outside the beltway. austin texas, to be -- austin, texas, to be exact. he argued against neil on the voting rights case, voting for those who want to get out from under the preclearance divisions of the act. he also argued in the new haven firefighters' case, challenging the city's refusal to certify the results of a promotion exam because no african-americans did well enough on the exam to

comply. last, have a member, david frederick, from the texas panel. he is based here in washington. he was with us on this panel four years ago and had developed something of a niche practice representing consumers to challenge the concept of federal pre-emption, the concept of federal regulations preempt states from regulating in the same area either through a state statute or lawsuits in state courts. he won two major cases this term and he also advises the supreme court clinic of his all modern, the university of texas law school. it goes without saying that all four of our panelists have served as law clerks to justices of the supreme court in their pasts. i was hoping that pamela could start us by talking about the

case which certainly seemed like an establishment clause case but was not handled that way. your thoughts on the term over all? >> that's an interesting question, whether the case was handled as an establishment clause case or not. the was no establishment clause claim being raised in the case. nevertheless, a lot of what was driving the justice and a lot of the strategy in the case was playing out against this kind of shadow establishment clause background and what helped claim result in the case. i thought my clients had a very sympathetic free-speech claim. they were very sincere and at the end of the day, they just wanted to express their own religious views in a public park that was already home to different religious views in the form of the 10 commandments monument. while the seven aphorisms were certainly unfamiliar to most

people and struck people as quite foreign, there is nothing offensive about them on their face. it's a contradiction, but there were mayor -- there were a very mainstream, new age religious tenets. sort of emerson and thoreau but dressed up in new age religious garb. on their face, there was nothing outrageous or hateful and really nothing offensive about the speech they wanted to engage in in this public park except, and this was the crux of the case, their proposed monument would have been placed very close to the 10 commandments monument. so it might have conveyed the idea that the 10 commandments were not a singular or the only religious truth. i think people were very deeply and very genuinely offended by that the implicit message. some people found it quite literally blasphemous to put a different religious monuments so close to the 10 commandments monument. this raised what i thought was a

fairly compelling set of free- speech questions. over the last 25 years, there has been a consistent move toward opening the public square to religious views and religious speech. i think that is all to the good, but it raises difficult questions like who's religious speech will be included? if you want to bring your religious use out of your religious community and into the public square and public marketplace of ideas, do you have to be prepared for the give-and-take of that public marketplace? do you have to be prepared for the idea that there could be different viewpoints expressed as well? when you think about the case that way, it does present a fairly compelling free-speech claim. it is not without problems, the question about it. monuments are different from other forms of speech and maybe the government needs more latitude in regulating monuments. but there was some thing sympathetic there which then leads to the question of how did

we manage to lose this case 9-0. this is a 9-0 case. i think the problem for us was that the court did not think about it as a free-speech case. they thought about it against the background of the establishment clause. that was what was playing a strategically and made it hard for us because the more liberal justices who should have been sympathetic were actually very concerned about calling a monument in a public park, even if it were privately erected like the 10 commandments monument, about calling the private speech, which protected under the free-speech clause that makes it harder to challenge under the establishment clause. to show that it is conveying a government bill religious message and not a private message. so the justices who should have been our allies were against us because they were very worried our free speech position within that insulating religious monuments under the establishment clause. the conservative justices had a

mirror image problem. on the one hand, they did not like our free speech claimed. they sought as an end run against prior establishment clause cases that had approved the public display of 10 commandments monuments. they thought this pieces have already approved a right of singular or preferred access for the 10 commandments and not equal access for everyone gets to put up a monument. they were worried that as a practical matter that if we run this case, cities would take down their 10 commandments monuments before the would open parks to other crazy religious monuments. on the other hand, the justices were very are rare as where the liberal justices, that once you call and arguably religious monument government speech, you make it much more amenable to establishment clause challenge. i think what is most interesting about the opinion in this case is how justice toledo tried to thread the needle -- how justice

alito tried to thread the needle. he tried to minimize the establishment clause exposure for that kind of monument. this shadow establishment clause green that is where this case is being fought out. for us, as a strategic question, we knew that we were losing the case going in and we could see what was going on. the question was how did we want to lose the case? that was driving our litigation strategy. our clients first choice was they love the idea of what 1000 flowers views and we will all expressed our religious views in the park. but if they could not get that, their second choice was losing in a way it would be helpful under the establishment clause, specifically losing with the ruling we actually got that any monument in the public park is going to be reasonably seen as conveying a governmental message as a kind of government speech. in that sense, to bring you to full closure, it was a huge

victory. we had just wanted and we will get them next time under the establishment clause. where this case will matter most is a one-off for free-speech purposes. we will not see something like this under the free-speech clause. monuments are different. that's the bottom line. where this case will matter is under the establishment clause and these display cases and possibly in the case next term, in a case that involves a religious monument, a christian cross, erected by a private party, the veterans of foreign wars, on government land. it will be very interesting to see how this case plays out and how successful justice alito was and planting an establishment clause defense. >> i want to ask you about your transition from private attorney to government attorney and the

different pressures and expectations that involves. more specifically, if you could talk about the voting rights case. during oral arguments, it seemed the corps was ready to declare the law unconstitutional, but it did not turn out that way. >> let me start by thanking the quality legal *" for posting this event. my transition was frankly pretty rough. it's an enormous privilege to represent the government of the united states. with that privilege comes certain responsibilities. when responsibility is the responsibility to not ever make any news. sorry to disappoint you, but i will try to avoid making news here today. anything i say is in my personal capacity. when i got to the department on january 21, it was an enormous time of transition in the

government in terms of the executive branch. but the solicitor general's office is different than other parts of the government. one thing that is different is the structure of the office. i am one of the deputies. there are three others who know a lot more about the supreme court than i do. then there is the solicitor general. that's different than the office of legal counsel in which all the deputies are political and a change from one administration to the next. there is a lot of continuity in our office and a great premium placed on stability and the positions we take from one administration to the next. that creates no amount -- and untold amount of frustration on the part of activists in the party and otherwise. but it serves the government quite well because, after all, we are not simply the administration's lawyer, we are the government of the united states lawyer.

we defense lot -- we defend of laws of congress enacted into law. tdk @ @ @ @ @ @ @ @ @ @ @ man a violation. in this case, i can only think of one other example in memory in which the government has come in and said yes, there was a fourth amendment violation. what we argued in that case was that the girls rights had been violated, but there was a qualified immunity defense available to those officials and ultimately that is what the supreme court concluded eight-

one. for me, it has been an enormous personal change. when i did cases before coming into the government, i basically did students with -- i basically did cases with one of my students. one of them spent a long time working on hamdan with me. she was writing drafts of race and so on. it was a ragtag group of people. i was doing the table of authorities and contents myself and things like that. i then come to our office, which is amazing, their 69 attorneys and four deputies and a staff of about 20 paralegals and assistance in the print shop and so on. the quality of the work product is breathtaking. my first weekend there, i got an assignment which was very complicated. it was high sensitivity and i said to one of the assistance,

can you look at this. on monday, i got a 24-space so -- a 24-page single spaced memo that was far better than anything i could have written. they do this with a budget of $10.4 million for the entire year. we participate in about 50 supreme court cases and review every decision made in the united states by the government. there is an enormous amount of work done all for that amount of money. when i was doing cases privately last year, i was involved in a case where one side spent $10 million on just one case. we do that in our office for the entire year. it is quite remarkable. in your opening remarks, you spoke of the timing. when i was teaching here, i had the ability to think big thoughts or small thoughts as they may be. then have the time to practice arguments. i practiced hamdan 15 times.

when i got to the government, by dna argument which was on march 2, i think i was able to read the brief one week before the argument. i had the customary two moots in the office right after i got to read the briefs. it's a very different pace and its remarkable how quickly briefed get britain and europe there are giving. it's nothing like i ever thought before i got n. maybe i will do the voting rights in the next segment, but i want to talk about the difference in transitions between being a private litigant, particularly one going up against the government and then being on the other side. i look at the gentleman to my

left only for geographic purposes here, greg coleman, and i watch what you did and i had enormous respect for how you conduct yourself in the litigation throughout this. i know what it is like to be up against the government and your client sometimes, i'm sure this happens to you, your clients are upset you are taking these cases and your family is upset you are devoting all these times -- all this time to cases where there may be no money involved and the media is upset. these are all things i've dealt with and i'm sure you had some of these experiences. what you do is perform a valuable service in making us more honest as government officials. i think it is enormously powerful, this great thing about our country, that we allow private litigants, little utility districts, to come in and challenge the most powerful people in government. i remember when been judge

roberts was at his confirmation hearing to be the chief justice, he said the great thing about the supreme court is on the one side of the court room you have a little guy -- you may have a big corporation with all law firms and lawyers on one side and the other you have none of that. you just have a little guy with an argument. if the little guy has a good argument, then, judge roberts says, in the supreme court, they can win. >> i almost need to say nothing more except to turn it over to you and ask you to talk about the two cases you argued which were scheduled within one week of each other. how did you prepare for those and what the think they stand for? >> thank you for having me and i appreciate the opportunity.

if i can hold back my welling up from the complement. [laughter] he speaks as one who knows. he has shown that most of graciousness in all he has done in my interactions with him and it has been a pleasure to get to know him better through these cases. you asked about preparing for two arguments within two weeks of each other. it's not a pretty sight. we have attempted to see if we can arrange to get them one month apart, but that was not going to happen. the clerk's office had other things to do, so essentially we decided to start early. we began the mooting process in march. i had done both cases before the first of april. duke university was

extraordinarily gracious in having us down and allowing us to moot cases before a panel of profs. georgetown was extraordinarily gracious in allowing us to come here to moot both cases. i moved up from a suites hotel just after the 10th of april and bid farewell to my family and holed up in a hotel and sat in the hotel room and read. when we had moots, we would do that for half a day and then we would go over the notes and keep going. we tried to keep going. i was here for more than 2 1/2 weeks, hardly seeing the light of day except to come out and go do moots. it was a difficult process and not one i encourage others to do. but we had to do it to get to the cases. >> which hotel?

[laughter] >> i stayed at a place called the virginian suites. it's across the river near the eulogy memorial. -- near the iwo jima memorial. it did fine for us. we had a good time. my colleague said something that was important. it was not by design that we had two cases come up in the same year and not by design we had two cases that involve raise issues which does create emotional context. it's interesting to see people's reactions. some people have very strong reactions. we have tried throughout process to keep a dialogue going about both of these cases. obviously, i feel the position we took was the right one.

we are extremely happy that we won. this section 5 thing is something we have struggled with for quite some time. the remedy the court gave was a remedy we had been pushing for. many commentators have asked if we were disappointed we did not get section 5 of the voting rights act struck down. the answer is no. yes, we ask for it and the argument is right, but this is the first case the supreme court has had in quite some time where any part of section 5 or the apparatus surrounding it has been challenged. for years ago, nobody was talking about section 5 or whether its application to various parts of the country might be unfair. people were talking about the now. commentators on both sides of the philosophical i'll have been

suggesting congress ought to rethink some of what it did in 2006 and maybe it should make some changes. the idea of opening up the statute to allow bailouts, which frankly have not been permitted, really since the 1980's, is a really good thing. it allows political subdivisions to go before the department justice and ultimately the jet -- and ultimately the district court here and say we have been committed to living up to our obligation under the voting rights act for 10 years or more. we don't have any violations and one has accused of discrimination. nobody has objected to our pre- clearance submissions. we have done all that has been asked, so let us out. the interpretation that had been given the act is, for nearly all political subdivisions, is you are just not eligible, so go

away. the court's opinion allows the process to go forward and i think that's a good thing because it encourages small political subdivisions like school boards and utility districts and small cities in others to say this is meaningful and we have something we can work toward. we can show we have lived up to our obligations and at the end of the day, there is some reward for us and that is the federal government will recognize we have lived up to our obligations and we can attain a bailout and move on down the road. so i view this opinion as a good development. i also think all to believe that it's a warning shot to congress and the department, if the system does not work in these entities cannot bailout four or five years down the road, we might take another look at the constitutional issues that have been raised, but for the time

being, let's see how this works with a full and effective bailout. . >> first, let me thank you tony and legal times for having me again. the last time i was here, i represented a group of texas peanut farmers whose crops had died by a pesticide that had

been improperly tested and warned against. and the pesticide maker brought the case to the support arguing that farmers -- to the supreme court arguing that farmers could not claim negligence in the warnings for their products. we prevailed in that case. that case really thrust me with itingly or not into this whole emmings that was fought out in this term. altria v. good, which i argued for the persons argue against it. argue that the controlling could not preempt state enforces efforts. wyeth was a case -- all of these cases i got into after

sir was granted. wyeth was one i got called and asked whether i'd be interested in helping out diane levine. she came into my office and we met. it was an extraordinary meeting. i don't want to go into all of it because of attorney-client privilege issues. but one thing that was really striking was the sense in which she still viewed the case as about her and i tried gently to suggest to her that now that the case is in the supreme court, it was no longer just about her and that she needed to be a spokesperson for all persons who had been injured by drugs, that had been negligently warned, and that i, as her advocate, had the responsibility to represent all of those people that were similarly situated to her. and that created a very awkward moment in the first meeting between an attorney and a client, because up until then with the trial and the appeal and the state supreme court, she knew that it was about her

claim and whether or not she was going to be@@@@@@@@ @ @ one-armed person to live a life, to refit her car so that she could drive safely, and to do things that would enable her to be above what, in essence, was a sub sis answer the level where she had been con tined after losing her career as a musician. i felt very deeply the responsibility to do the best i could for her and i think those

who helped me with the case felt that responsibility keenly as well. the court rejected the claim in preemption that the industry -- the pharmaceutical industry had argued for a very broad preemption principle that whenever the f.d.a. approves a drug level that would preempt a state law failure to warn claim. for decades, the food and drug administration had essentially and tacitly taken the position that these state law claims provided information that facilitating the government's regulatory mission of ensuring safe use of drugs and that imposed on the manufacturer the duty to ensure that their labels were up to date with the most recent information. the bush administration had changed that view. and in a rather radical position, which i think the bush administration overreached, argued that the

f.d.a.'s approval of the drug label negated and preempted the rights of people to bring claims for negligence and the drug company's failure to warn. so there was a special, you know, difficulty, as both -- all of the folks up here can attest. when you go up against the government, it is one thing. when you go up against the government with industry and changing position, there's a special dynamic at play. we were quite concerned because the government had never lost a case on implied preemption in which it asserted that there was preemption through a governmental action. so looking forward, one of the things i think will be very interesting is to see to what extent the obama administration in carefully reassessing the preemption position taken by

the bush administration will hew to the line that the bush administration took or to reassess and evaluate in light of the changed circumstances, changed policies, how far a preemption should properly go. there's no doubt that there is room for federal sprem sy. when i was in a case i argued, one of the main cases, united states v. law, there also needs to be an appropriate balance in ensuring that there are mechanisms for recommend dig where appropriate and where there's a proper balancing of the role that the federal government ought to take in displacing in court and state laws and principles. >> ok. well, we'll go back to neal and to greg. and a general discussion about the voting rights case,

perhaps. and the firefighters case, if you like. but, neal, greg was saying that this decision was sort of a challenge to congress and to the justice department, and i just wondered what you take from the case, and also, the point that both of you can ards about the oral amplingt it really did appear to many people that the court was going deal with the constitutionality issue and the oral argument. and yet they stepped back, and eight justices joined in an opinion that was really quite critical of the voting rights act but didn't quite pull the trigger. i think that still has a lot of people mystified. what are your thoughts? >> well, one of the remarkable things i think about chief justice voting rights decision is it aloud -- you heard greg declare victory, the attorney general right after the decision, also praised the

ruling. it was remarkable act in which all sides are kind of in agreement that the decision was wise and wonderful. and you know, i think that the factors behind that decision are probably a couple of things going into the mix. one is, as we looked at the indication, we're coming off of an extraordinary narly powerful court of appeals opinion and an extensive record in congress. i think it was 21 different hearings over 10 months with something like 16,000 pages of evidence documented, the need for the voting rights act. i think that -- sure, there were lots of tough questions and oral argument, which i think we both appreciated as advocates, to hear what the court's concerns were. but at the end of the day, one thing that might have happened is simply that that extensive record put to -- when put in front of the court really put a kind of concern in their minds

about judicial activism and about really should they reach that ultimate step? it would be really something extraordinary, i think, to strike down the voting rights act, which has been kind of a modern pillar of legal landscape for 40 years. that having been said, i think many people were surprised that the statutory bailout decision was the way in which the court dealt with this. i think that's a fairly tough argument to get to from the text of the statute. i think one of the interesting things that people will be debating and talking about in the years to come is really what is the appropriate model for judging. here you have chief justice roberts' model, which i think one could think of in terms of chief justice marshall. or you can think about it in terms of bill brennan, cobbling together majorities of people for positions that don't -- that aren't always intuitively

obvious as a legal matter. but in some sense, have this real underbelly of pragmatism and politics in the best sense of the word, in terms of making people of all sides and all persuasions come together and celebrate the decision. and there are some costs to that, of course. a cost in terms of fidelity to the statutory text and a precedent as well, but there's a multimember of court. maybe a real strong case to be made for it. on the other hand, you could say, well, there's the view of the true intellectual, the frankfurter, or the then judge rehnquist -- justice rehnquist, writing these lone decents in the 1970's, which ultimately become in many cases the law of the land. there justice thomas i think is really staking out a bit of that territory and not being afraid to be the lone decenter in the voting rights act case or in the trip search case. it's unclear to me which is the

right way to be. but i do think that that is a really powerful question that is set up by the voting lineups and the opinions written in these case. but i think the very interesting thing about chief justice roberts' decision is that it does allow everyone to come away feeling very pleased. >> one thing i've never understood since the moment that the decision came out is some of the commentators have said, well, that statutory interpretation just doesn't make any sense. my friend and former colleague heather wrote a blog saying i must be a mad genius for getting them to go along with that. neal is correct. the statutory text does not seem to apply. but there's a series of cases going back into the 1970's where the court said, that limitation on the definition of political subdivision doesn't

apply because it would too limit the act. so in case after case, that definition was set aside in favor of a broader definition. so our argument was simply, well, there's no reason here. every other provision in the act except for one has used the broader definition and not the narrower definition. so you ought to do it. tony, you asked about whether the court really was stepping back. there's another way of looking at that, and that is my experience is that most of the justices have already pretty much made up their minds before they get into oral argument. and there's some question in my mind whether the commentators are correct in suggesting they got scared off after oral argument or whether they had already pretty much decided the way they were going to go and way they were going to go and simply felt free to use oral argument to plum the depths of a variety of arguments,

including the constitutional argument, even though they already decided that that's not the way that they wanted to go. >> can i just jump in? i wrote a brief in the case on behalf of some texas districts. we were on neal's side of the case rather than greg's. i just want to say these two and the naacp lawyer who argued did a terrific job at the argument. it was one of those cases, a landmark case, where all of the advocates did an outstanding job. but to me, the case came to this kind of basic met that level common sense. you've got a utility district that had not any evident history of doing anything wrong and they, you know, were simply trying to get out from the -- what they perceived to be the structures of preclearance and there was a common sense to that. and maybe this was case collection, greg, been approached by the right client

at the right time. it was at that level that i thought the government's side, our time, had a hard time persuading. and it goes further to pam's point about supreme court advocacy that the advocacy proceeds at a number of different levels. there's a meta-level in which your case has to have a certain level of common sense it to. you have to find audio way to communicate and transmit ideas at all levels of details from mid-level theory all the way down to the details to seal up a way to get to five votes. the cases we've been talking about here, i think a loss can be attributed in some level to not having all those different pieces fit together in the proper way, because i was on the side that thought that the statutory reading was a bit of a stretch. but the level of common sense, there was obviously a view that

these small districts ought to have an opportunity to be free of the voting rights act. >> just a word about the argument in that case, which i found really interesting. what i do see is something of a disjunction between the argument and the final opinion of that case. i'm very intrigued by greg's suggestion that maybe the justices really knew what was going on before they got to argument, because otherwise i was actually a little bit buzzled by the tone of argument. and the chief justice's tone in particular. because i thought if he was trying to sort of woo justice kennedy, bring justice kennedy fully onboard for invalidating the voting rights act, to do that, i thought, you would have to persuade justice kennedy that you could do it in a way that was actually respectful of the act, that respected what it had done, what it had achieved, what it meant to this country. and that was not the chief justice's tone and argument at all. and so i almost had thought

that his tone was somewhat counterproductive and that it might have cost him justice kennedy's vote. but another way of thinking about it is maybe he already knew how this was coming out and it didn't really matter and this was almost his chance to, you know, a little catharsis. up to me, we'd get rid of this thing. and i'm just going to vent about that for a few minutes. because i was very surprised by his vote. i think he is a very, very gifted -- as neal said, politics in the best sense of it. a good politician on the court. very good tactician. brings people together when he has to. and i did think his tone in that argument was more divisive than political. in the good sense. and that it might have given people cold feet about what this would look like if they now start the voting rights act. it would make a lot more sense if it was a done deal going into argument. >> if i could say a word about that, because i've read these things about tone. something in some magazine, the

new yorker, i think it was about the chief's tone and argument in that case. in standing five, six feet away from him, i didn't perceive that at all. i did not see a hostile tone. i found the typical chief kind of, you know, get to the heart of the thing. but i never felt hostility to the act in the question. but i do know that other folks have. and it's very interesting. i don't know if there's something about the dynamics of that courtroom that make it different, the kind of very close interaction between advocate and justice or not. but just being so close there, i didn't feel it and trust me, i'm perfectly used to feeling it in other arguments. as to greg's point about the possibility of the justices knowing ahead of time. i guess i think that's probably unlikely on the notion that it would be hard for them to all get information about everything pre-argument, about the way the other justices were

thinking. i'm not saying it's impossible. but in general, my guess is h[captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> it would be hard to do this and if this was the case, i have no questions, the other gentleman on my side -- he got two questions and david had a couple as well. this strikes me as an unusual circumstance if they thought that they were going in for the statutory bailout, that there would be few questions on this particular matter. question -- i think was it justice souter who asked greg, would you be happy with just -- with bailout and you wouldn't have to go all the way to the constitutional issue. when you said yes, you sort of gave them permission to have a

more -- to rule more -- in a more limited fashion. am i remembering that right? >> there was that question. i'm not remembering exactly who it was. it might have been the chief. i don't know if anybody remembers. but essentially it said if you went on bailout, are you clients going to be satisfied? and we told them yes. several commentators have suggested once we said that, it was over. our briefs, by the way, made that perfectly clear. and so it wasn't anything for moral argument that wasn't clear, shouldn't have been clear from our briefs. >> i was going to use that as a segue. and maybe it's an imperfect one. a question i want to ask generally about justice souter departing the court. will you miss it? are you glad?

what role do you think he played on the court? it's open to anybody. >> well i -- all my opinions before the court have been before justice souter. i'm going to miss him greatly. he had a way at the argument of asking a question in a way that he really conveyed wanting to know the answer to the question in a very deep, and insere way. he asked questions in a balanced tone with a question of curiosity, but they were questions of great sophistication and depth. and you avoided answering them at your pearl, because he was very quick to follow up if he thought you hadn't answered the question directly in the way that he thought an advocate should do. but i thought -- and i will always admire the civilty and

the tone and the decency that he brought to his role as a supreme court justice. i think that he has an understated manner about him. and is not out there. and so people probably who don't follow the court so closely will maybe not appreciate his many really incredible intellectual and judicial capabilities. i think the supreme court is going to miss him a tremendous amount. i think it's exciting that judge sotomeyer will be replacing him. she's going to bring totally newalties to the bench. but it's a shame that they couldn't have both served together, because i think it would have been a very interesting dynamic to watch the two of them at argument and to contend with issues. >> one of the kind of really

interesting things about justice souter is how funny he is. it doesn't always come across on the bench. but there's a great story about him. he drives up to new hampshire every year in the summer to spend three months in his cabin. he stopped at a rest stop in massachusetts and a couple was following him and said the man says, hey, hey, hey, you're on the supreme court, right? and justice souter nods his head and says, yes, i. a and they talk about what it's like to be on the supreme court and so on. then the man serks wait a minute, i know you, you're justice breyer, right? and justice souter nods his head and doesn't want to embarrass this nice gentleman in front of his wife and so on. and they talk more about the court. and then the man says to the justice, he says, you know, justice, what is the best thing about being on the supreme court? and justice souter pauses for a second, and says, well, i think probably the best thing about being on the supreme court is the privilege of serving with

justice david souter. from my experience, there has not been a more incisive questioner in so many ways than justice souter. i remember when i was prepping the hamdan argument, one of the things we really wanted to do was get the court to have a line of questioning about habeas stripping and whether or not it was violated. we spent weeks trying to figure out how can we bait justice stevens into asking this line of questions. didn't really get justice stevens to do it at the argument. but justice souter really got that argument. and i've never really seen him in such powerful terms attacking the government on this whole suspension line of questioning. a three- or four-minute colloquy with paul clement. on the other side in the d.n.a. argument which i did in march,

there was a line of questioning i was really worried about getting. sure enough, justice souter was the one to launch that volley of questions. and his opinion in the d.n.a. case, i think, is a really moving opinion. it's a kind of ode to conservativism. it's worth everyone's study because it's a really interesting way of thinking about substantive process and about the need to go slow. that is not something that we have traditionally seen a lot of in the supreme court from both supposed right and left of the court. but justice souter is really staking that position out in that case. i think it will be one his great leg sis for the court. >> i also -- i will miss justice souter so much from watching the court and arguing in front of it now. it was an incredible incisive and dogged in his questioning. he grew as he stayed on the court more and more dogged and

persistent in his questioning. but always polite, always in a very decent way. always actually wanted an answer. it wasn't for show. he wanted to know what you would say. i did think in my case, in the summum case, he was the justice that was right on top of this intersection between free speech clause and the establishment cause, the one most up front in talking about it. i really felt -- i'm a little bit bitter because i felt we had a deal, where he was saying very nicely, pam, we're not ruling for you on your crazy free speech claim, but you come back here with the establishment clause and i will be here for you. at the end of the term, he disappears and i'm a little bit put out by that because i thought he really got it and we had an understanding. >> it's a few days too late to get him back. >> one thing i'd like to say about justice souter is when i was clerking, since i knew i wasn't going to be staying in washington, i tried to come downstairs for every oral act

whether it was a case i -- oral argument. and one of the case justice souter -- and you've already heard this from the other panelists. his questions are very insightful, incitive. he does have a nice tone about him. and one of the problems that advocates had is that questions sound so nice that they wanted to agree. wouldn't your argument be better -- and they'd say yes. and doubtedly to this. and they'd say yes. and then he'd say, therefore don't you lose because of this? and it's that old picture of somebody getting painted into a corner. one of the things i went back to texas with, which was a strong feeling that when you go

in front of somebody like justice souter, you can't let yourself be brought over by a friendly smile and a nice tone. you need to be very clear about what you agree with and what you disagree with. in fact, this term, you know, i think justice souter early in the firefighter case asked me a couple questions. i said, well, no, i disagree with that, justice souter, because i have such respect for his mental powers and where he goes with the questions. you just have to know where he's going, where you're willing to go, and where you need to draw a stop. and in the firefighters case, you know, he asked the one question really that got reported in the media, which is the question what is the city supposed to do? you're damned if you do, and you're damned if you don't, which got to the heart of, you know, this intersection because disparate impact and disparate

treatment in title seven. how do you define a rule that allows these employees to be fairly treated but doesn't unfairly prejudice the employer, the city at the same time? and he was looking for that. for that test. something that would allow him to do that. >> and did the court come up with the right answer in your view? >> yes, they did. [laughter] >> but was it a full loaf? >> this strong base is an evidence test, that was the test that we put forward this our brief. in many ways, we had told the clients, you know, to expect it to speak out on some tests. we weren't sure whether the court would say strict scrutiny applies on the protection claim

and off you go on remand, that the court said the strong basis and evidence test would be the test for title seven and then ruled as a matter of law that the city was liable under title seven. i think was something we hadn't necessarily thought was a strong expectation on our part. i'm not sure why the court wenlt that far, but i think it wanted to make a clear statement in terms of where the law was. maybe that they wanted to make a statement with respect to the individual petitioners who had been waiting for promotions for six years. >> well, before we go to the audience for some questions, i just want to pick up on a few things. neal was mentioning earlier the

idea that this -- that roberts was sort of a pragmatic leader and calling together coalitions. a lot of the analyses after the term, more that the roberts court this year was more incremental and more interested in smaller steps and compromise, perhaps. is that a theme that all of you agree with or not? >> i'll jump in. i think i'm not fully onboard with that account yet. part of it is, we just don't have enough information yet. in a few more terms, we'll have a much fuller picture. when the papers come out, we'll obviously know a lot more about what really happened this term. to my eye, there's another equally plausible account for a lot of the decisions this term, which is that the chief justice is going just as far to the right and he's going there just as fast as justice kennedy is

prepared to go along with them. and at least to my mind, it seems at least fairly clear that in some of the court's decisions, like the herring case, the very early exclusionary rule decision from the beginning of this term, that there are four votes including the chief justice for really getting rid of the exclusionary rule pretty much altogether, and that is justice kennedy was sort of holding them back, was not quite there with them. again, with the voting rights act case, it's very hard to tell what really happened there. but my hunch, at least, based on prior opinions and argument and things like that is that it was probably justice kennedy who had the cold feet about invalidating the voting rights act altogether, which takes nothing away. i really want to be clear about this from the chief justice's ability to make the best of not quite having five votes for exactly where he would like to go and to nevertheless put together these opinions of very strong conservative principles and that will move the law perhaps more slowly than he's

prepared to. but i'm not quite ready yet to say that it's the chief justice setting an institutional integrity that's stopping the court from going any further. my guess is that it's really for want of a fifth vote and that it's justice kennedy who is still -- to the extend that is incremental, because it's still kennedy's court, not quite the chief justice's yet. >> it's certainly bne out by the statistics. justice kennedy was in the majority of 18 of them. by far pretty clearly the largest number. the coalitions that formed around most of them were the predictable ones. but there were some outlier cases, four or five where justice scalia might peel off and form the fifth vote. or justice thomas might form the fifth vote. but i think that -- i agree

with some of what pam says. i also think that@@@@@@@@@ @ @ one thing that is in arresting to be watching is, the extent to which the access forms with justice kennedy and samuel alito. there are a number of separate opinions, that may be in the middle of the road that each of them joined, and there may be a very interesting dynamic going on. samuel alito has a very quiet, competent way about him. his questions and his argument are superb and it seems to me that there is an interesting thing to watch. interesting to watch this term, both for his incipient alliance with justice kennedy and

because i saw him in a lot of case this term slitting off from the chief justice and moving right to the chief justice. actually voting differently in a few cases. i think he has in the criminal context where i spend a lot of my time, he is probably of all of the justices, he's the most interested in the criminal cases. he has the most background. he's very interested in criminal procedure cases, which the rest of them really are not. and it's giving him a lot of authority in that area. i agree with dave. he writes very, very good careful, solid opinions in that area. i think he's really a force to be reckoned with. i think this term saw him coming out a little bit in that area as well as some others. >> i think about the chief not necessarily controlling everything is a good one. two years ago, it was a very divided court with a lot of 5-4

decisions. last year, not so much. everybody was saying, the chief has iranianed everybody in and he's now driving -- has now reined everybody in. this is more 5-4 decisions with kennedy on them. one little anecdote i'll share is during the firefighters argument, justice breyer started asking me a series of hypotheticals. and i do mean a series. not one. but multiple ones in the same question. i said, well, justice breyer, those are justice kennedy's hypotheticals from his con insurgents in paris. he said, well, precisely. which he obviously was aiming towards justice kennedy. in terms of his questioning. when i attended the fifth circuit judicial conference a couple of weeks after that when

justice scalia came down and gave a speech, during his presentation and the question and answer session, somebody asked him about that, asked him about the number of 5-4's, and was he struck at how obviously people are playing to justice kennedy's vote during oral argument. and he acknowledged that it was true and even had some discussion of his questioning from the richie case. and kind of tried to be humorous about it. say, you know, there are several others up there on the bench. it doesn't have to be all about justice kennedy. but i think that some people going in on these cases are counting up the votes and thinking that maybe it is. >> ok. i'd like to open it up to questions. there are microphones on either

side and some roaming microphones as well. >> hello. i'd like to ask the panel about the gross case. it seemed that the court came down with a decision that wasn't briefed or argued and had fairly far-reached consequences, or at least potentially in changing how the ajacket is construed and litigated. just wondered what the panel thought. >> it is pretty -- >> if you could summarize what the case was.

>> it was an age discrimination act and we see in a lot of title 7 cases where you have mixed motives and the argument is, you fired me because of my race and the employer says, no, i fired you because you're an embezzler. the case has to go to trial. and there's a series of questions that are put to the jury that emphasize to the juries that as long as they feel that race was in fact a substantial factor, that they still have to find liability. even if maybe there's something to the embezzler point. and congress had amended title 7 to include and recognize -- and that wasn't done with respect to other forms of -- or other acts that the outlaw

discrimination, including the age discrimination employment act. and the court -- an opinion that surprised quite a few people, actually, said that because it's not in adea, and we have some questions about whether we were right in the first place when we read it into title 7 before the act, that you're simply going to say we're not going to extend it to other acts. in the firefighters' case, it was suggested that this makes the case. we had held it off like the plague. but it was quite a shock. i think far-reaching. i'm not sure if people were really expecting it. oral argument clearly was hostile towards mixed motives, but before that i'm not sure people were really strongly thinking the court would go that way.

>> what might you say was an underrated case of the term, something that's going to have long-ranging impact that's not really getting a lot of play in the media? >> the case about the student against the attorney general john ashcroft and the f.b.i. director, robert mulr, about the juice of discriminatory motives in bringing about post-9/11 decision making. and saying those suits could not be brought. the court applied a pleading standard, a rule of pleading what can be in a complaint, what needs to be in a complaint, to survive a motion to dismuss. they took it from the antitrust area and imported it from the area of official immunity. it will probably be the single-most cited case excite

wyeth v. levine. i say that because there were tens of thousands of drug cases out there. it's going to be cited a lot in kind of determining whether or not the most basic requisites of pleading a complaint have changed in light of standing where the court announced. that's my view of the sleeper. >> actually, i agree with dave in terms of the practical import of the cases. another case i think didn't get enough attention is the monteo case in which the court -- it's a criminal case about the consequences of evoking sixth amendment right to counsel. the court, even though nobody asked it to, the state had not asked for this, used it as an occasion to overrule michigan v. jackson, was a case construed invocation in a very protective way. it's not the outcome that i think the really so significant.

it's that the court on its own, again, without the state having asked for this decircumstances dtsed, you know, let's just get rid of michigan versus jackson. it's not that big a deal. i think that to me, at least, indicates that this is a court that -- at least in some areas is going to move very aggressively on criminal procedure cases, criminal cases, and will be prepared to overrule and -- prior precedent and gets where it wants to go. >> i had no idea monteo would come up in this discussion. one of my first cases i ever argued was a case called texas v. cobb. we had asked the court at that time to overrule michigan v. jackson. we could not get the assistant general's office to go along with it at that point. but i'm told they have much smarter people there now. [laughter] >> so we have so much to blame you for, greg. >> we did get a three-judge

concurrence from kennedy saying, i just don't see how michigan-jackson adds anything to the mix. adding to your comment, though, of course, one to me the most amazing developments in the term, which is the first term in i'm not sure how many where the court didn't actually finish its work. set the hillary movie case for reargument next term. in scont with monte owe and your comment there, part of the reason appears to be there's some number of people in the court who are wondering if they should overrule austin or parts of mcconnell. and that itself is a pretty substantial move on the court's part. >> yes? wait for a microphone. >> thank you.

i'm chief council for the lawyers committee under civil rights under law. we opposed greg on two major cases and i would like to acknowledge, his very skillful advocacy. fine results. one case that struck me the most the case that overruled the prior precedents on search of apartments and automobiles by justice scalia. is that the liberal side of the justice or is civil liberty side or is there any difference between those two concepts? >> i have thought for several years, we're seeing something very interesting. i find this endlessly fascinating. it's like there are two courts when it comes to criminal procedure. there's the scalia court, which is triggered when there's an originalist argument to be made. you see it in the sentencing cases. you see it in the confrontation cases. and you see it in gant, which

is the case overruling prior precedent, the belting case. well, the majority says it's not joseph ruling. but reconfiguring in a way that really narrows it. and in these cases, justice scalia and justice thomas really to their credit, there's an originalist argument there, a serious act it takes to a place that might not be their preferred political position, but they follow it along and you get this very ub usual voting lineup where you have this kind of -- you have these two very conservative justices on the pro-defendant's side and you have some justices people think of as many liberal but very concerned about the pragmatic impact of these decisions in decent. i think gant just falls right in that category of cases. and really, to the credit of these justices, they will follow this originalist argument when it points them in that direction in these cases and it's one of the reasons why as the court has grown, i think over the last 10, 20 years, more conservative, the criminal

defense bar, there have still been real openings for that bar in front of this court. >> melinda diaz could end up being a hugely important case for the practicalities of how criminal cases unfold. 5-4 when a lab examiner has done scientific analysis in a case. produces a report that's used by the prosecution. the defense has a confrontation clause right to cross-examination the lab examiner who did the actual lab work. historically, lab work in this country has not always been done by the person who testifies. in fact, the f.b.i. for decades had a tradition of somebody who knew something about science doing the work and then a very handsome typically white male agent would go testify. and lots of people were convicted, even though that agent didn't know anything about science and had no

bachelor's degree or masters degree or anything. so one of the interesting things about this diaz decision, thankfully that practice has been changing in the f.b.i. but some of the state and locals have not yet caught up to these more modern practice and diaz really throws down the gauntlet to the prosecution to ensure that there is absolute fairness in providing a mechanism for defendants to cross-examination the actual people who do the actual work in the science lab. >> that was scalia. >> that was the scalia argument. scalia wrote the majority in that. >> any other questions? >> with justice sotomeyer possibly becoming justice, do you anticipate advocates will have to change their litigation and argument strategies?

and how?@@@@@@@@@ @ @ @ @ @ @ @ i did some years ago, about four or five years ago, and my experience was that she was well prepared, she has dead on, insightful questions and she was -- she was not going to allow questions to be avoided in any way. i do not see a big change. other analysts may know some ideas were her ideas may be different than justice souter. sotomayor will have some different views on punitive damages than justice souter had. but i'm not really aware of a lot of different areas where there will be many differences.

>> i would say that it would be unusual for a highly skilled advocate to try to change an argument just because of a new member of the court coming on. it's hard enough to come up with a really good argument that enables you to answer the hard questions that come in from whoever -- from whatever the source. what i think will be interesting to watch is the extent to which the second circuit's docket, which has got a very heavy business component to it, a very heavy finance component, will end up causing justice sotomayor to look at the long ways that may be different from justice souter simply because they have different backgrounds from their legal work that they bring to bear to the supreme court's problems. and so i would expect to see some key departures start to emerge within the first couple of years of her time on the court. and that may well end up

affecting how certain arguments get postured. i don't know that it would be a stylistic thing so much as it would be just -- we start to see where she fits within various alignments on certain areas. >> one thing that i think i'll be watching for, and it goes to david's point about experience, unlike justice souter, judge sotomayor has been a prosecutor for a number of years and it will be interesting to see whether that will influence the direction the court takes in some of these criminal procedure and criminal law matters. i don't anticipate -- my guess is much difference in terms of the overall tenor of the arguments. i know there's been some stuff in the reporting about her being really tough at arguments and so on. i'ved a the privilege of sending clerks to her almost every year for several years. they uniformly rave about her skill in argument, her hard working, just how hard she works to get it right.

and i think that she's not going to bring a change, necessarily. she's not going to change to the type of arguments that we're all accustomed to. i think in a few substantive areas of which criminal law is one, we might see some changes. >> i'd say also justice alito has spoken about how hard it is to get a word in edge wise now during argument. really have to jump in even if you're taking a tack that's not on point with the last justice who asked a question. and chief justice roberts, the fourth circuit just a few weeks ago talked about how he's been thinking that the supreme court really needs to notch it back a little bit in terms of the intensity of questioning. unfortunately, i think -- well, we'll see how justice sotomayor handles that, but my impression is that she's not -- she won't have any trouble jumping in to argument and she isn't going to decrease the intensity level.

at least that's the impression people have of her. yes? >> the topic was broached about whether there'd been any changes when judge sotomayor becomes justice sotomayor. i believe there will be one topic that's drassically different. there's a series of case over the turn of the last century called the insular cases in which the supreme court held that basically, particularly puerto rico, was not incorporated to the u.s. so therefore, people of puerto rican background didn't have certain rights that other people who are born in the mainland of the united states would have. and because of that doctrine, right now, they have statutory citizens. they are not necessarily natural born citizens in that if congress were to aend in statute which grants citizenships, anyone born after that would no longer be a citizen of the u.s. so that's a very controversial

doctrine. and i guess appropriate now that the doctrine was developed about puerto rico and now we're getting a person of puerto rican background to be on the supreme court. maybe that would rise the status of puerto rico might be affected by her decisions. i wanted to see your thoughts about the insular cases. >> i have no particular belief that just because she's from puerto rico, she would approach a case a certain way. i would say the insular cases are now not just about puerto rico, but about a whole big difficult legal question, which is the applicability of the constitutional provisions extraterritorially. i would imagine any justice would approach it with that in mind without the specific narrow question of the origins of one of the cases -- obviously the insular cases that wasn't puerto rico. it was if philippines and other places as well. regardless of the answer, i would imagine it's not going to really be determined by her

background and interest in puerto rico. >> i think we're about to close. i just thought i would ask -- >> i had one more question i wanted to ask. >> ok. >> in this case, the strip search case, the supreme court basically -- in the strip search -- in the strip search case, the supreme court basically held -- unreachable search and ss -- see sure. the first question is isn't that kind of contradictory? the second part of that question would be what the supreme court is basically saying is that it's more a fundamental right than the right of freedom of speech?

>> i don't think it would come out that way. i don't think the decisions are contradictory, though. i thought this most recent decision -- it just had a lot to do with sort of setting -- you know, the court giving plenty of discretion to schools and school administrators, but setting some very outer bound riss beyond which a school really can't go. i thought the facts of this case were shocking enough that it lent itself to that kind of decision. i would not have anticipated the 8-1 lineup on this case on the underlying fourth amendment issue. i think it was made a little bit easier for the court by the fact that they had a very strong -- as neal said, the government's brief said it violated the fourth amendment, but there was a strong case for qualified immunity in this case. i think that made the court probably a little more comfortable than it might otherwise have been with finding the underlying fourth

amendment violation. i thought it was drawn there a little bit by the u.s. brief. i still wouldn't have seen the 8-1 coming. i have questions about whether argument in that case might have affected the outcome as well. i think the argument in that case was widely considered at the time and certainly by the time justice ginsburg was talking about it, argument in that case was pretty widely considered a bit of a debacle for the court. there's a real sense, at least from where i was sitting, that some of the justices were not taking this claim remotely serious. they were telling jokes about it. and that that put people off. i think it embarrassed the court. and i think it may have ended up in a very positive way, to spin this in a much more positive way, helping to educate some of the justices about -- i think these fourth amendment cases are hard for them. they really do either explicitly or implicitly have to figure out something about social expectations of privacy. where is this country in terms

of its expectations of privacy in i think because that argument became so controversial in that case, the justices probably heard more from the people in their circles than they otherwise might have about how people did feel about the privacy of this girl's body. and that they may well have been educated by the whole process. i think the argument in this case was a bit of a wild card. it may help to explain the lob sided nature of the vote in that case. but i'm not sure i see it as inconsistent with their other school cases. >> it was also extraordinary that as you were alluding to that justice ginsburg made public comments about the oral argument while the case was still pending. she said her male colleagues didn't get it. how embarrassing. -- how embargs a strip search was for a teenage girl. we just have a minute or two. i just thought we could maybe go down the line and ask for your thoughts about next term, either in terms of how judge

sotomayor may change things or a case or two that you're watching. >> well, i'm watching this salazar v. bono case to see how the sum money case -- summum case plays out. there are two big cases on the docket right now. a case from maryland which raises cases about the fifth amendment miranda rule, invocation of the fifth amendment right to counsel and how protective that rule will be. there's another miranda case about how explicit the warnings you get under miranda have to be in terms of explaining the right to have counsel present at questioning itself. and my guess is that both cases will be decided on fairly narrow grounds. but they also are the first opportunity for the chief justice and justice alito to really weigh in on how they

feel about miranda. and although i think the vetting is pretty solid, since the dickerson case, which reaffirmed miranda -- you know, miranda is pretty much on strong footing. those justices weren't there when dickerson was decided, when miranda was reaffirmed. people also thought the exclusionary rule was on pretty strong footing until they joined the court. so i am interested to see whether either of those cases will provoke any separate writing by those justices that will give us the earliest read on where they are on miranda. >> next term is shaping up to be enormously interesting. the constitutionality of peace coming up. the things i'm watching most closely are the united states v. stevens, a case about a congressional statute that's been struck down, that prohibits the commercial sale of these really horrific videos

about cruelty to animals. about cruelty to animals. .no carrierringconnect 1200 >> in addition to some of these once, neal should one i am really interested in. i think the court tends to say very interesting things when it gets into these questions that deal with the structure of government. i think this will be one of the more interesting ones for five or six years. >> two cases i am involved in, i

will obviously be following closely. i think the next term will be an interesting turn from the perspective of having the court look closely at the aftermath of the financial crisis. not only do you have the pcab case, but you have the jones case which will have a profound defects potentially -- profound effect mutual funds, the allegations of investment advisers charging twice as much to regular folks then they do to institutional investors for virtually the same services. and then there is a case called merck vs. reynolds which will go into the inquiry notice test, all we're claims are made against companies for violations securities -- for violating securities laws.

they will focus on the aftermath of the financial crisis, and the court will find a couple of these historic statutes in the aftermath of this very large financial meltdown that we all have. institutionally, the court, my observation is that the justices will be taking quite some time to get a sense of their new member, and chief justice roberts will be on his fifth term. that will be a significant time. this combination of feeling each other out will play itself out both in the arguments and in the opinions. justice alito's very first opinion, justice scalia slammed him for relying on legislative history. welcome to the supreme court. it will be interesting to see what kind of

that opinion will be given. >> we thank the panelists and the audience, we will see next year. >> more on the supreme court's with justice stephen breyer and

justice o'connor. they looked at how judges are nominated. breyer was appointed by clinton, and o'connor by reagan. this is about one hour 15 minutes. >> i am here at the aspen institute, i am here to speak about justice and society. if you can silence or telephones and blackberries, it would be appreciated. the last 20 minutes of this program, will be reserved for questions and answer. if you can take yourself to the stationary microphone, with a

few statements this will help us to consider this in meeting all of the needs of our technicians. i want to introduce you to the moderator, his biography is on the back of the program. we are very happy to have him to moderate this session. >> among the people who tied for first among the people who do not need an introduction, is the former assistant justice, o'connor and justice breyer. i want to add one part to their biography for the theme of selecting justices. they have actually been selected twice.

she was among the first -- the last elected judges in arizona. justice breyer was a distinguished member of the office in boston. he was the last person not confirmed during the carter administration. and i do hope and i assume that we are talking about the judicial selection beyond the topic of the hour. the judicial selection for the united states supreme court. and i take it that -- we may need [unintelligible] this is no favorite -- he is now

a distinguished professor of law at georgetown university. for the purposes of this panel, the most relevant item on his reza made is that he was the assistant to a general in the first george w. bush administration, and it was suggested among many people that he was very important in selecting justices. president bush did not make any appointments during that term but i suspect that he may have weighed in, for these appointments with regard to the administration and what they had in mind, i am happy to be here and we will proceed in the older

where people are seated. justice o'connor and injustice -- then justice breyer and we will conclude. >> what would you like for us to start with? >> anything for judicial appointment, either at the state courts, especially west of the mississippi where they elect the judge, and the judicial elections by appointment, or the selection process, of the supreme court. >> we are watching the selection process work its way out as we speak, there is a vacancy on the supreme court with the retirement of justice david souter. and the selection of his replacement.

i understand that soon a hearing will begin for justice sotomayor. once a justice is confirmed, you do not see a lot of them, not much on television. we do not have cameras in the supreme court room and you will not see them. when i took the oath of office, for the supreme court, i took this in the supreme court chambers, and the president and mrs. reagan were there. that is the last time that they work -- this was conducted there. they bring into the white house for all of the television cameras. i believe that i was the last one. the election process includes input from the attorney general, by way of the

selection. i know that smith was the attorney general when i was elected. reagan indicated that he would want to put a qualified woman on the supreme court. attorneys mets began to give him names. there were not many female judges and there were not many republican female judges. so the list was very short at the department of justice. he put out a pitiful list, and there are was. i ended up on the court. but i think that president reagan was biking branch life and my own background was to his liking. -- liking ranch life and my own

background was to his liking. because the constitution says that the president will nominate with the advice of the senate. kobit most of the history of the court, they did not have a need for questioning. that began with felix's nomination. it has continued and is now a grilling process with gavel -- process with gavel-to-gavel coverage. this can be a learning process. when john roberts had his hearing, he was very articulate and knowledgeable, in this process.

these states have their choice of how to nominate judges. it was president andrew jackson who persuaded the states in georgia to elect the judges with the confirmation process. he was a populist. many of the states fell for his line, and began to elect their judges. there is some form of election, in 30 states today. at least 20 states have a partisan election of judges, with campaign contributions and television advertisements, and this is a very unfortunate way to select a judge. i am biased to the senate, i do

not think that this is a healthy way to select a justice. we will have more to say about this, but i do not want to take up too much time. >> i think one problem that we both see, is the problem of campaign contributions in the elections for judges. what kind of problem is this. thomas phillips went on to become the chief justice and he told me i would have to raise $4 million. this is a lot more now. this has changed and not for the better. to you think that you can get a fair trial, when they have

given $100,000 to this judge? that is a problem. we heard a very interesting conference, a judge from the state of texas, who does not like the system. they asked him why he contributes all of this money, and he says, that they tell me that this does not matter, and the judge can be fair. this is a question of perception. so then he asks this question. what you do, is you choose which candidates you believe is the best, and you give them money. and then he says, you give both candidates the money. why do you do this? exactly. the perception problem is a

serious problem, the court was venturing into this area, and the question was this. one judge received $3 million, from one individual in the corporation, this did not all go to him, but much of this went to a political action committee against his opponent. the question was, whether the due process that said that you should not deprive anyone of life or liberty or property without due process -- whether that was violated when he had a case where he received a large amount of money from -- from a party to the case. and we have this, 5-4.

this did violate the accord, and he could not -- this did violate the clause and he could not decide the case. the dissenting asked how to administer this and how it would work out in detail. many people have influence on this, how will you do this? the response of the majority was that they are not in charge, they just trace this out of bounds and they can see this went beyond the out of bounds. but beyond that there is much to be done. and the people who do this, who they believe should do this, are the states and the bar association and the state legislature, the courts, and all kinds of rules and regulations

that can be used, that will eliminate this kind of problem. we cannot do this. and you may say, why is this not important. life is filled with problems. and the judge began to talk about their problems. they said this was very serious because they want the judge to think that they are being taken seriously. why is this such a problem? i would say that the answer to this question, faces me and sandra every day. in front of us, every day, we see every person you can imagine, every race and religion and point of view.