results or discussions about oh, gee, we're missing a brain? >> we didn't. the only comment i made -- i remember and i'm not sure if i remember it, or i remember dr. jenkins talking about it, dr. jenkins commenting on the president being in town. and he hoped everything went well. >> so do you remember sort of exactly how you first heard what you were doing at the time, a dispatch came in? >> right. we were -- again, i may be telling you more than you want to hear. >> no, we want to hear it all. >> the other thing which is different -- we talked of how different things are. >> yes. >> right now as you know, there are mobile intensive care units, really paramedic-equipped vans, e.m.s.s who pick up ill patients they have direct radio with the hospitals. we know what's coming, we can

help direct their care before the patients get here. in '63, none of that existed. that all started in '69. dallas did have a sophisticated system for the time, but it consisted of some of the ambulances having radios which connect with the police dispatcher, and police dispatcher would then call the hospital and say, you know, x patients are coming. there was frequently some confusion in all that communication with several people. so a lot of times we got a call from a police dispatcher, which turned out to be false alarms or turned out to be false alarms or overstated. so that leads us to what -- that leads up to what happened then. one of the nurses came out and told dick delaney, richard delaney who was in charge of the emergency room that day that she had just got a call from the police dispatcher, and the president had been shot. and was on his way to the hospital. >> the president -- >> that was as i remember i want the president's been shot, he's

on his way to the hospital. the -- i mean the obvious question is, what do you do? well thing you do is you don't want to believe it. with all of the misinformation that happened in a situation like that, it was easy to say, yeah, must be wrong. i mean, it can't be right. but the other thing you do is start getting ready. so we -- the nurses paged the appropriate people to come help take care of an injured patient, and they paged the two surgery teams -- the rest of the surgery team on call. the chief resident who was ron jones who is now chief of surgery at baylor. >> yeah. anyone you can identify by name will be helpful. >> yeah. malcolm perry who is the attending on call that day. dr. tom shires who is the chief of surgery. he was actually in galveston giving a paper, but obviously the people in emergency room

aren't going to know that. but basically, they paged the whole resuscitation team. and we hoped it wasn't a -- we hoped very much it wasn't -- it was a false alarm. >> right. >> we also were -- there's always a risk that it's not a false alarm. it seemed like two or three minutes after we got the message that the door to the emergency room came open and a patient was rolled in. and that was governor connally, as a matter of fact. and the reason that governor connally was brought in first i believe was because he was sitting in the jump seat. >> they had to remove him before -- >> right. they had to get the governor out of the way and brought him in first. we looked at governor connally and he had a -- a large wound in the front of his chest. and he was actually unconscious from the abnormal breathing that results from that large wound. we knew he was hurt badly.

we figured we could treat him if that was all that was wrong and we knew it wasn't the president. it didn't occur to either delaney or i who it was. we were only interested in who it wasn't. and it was not the president. so we heaved this great sigh of relief and said, you know, maybe it's a secret service man, so we'll take care of him. we rolled him into trauma room two which is really the biggest trauma room. >> did that cause you to divide your team up in any sense? in terms of expertise. >> not really. parkland then and now is the contingency. i mean, there's a -- you start -- you have a team, but you have tremendous backup. so you can always get more help -- i guess nothing is always, but you can handle an immense amount of work when you need to. but delaney and i went into the room with him, and we knew the rest of the support is on the way. the way you treat a wound like that is you plug the hole.

basically when you breathe, air goes in here. when you have a hole this big, air goes in there. so you plug that hole, and you plug that hole and then the air starts going in the right way and the governor started waking up. the -- so about that time, another patient was rolled in to trauma room one. and delaney and i kind of looked at each other and i'm not sure we decided but basically we decided delaney would stay with the governor and i'd go about -- go see about the patient in the other room. that's how i ended up being in the president's room. >> and in that room, do you recall at that time who was there exactly when -- >> mrs. kennedy was kind of standing by the door. my recollection is there were two men in the room, and i assume they were the driver secret service people. they very rapidly stepped aside when we came in.

and -- >> did anybody -- did mrs. kennedy speak to you or any of the other people? >> i don't recall any spoken interchange. >> getting out of your way? >> yeah. they clearly saw we were coming in to take care of things, and mrs. kennedy as i recall stood by the door for a long time. and the two gentlemen -- i never saw them again, that i rec niltzed. >> from this point, probably you're going to need as much as you can to give us sort of specific descriptions that a medical professional would recognize. what you saw, how you approached the problem, who was doing what. >> ok. the -- the people that were there were -- that i remember and i'm sure there were others, were myself.

a nurse, diane bowen, i think, and two interns. marty white who's now -- well, head of the organ bank here in dallas. a lot of people still around. and an oral surgery resident whose name i don't remember right now. oral surgery intern. so that was the team. your job in a patient who's severely injured kind of goes in the steps of do what takes -- keeps each patient alive, then you go back and evaluate the injuries in more detail and make your long-term plan. first, you need a way to breathe second you have to be breathing and third your heart has to be pumping and fourth, head has got to be working, your nervous system has to work. your job is to see what's going of within the airways and breathing and see what's going won the circulation. then you look at neurological function. the -- usually one person kind

of takes charge and one team gets some i.v.'s going to get circuit -- to support circulation and the nurse gets them undress and keeps things going. that's what we did. marty white and the other intern started doing a cutdown on the president's right ankle, i think. cutdown is where you start an i.v. by making an incision and putting a big tube in the vein to get a lot of blood and fluid. diane and looked at the president overall, saw he was breathing very eradically. calledding aenal respiration. >> the impression was that he was not dead at this point, he was dead at this point? do you do this anyway? >> yeah. we looked at him, and he still had had some breathing and heart beat. he had a terrible-looking wound, but you kind of defer later to evaluating in detail.

the principal is you have somebody who is got a -- what looks like a terrible injury and his did. first thing you do is do the things i talked about. get the airway going, get them breathing, then you see -- then you have time to evaluate the extent of the injury. i told folks before that the thoughts that i remember going through my head takes longer to describe them than it took to happen were first the president's had it, he's not going to make it. and that was right. the second is we've got to do something. that was the political and the medical thoughts. we can't let the president die. third thought was, gorbachev, what if we get him alive and he's a vegetable? and the rational thought was treat this patient like anybody else, get his airway under control, get him breathing, get his circulation going, then you

can decide about all that other situation. so that's what we did. >> well, you obviously must have really felt such a responsibility. were you thinking in terms of history or, gosh, this is -- >> well -- >> this is on my shoulders? >> this was brief thoughts. it took that long to happen, where the nonmedical thoughts, if you will. i mean, i guess my major thoughts were, you know, i didn't think about the historical impact, what that that's going to do. our job is to take care of the president. we got kind of a reputation of medicine and everything else on our back for a second then. and then that's where the rational thoughts took over and said, ok, we know how to do this. whether this is the president or whoever, we know how to take

care of this guy. so it became pretty much unemotional and not automatic, but dispassionate at that point. >> professional aspect kicked in as i think it did with law enforcement agents and recorders and everything. >> right. so there's that short personal emotional, what am i going to do feeling and then the personal aspect kicked in and you know what to do, you're trained to do. >> ok. go ahead from that point -- >> so the procedure then is to first see if the president's -- if the president has an airway and he really didn't. we see this wound up here and the side of his head. >> that was readily apparent? >> oh, yes. >> he was laying on his back. >> he was laying on his back. >> he came in and -- >> that was obvious. >> this is the part you want to kind of illustrate that in terms of where on his head and if it's -- what did you see? >> that's fine. it's kind of out of order medically, but probably in order

forensically. what i remember -- and i was telling dr. montgomery earlier, with the president laying on his back, i could see the whole wound in his head. and that's important because that really doesn't fit perfectly what we wrote down later. so that meant it had on the -- it had to be in the -- well, it was about right here as i recall and about as big as i'm showing with my hand. a big chunk of bone and scalp missing. the fact you could see it from the front and this involved the parietal bone which is this big skull bone and this big skull bone. so we saw that hole. we saw -- he had a little hole right -- >> was that about -- another sort of controversial thing is was this above his carotid line or below it? >> by the time i looked, diane the nurse had started to take his clothes off, which is her job. so we don't know, so it was

certainly at the collar line. about right there, to the right of the trachea. and just certainly where his collar should have been. >> she was the one that removed the tie? >> yeah. i mean -- >> i think it was cut off, is that correct? >> that's correct. >> would that be -- >> that's normal. i was doing other stuff. i was looking at his head and stuff. but what you normally do is take scissors right there or right there. so that both gets the collar and the tie beside the knot and then you take the shirt off. and then you can see if patient's chest, the breathing and all that. so that's -- diane was doing that while i was actually trying to evaluate what we were going to do. i think i just messed up your microphone. >> get it in ok? >> anyway so the next thing since he really wasn't breathing very well, the next thing to do

was to try to get him breathing better. and this involved putting in the endotracheal tube which goes through the mouth, down into the wind pipe and you can breathe through. so we got that done, and at that time we could see that there was some blood beside the larynx which is down deep in the throat. >> oh, ok. along on -- along about here? >> on the inside. >> oh, ok. >> you take a lighted instrument and you look down and see the windpipe inside -- at the bottom of the throat and then you put a tube in it. i looked down in and i could see that there was some bruising and some abnormal swelling over to the right side of the windpipe. and we were able to slip the tube into his trachea and should have been able to breathe better at this point. >> that head wound which you're well aware of and such

controversy and various interpretations and so forth, did you have any thought at that point, the direction -- the shot that came from the front, the rear? >> no. i mean, two answers to that. it -- that's not what you think about at a time like that, although you can't separate thoughts that much. the other is that that wound certainly -- this wound certainly looked like an exit wound. i mean just because things were just really blown away.@@@@@@@@ >> exit towards the back? >> just out. you have wounds that go in, wounds that go out. that is what it looked like. there was nothing about it that would say whether the entrance had come from the front door from the back. it looked like this is where the bullet went out.

>> this is really, in a sense, routine. the team worked with this kind of emergency every day, right? >> correct. >> that aspect was not that unusual? >> correct that -- correct. he tried to treat their wounds, and then where you are not successful, you work with the medical examiner to try to figure out -- help them figure out the forensics. they are the forensic experts. >> and as much as we can clarify, the two moons -- the two wounds, did you ever determine in your mind, the shoulder and neck wound? gerald ford who is on the warren commission flatly altering a

description there that's kind of brought -- stirred the issue up? >> sure. sure. well, the -- the simple answer is that the only wounds i say, the only wounds that we saw were this wound here and this big hole here. we never saw the wounds in the president's back. the medical process is we got his airway going, then we hooked him up to the ventilator and we're trying to help him breathe. then, you've got to answer, how is his breathing going and to answer that you've got to ask are there any major holes in his chest wall like the governor had in his chest holes which would impair his eathing. so you don't which impairs breathing, so you don't always roll the patient over to look at that, particularly in the situation that we're in, you

don't roll the patient over. you put your hands behind the -- from the belt and move up and ensure that the body cavity is intact. we didn't see any big holes and didn't see what turned out to be small wounds, one over in the shoulder and one in the back of the lower back of the head. so we didn't see the wounds in the back. that's a long answer to a show question. -- to a short question. and the reason we didn't, that was -- at least at that point that was not part of the appropriate medical exam that would require washing the blood off and somebody you're struggling to keep alive, you don't do that. >> is there anything else that you need to fill in here, to

declare dead or who called that shot? >> there's some medical stuff which we could fill in briefly. after we got the tube in, tried to breathe for him, he still wasn't breathing very well. his heart rate was slowing down and his heart actually stopped. when his heart stopped, by that time dr. perry, dr. jones, dr. jenkins, the assistant chief of anesthesia, dr. baxter, a number of people were there, they started c.p.r. because of the concerns other issues, we put chest tubes in both chests, so if you do have a collapsed lung, you can expand it and you can breathe. concern about whether or not the trackal tube was where it should -- trakal tube was where it was

supposed to be. and there was an incision in the neck to get a shorter tube in place. that is important -- when it comes to explaining what was done and what happened in that 20 minutes. the trachia wound went through this wound in the neck and that caused confusion later. that's where it had to be. then the -- we gave him steroids because we had remembered from some stuff in the press that he probably had abnormal adriennal glands. >> you talked about the secret service -- you didn't have his medical record there on hand, as you would have today. >> correct.

so at this point we had gotten him breathing and trying to make the circulation better, it wasn't getting better, it was getting worse. we were doing all we could to get things stable. kent clark, the chief of newero surgery evaluated the head wound in much more detail than i did and kent clark, the chief of neuro surgery is the one who pronounced him dead. >> the priest had come in? >> actually dr. clark said -- he basically said it's time to start resuscitation. for whatever reason the decision not to pronounce the president dead until after the priest had come in and given him his last rites. so we stopped treatment, but dr.

clark pronounced him dead after the last rites. >> so from that point what happened? >> well, from that point my job was -- the medical part, the patient care part of my job was over. had two things to do. one is we had to -- as we do for all patients, write a brief report in the emergency room records of the treem and what we saw and what -- treatments and what we saw and what we did. the other job was to find those three patients who i had been working on before the president came in and take care of them. we did sit down -- i remember one thing. i walked out of the trauma room one, the big emergency room, which 20 minutes before had been

a big city county emergency room full of people being treated, etc. all of the patients were gone when i walked out. they had been moved elsewhere. the people in the room were by and large men with coats off, shirts and ties on and guns on their hip, and a couple were talking on the phone to washington. and that's when i guess really the whole thing kind o hit me. up until then for that brief moment it had been professional work. i walked over there and realized that not only had my world changed, but the whole world changed and it changed that quick. i smoked at that time. it was the cute thing to do. i started up a cigarette.

i lighted a cigarette. imagine lighting a cigarette in an emergency room now? it was common then. i lighted a cigarette, and i was trembling so i couldn't hold the match for the cigarette. got that under control, and sat down to write my recollection. each physician writes their own report independently. there's no proscription exchanging information. you could ask the guy next to you, where was that wound. i do not remember if i did that or not. >> in terms of any conversation that you might have had about the affect on others being a part of that process distribution you all talk about it later, if not then? >> you mean, just how everybody

was dealing with it? >> how it affected you personally? >> we -- i'm sure we talked about it some, but we didn't talk about it as a group. and there was none of the debriefing that would happen now. we just went back to work. we wrote our reports. as you know, by the time that we finished writing our reports, they had taken the president's body away, so our reports did not get to bethesda in time for the autopsy. >> what do you know about that, the conflict of removing the body, state law, autopsy should have been done here. at the time did that seem significant to you that it was removed? >> no, i -- i was a little surprised in a professional

sense. as i said, what usually would have happened if a patient came in and died of a gun shot wound, we would have done whatever we had to do medley to keep him alive -- medically to keep him alive. we probably would have spent more time trying to figure out the forensics ourselves if it wasn't the president, it didn't seem appropriate since it was the president. it wouldn't have mattered. because when earl rose did his autopsy, if he had questions about the treatment, he would call us. as a matter of fact, he called us just to teach us. he would call our house and said here is this patient, tell me what you did, and let me show you how to recognize entrance wounds an exit wounds. so we assume -- and exit wounds. so we assumed that earl rose

would do the autopsy when the president was taken away, we realized, gee, the body's gone, earl's not going to do the autopsy, and these guys are not going to have any medical records to go by. but that was kind of the medical surprise, if you will. didn't think about why they would have done that. >> it wasn't related to competency as -- >> no. earl rose was and i think is still recognized as one of the outstanding forensic pathologists in the country. new president johnson was not willing to leave dallas on air force one without president kennedy's body. >> so you think it was probably his decision as opposed to mrs.

kennedy? >> what i heard is that president johnson wouldn't leave without president kennedy's body and i don't know any facts, but it makes sense. i mean, he was a shrewd politician, and you can imagine the impact of people. he -- if he left the president. >> i recall the interview you had with henry wade, who was the district attorney at the time, and kind of dismissed that as -- he said the only fine was $100 if you removed the body from the state of texas. it wasn't that big a deal in that point of view. >> the law is if there is a murder here, the autopsy examination has to be done here. gosh, it was the president,

there's no laws about shot presidents. if i had been a secret service man, i think i would have done the same thing. i would have gotten the president's body out of here, i would have gotten johnson out of here. the first thought was to get johnson to safety. >> when the autopsy was performed, the information that came back to -- to you or to dallas, how did that come about? what was your reaction then? do you remember? >> well, the first -- we had -- we -- you know, friday night had been busy, we had taken care of those three patients. [both talking] >> saturday morning was our -- our mortality conference. every saturday morning and

looked at all of the cases that we had done during the week and anything that had gone wrong, we analyzed what had gone wrong, which is a typical medical approach to things. so we were in our saturday morning conference when the phone rang and it was the pathologist in bethesda trying to get a hold of dr. malcolm perry to get some medical information. and that was the first time, i think, that the pathologist in bethesda knew what happened here. . all they knew was that there was a hole here and here. because they didn't have medical records, they couldn't figure out how three holes connected. so they called malcolm, and that's when they told him that there was, you know, that these other two wounds were there and that's when it kind of begins to make sense that it went in here,

came out here, nicked his trachia, maybe hit his spinal cord, and the other one came through here and blew that big hole. that was the first time that we can put things -- could put things together in a way that made sense. >> what you heard from him and after those discussions, did it make sense to you? >> yes. because before, you see, this hole and this hole didn't know whether there were holes back here or not and they speculated on how these two could connect. it was hard to make sense of that. >> what about the bullet that went into president kennedy and into governor connolly, is that feasible to you? >> yes, it is. there's been a lot of analysis

on that on both sides, and i can't go into it in detail. but certainly the concept that a bullet -- this first bullet went through here and really hit very hill of the muscle and then went into governor connolly's back, and the first time that it discharged a lot of his energy was coming out through his chest here, and then i guess it hit his right or left wrist. i forgot. it must have been his right wrist and hurt the bone. but if you looked at what terrible destructive wound like this thing was and splattered into his thigh. that sounds like a lot of traveling for a bullet, but it is certainly plausible. bullets do strange things. and that was unlike some of the

movie suggesting about -- that's pretty much a straight line. >> you were in that first room working with dr. delaney. did you realize -- [inaudible] >> you left that room and went to the intersection body and didn't realize that it was the governor? >> no. >> when did you realize that it was kennedy? >> as soon as we walked in the door. that's who we were looking for. you see who you're looking for, we were looking for the president. connolly wasn't him and it -- it didn't really matter who that was, did it, in terms of treating him? we were going to treat him the same as anyone. when i walked in the room and saw it was the president, it was obvious it was him because that's what we were looking for, and, of course, he was very

recognizable. >> talk a little bit about [inaudible] >> the -- well, what i know in retrospect, at least what i believe is that president kennedy had had some severe arthritis, etc., and that been put on steroids for pain relief or for relief of inflammation. and when you put people on big doses on steroids long enough, the adriennal glands -- adenal glands quit -- adrenal glands quit responding. but the way that we had some hint that something was going on -- we were aware of the noise in the press -- some of that noise in the press. somewhere in congress within a

few months before the president's assassination, there had been a discussion where somebody had said that the president had addison's disease, and bobby kennedy said that addison's disease is caused by t.b. my brothers never had t.b., therefore, my brother's doesn't have addison's disease. the logic is there, but the lodge telecommunication a country boy, -- logic to a country boy, that's a little evasive. it is common knowledge -- >> i can recall those rumors. >> those rumor that's he had adrenal deficiency was around. we remembered that, so we gave him steroids early in his treatment. normally you would not do that to somebody in shock. but if their adrenal glands are

not working, you do. >> but addison and t.b. is not connected. >> medicine is a funny business. there's physical logical diagnoses -- physilogical diagnoses. and dr. addison described adrenal deficiency from those who had t.b. so addison disease is adenal deficiency from t.b. >> i heard that had you not given him that injection [inaudible]

he would have had problems. >> what probably would have happened if he really had adrenal insufficiency, and we think that he did, he never would have responded to the shot, he never would have come out of shock it would have been more difficult to get the circulation going. what the adrenals do when you get stress, they kick up cortizone and other things which help your body respond. it would have made it difficult for him to come out of shock. but had he lived, he would have still needed steroids long term. but there would have been no injury -- any organ injury, but it would have been important to get him to survive. >> you're a little modest. it was you who remembered that. >> yes. that's what a team is about.

everybody pitches in and -- and actually he would have got it anyway because admiral berkeley came in late in the resuscitation carrying vials of hydrocortizone to make sure that the president had gotten it. admiral berkeley was the president's personal physician. >> he was traveling with him? >> traveling with him. but he was two or three cars back, so they got separated in the traffic, etc., in all of the melee. >> i think he was escorted to the trade center. >> yes. >> and then people had to scramble to get to the hospital. >> it was late in the resuscitation when he said give the president hydrocortizone. by then it was too late. we had already given it. >> he was pleased to know that you had given it?

>> yes. >> one of the other conspiracy theories is how his vitals were removed, his heart, lung, a question about a switch of a body bag. do you know anything about that at all? >> i really don't. >> you were not in the room? >> wasn't in the room. i wasn't aware of when he left. i was just aware that he had left. there's one thing that dr. montgomery and i were talking about, which is in our records -- >> which is kind of the next step for you to add anything we hadn't touched on certainly. >> if you looked at what we wrote, we said that the scalp wound was occipatal, the occipital bone isin the back. these notes were written after the president was gone.

and it didn't occur to us that this was a big forensic record we were writing. we thought this was a medical record. if the occipital bone is way back here, and the president is laying on that, you can't see it. >> can you turn your head? >> yes. this is where the occipital bone reach its peak. so it would have been back there. and literal speaking, you know, it would have been difficult to explain as an exit wound if he were shot in the back, and, number two, you couldn't see it with the patient lying on his back on a gurney. so the recollection where you could see the wound from the front's accurate, and i think it is, then what we show was temporal. part of that is that the medical

record is more than a medical record. it becomes a forensic record. so i >> in a moment on "america and the courts," or view of the supreme court term. after that, a news conference on health care legislation with a group of anti-abortion activists. and later, a discussion on the role of states and emergency management. ♪

♪ this is c-span's "america and the court's." next, a stanford university law professor will review important cases from the recent supreme court term. she spoke in monterey, calif. last month. >> thank you judge fisher, and good morning, ladies and gentlemen. it is an enormous honor and privilege to be here at the ninth circuit with some many friends and admired colleagues. my task is to talk about the last term the supreme court. i thought we would get the morning started with fleeting excellence. i do not just mean what you said on the golf course the other day. although that is not just a joke. justice stevens, in his concurrence -- his dissent in

the decision in fcc versus fox says broadcast and expletives, according to the fcc, in violation of fcc broadcast policy, are not always in the center -- in decent. as he said, as any golfer who has watched a shanked short approach go, it does not mean that the profanity uttered is in decent under fcc rules for describing sex or excrement. but i will return to the first amendment, a first topic. just a few overall observations about the past term. number one, it was not a term for making constitutional law. the only real strict constitutional case in this term was about a tonnage clause.

there was a statutory evaluation. the first observation about the term is it that if you edit a constitutional case book, as i do, you are hard pressed to find any cases that made new constitutional law as opposed to avoiding it. it is striking to make that observation when we see that the hearings we just included in the judiciary committee on the nomination of judge sotomayor focused almost entirely on constitutional law. so the first observation to remember, and this is no secret for those of you on the federal bench, most of what it does is not making constitutional law on hot-button topics. it is doing the work on

interpreting statutory limitation, procedural rules, and regulation. that is the bulk of what the supreme court does. we did see that the supreme court did not focus on several topics of recent interest. for a while, it was a patent @@@@@@@ !b@ @ @ @ a%@ @ @ @ @ @ came before the court. there was a century in which the court did not pay much attention to -- and attention to patent law. the court took a great interest in patent law and reversed the circuit and a number of cases, taking some pressure off the ninth circuit. the court recently has not taken any significant patent case. what did happen that was widely noted in the legal press is that they took a new interest in environmental law. it took five cases, ruled

against the environmental perspective in all five cases. cases, in most, with the government but against environmental ngos. it did rule against several liabilities in the first major case in 30 years, and some people with success -- suggest that they took a new interest in environmental law. the next observation was that the court was divided along some familiar lines in some cases but had cases you could refer to a strange bedfellows, cases where there was a division but the court did not line up along familiar lines, and we will talk about some of those when we get there. if i could in earnest turn to the agent, there is an outline available giving you the basic holdings of these cases as a reference, but i will try to expand it a bit beyond what is

in the outline. to begin with, the first amendment -- probably the biggest anticipated case of the term never happened. citizens united, a case involving a question of whether federal campaign finance regulations make constitutional be applied to a movie broadcast. in this case, hillary clinton. the question of whether the regulations can be applied consistent with the first amendment, that so-called election terry communication was put off . the big case this term was a fizzle. we have two the first amendment cases, but the first went off on

purely statutory ground. fcc against fox television stations, a case in which the other major networks joined fox in challenging the fcc's newly announced excellence policy was decided 5-4. an amendment interpreting the statutory ban on indecent broadcasting. the band, repeated, and the liberal use of sexually explicit or excretory terms on the airwaves, but it allowed for fleeting expletives to get away. fleeting expletives is a great name for a rock band, if you have teenagers. the sec amended their policy to say that after a couple highly publicized incidents in which

first brought up, then share, then mikheil retreat 0-- bono, cher, and nicole richie, the revisited their opinion, and they said that the fcc should ban those words. the only issue coming to the court was an administrative procedure act issue. it did not reach a first amendment question, or the question of whether fcc versus pacific debt should be revisited or overruled. you all remember that. an fcc sanctioned against george carlin's monologue on the seven dirty words, where he took every opportunity to say them on the air.

in a petition to joseph stevens, the sanction was upheld, suggesting that this type of language is not at the core of the first amendment, and in any event, broadcasting is different, because it is uniquely pervasive. it comes a you, you do not necessarily have the opportunity to turn it off. the court did not revisit that issue in sec versus pacifica in fcc versus box -- fox. but justice thomas, often writes interesting concurrences, acknowledged what everyone knows, which is that broadcasting is no longer the unique, pervasive a salt of medium -- assaultive medium. to the contrary, he says, and now we have cable, satellite, the internet.

all of that and come at you using your cellular phone. the ubiquity of broadcasting, the assaultive in this -- assaultiveness has really diminished. they have already permitted in decency to cable, to the internet, and a future revisitation was promised, but it did not happen here. five-four, justice scalia saying that there was no violation here. it was not arbitrary and capricious to go from the old policy of permission to one of sanction. even though there are some exceptions, like bono and cher were not allowed to say what the

soldiers from "saving private ryan" were allowed to say, justice scalia found nothing contrary in that pattern and they upheld the sanctions without reaching the first amendment question. the defenders talked a bit about the issue. if you put them together with justice thomas, you may hear about the broadcasting exception soon, but it is not happening yet. let's turn next to the only major first amendment case today. i was not familiar when the case rose. but one look was taken at pioneer park in pleasant grove, city, utah, and they said, well,

i see a lot of monuments their donated by private groups, a 10th commandment group donated by the fraternal order of eagles. we would like to put up our monument to the seven aphorists of cinema. the city declined and said, we have a policy of only allowing monuments that speak to our history, or, since most of them didn't come up from groups with which we have a previous relationship. [applause] [laughter] certainly, they wanted to have a relationship with the 10 commandments donors. you may recall pair of cases several turns ago involving established pauses to 10 commandment displays in public places, and the court split. they said you may not, under the establishment clause, it

displayed the 10 commandments on a courthouse wall in kentucky, but you may put up a large grant and command monument in a parked outside the capitol building, and the court made distinctions there, but that doctrine was overhanging the case. that was the shadow overhanging the case. but they established -- avoided the establishment clause issue saying there was no free speech problem in the case. let's recall what it was. he said, is a public park, a traditional public forum that has held since time immemorial for trust. even dissidents should be there,

and we should be a will to put our speech into the mix. the court held, and it was unanimous, that no public forum principle was triggered here, because the placement of monuments in a public park is not private speech regulated by the government, but rather is a speech by the government friend itself. no requirement of content you neutrality or viewpoint neutrality finds the government in selectivity with respect to monuments. who knows what a public monument means? there is a monument to john lennon in central park. there are monuments all over the country that have been given by private donors.

we do not know that the city or accounting endorsed the meeting. we just know that the government was speaking by selecting these monuments rather than others and putting them up and the park. whether the government is putting up its own statues and arches, or whether it is accepting monuments from private donors, these are ways where the government can choose what to say. you may have just been let out of the free-speech frying pan and into the fire. you might think that the monument has run afoul of not endorsing religion, and the court says, we will just postpone that. concurring opinions said we think there are establishment

clause questions. in any case, it has been reserved for another day. i would just like to say a few words about the government speech doctrine. the notion that government has more freedom to engage in activity, it is not just in four cases but in finding cases. you can recall that the courts on terms ago, when justice rehnquist was still alive, they decided a case called rusk against sullivan. the government is giving out subsidies, and it may restrict those subsidies to those who incur child birth and did not advocate abortion. the government's need not be

even-handed as it is with public speech. and as justice rehnquist wrote, just because the government may choose to have a national endowment for democracy does not mean they need to have a national endowment for communism or fascism. hear, similarly, the court was saying just because you have the 10 commandments does not mean you have the seven africans and the five principles of other sex -- sects. i want to remind you, that case was won by a young government lawyer, and extraordinarily skilled, brilliant at writing briefs, named john roberts. he was the deputy solicitor general who at that time talked about government speech. it was not fully picked up then.

it was pulled in later in the rosenberg a decision by justice kennedy, which said you may not exclude a religious publication from a public university, but he distinguished, saying it was not the same because it was government speech. so it is actually trying to create a division between free- speech principles, in which case there is freedom to be selective, and cases in which it is regulating private speech. and other justices are nervous about this doctrine. justice prior and justice souter wrote saying they would not go so far about it, saying it would undermine. but return from free speech to federalism and to talk about the free major federal some cases of the term, three pre-emption

cases, and all came out for the states. why is that surprising? is always free statue-specific. he can never know in advance whether someone will be for or against federal pre-emption until you know what the regulation says. but the reason why this is all levels surprising is that it has been banner headline for pre- emption in the last several terms. s# state statutory and common law remedies pre-empted by federal regulation, even when there is no express pre-emption, there was as other forms of implied pre-emption. i want to comment on that just a little bit. when you think states' rights, i think anyone in my generation, and certainly the great generation that preceded mine, when we think about that, we tend to think about it as a

conservative doctorate -- doctrine. states' rights were invoked against the federal civil rights laws. they were imposed because the theory was that the states were backwaters of tyranny. states' rights was a salvo back to the days of john calhoun which insisted on the right to maintain a sort of retrograde resistance to advances in federal civil rights laws and other forms of federal law. of course, just following up on the, one of the great legacies was a deeply articulated philosophy of federalism that came out repeatedly in the opinions of justices rehnquist, o'connor, kennedy -- one of the great point of those opinions was not only eight -- an insistence on states' rights, but protecting them against congress. the rehnquist court gave not only new limitations on commerce

power in cases like lopez striking down a gun free schools or more some limiting -- morrison limiting, it has created new enforcement power in cases like u.s. against morrison. the limit of the commerce clause -- for the first time since the great society, you have limited congress' possible rights power -- congress so' writes power. whether it was telling them to take title to hazardous waste or talented local officials to in law enforcement to do background checks on handgun purchases, in the case formerly known as prince -- [laughter] finally, when you thought what kind of prerogative can they come up with next, they gave us

sovereign immunity. not just on the 11th amendment, lawsuits by citizens of another state, but in new cases extending the state sovereignty principal before the federal maritime commission and state court, leading some to say this was not the 11th amendment, it was the new doctrine down. the rehnquist court really, over and over again, on behalf of what many people would characterize as conservative results, limited the power of the federal government and created new doctrines, including constitutional doctrines, protecting the states from federal encroachment. now look at this striking reversal of the seeming political valence of the federal and decision. you have cases in which rather repeatedly you have the so- called liberal justices, and i use those terms in quotation

marks and with all due caution, because they're completely over sympathized -- oversimplified and misleading. but the judges who favored the federal perspective under the rehnquist court now, up finding for the state repeatedly in cases where there laws are not preempted. and those finding the rehnquist court limiting are now coming out for federal preemption. so we see a shift in valence. you might notice that the business community is facing an favoring preemption. it is not hard to see why. business would most likely prefer to be regulated by one

regulator and the central government than 50 regulators in states, were more likely, but one state that is more restrictive. it is not surprising to see that federal preemption has become an argument favored by the business community and conservative advocates. the case and this trend seems to get that back out. what happens now? victories for states. the states are maine, vermont, and new york. so i would put this set of cases under the heading blue state rights. blue states' rights as opposed to the kind of states' rights that went to the anti-gun control and anti-domestic

violence rulings in other cases. starting with the first, a poignant case. a woman who needs both arms as an anti nausea drug injected in her arm that causes complications leading to amputation. a one-armed former violinist walking down the court room steps saying she is entitled under vermont what to bring a failure to warn claim, even though the drug had been approved under fda labeling regulations. in this case, the majority comes out, saying there is no pre- emption. it was aided by the fact that the fda had more or less hunted down the case to join this majority, and i will say more about that in a minute. the argument is there is no

conflict pre-emption of state failure to warn a claim just because the fda approved labeling. justice thomas wrote an interesting concurrence. he said, i do not really believe in it implied pre-emption. if congress wants to expressly preempt state law, it can say so. justice thomas does not believe in applied anything. he does not leave applied constitutional rights, so it is no surprise that he says no implied pre-emption. that means there is an ever- narrower speed spot to try and get five votes on the court. in the descent, they would have upheld pre-emption. it was interesting, because they are strict constructionists. but they were willing to have a more capacious view of pre- emption.

just a little bit briefly, the claim was here that advertising of light cigarettes and reduced tar and nicotine were misleading, and addicted smokers went to town with to law, tried to practice. the court again found no preemptions. it is limited to certain kinds of advertising claims, but does not preempt representation here. and the third case of note happened in the last day of the term, called cuomo versus the clearing house.

it is a case illustrating the blues greats phenomenon. it takes a more permissive attitude towards environmental laws, banking, and financial regulations, and you have a bunch of attorneys general and other regulators, eliot spitzer is just one example, who try to make aggressive use of state law to do things they think the feds should be doing but are not, in this case, curbing discriminatory lending practices by national banks. in retrospect, we wish there were more discriminating, but not allow the winds which eliot spitzer was challenging. so they asked a question, was

the attorney general of new york permitted to go after national banks for discrimination in lending, when the controller's office interpreted the national banking act to his visit to oral powers, meaning that only the feds can inspect and investigate a national bank. the argument was rejected-5-4, and this is a strange bedfellows case. it is a lineup in which justice scalia rights for the majority, joined by justices stevens, souter, ginsburg, and brier, because they declined to give deference to the office of the comptroller of currency when of course it was dr. scalia, who in the chevron decision first

called for greater deference. hear, he says, there may be pre- emption as to certain investigative activities, but when the new york attorney general goes to court, and nothing about the term visitorial powers covers that, so no pre-emption. they have these narrow majorities -- no. that would be you facing pre- emption courts all the time. they depend on particular cases. three cases do not a trend make, but this is a dramatic results against cases where they have suggested blue states can

sometimes prevail. but to turn next to voting rights cases for the term. one of the most closely watched cases was northwest #one against holder. looking for sound bites, they tried to make an acronym for that, but it did not come out right. a closely watched issue was whether hundreds had exceeded powers by passing the 2006 extension to voting rights, 1965. this was closely watched for the reasons i have been discussing, the fact that courts cut back on congressional power, including amendment 14, section 5, amendment 15, section two. they cut back on the power of congress.

this is especially gets state governments. the court famously had thrown out the religious freedom restoration, because there was no evidence that the states were taking religious freedom away, so there was nothing to restore. against flores, they had announced new limits. everyone thought, is the issue going to drop? if the court pointed stick congress is limited? even with respect to race discrimination and the third rail that was so costly avoided before, as you'll recall, an elegant opinion says, "i am not saying that all of the cases are

overruled." he carefully grandfathered all of the cases up holding aspect of the voting rights act as it was reauthorize in 1970 and 1982. this brings up an important moment, when congress has extended the voting rights act saying that jurisdictns that used to have voting practices and operated as to facto discrimination -- in 2006, congress extended the act, saying we still need these prophylactic measures, and then we'll let the first black president of the united states, but at the record, and would look around parts of the jurisdiction and see we have more blacks registered than

whites. people look at that and say you do not need in 1965 remedy, because now it works. race is not a veiled basis for voting discrimination, as it used to be prince of the case was closely watched, but many people thought, well, the courts are going to do it. )&@ @ @ @ @ @ @ @ @ @ @ n#r@ @ allow boston to bailout under the bailout provisions. statutory bailout provisions

making it easier for you to opt out provisions that could show you have been good for 10 years. but it apparently applied only to counties, either counties or jurisdiction. the court interpreted the term to include utility district and therefore allow the bailout, avoiding the constitutional question and the armageddon of whether congress still has remedial authority in race discrimination, even if it does not for disability, certain gender discrimination, and so forth. i do not think that is surprising, because the chief justice, in confirmation hearings and public statements since leaving the court has talked repeatedly about the need for institutional. it is absolutely consistent with

his stated philosophy. so it was not a surprise. that said, it will not go away. if there is something disrespectful to the states, then you'd have some. no doubt there will be other challengers, and the record congress gave the court may not have made it that easy to survive, to say that this is ongoing.

there will be future challenges. i will suggest that many of them will continue to fail, because but aggressive use of bailout provisions is going to narrow the statute it has. justice thomas dissented from the constitutional ruling. he provided the ninth boat, but he would have reached the constitutional question. an interesting opinion against, and much of the best reading comes from his opinion. he argued section 5 is no longer necessary, writing vividly about the way it was almost a necessity, but he said you can

only necessitate prophylactic remedy is when there is intentional discrimination, and he does not see it going on now. there was another section to case this term barely noticed, against strickland, interpreting section to double- a-1 narrowly, saying that a claim under section 2 of the act may not be brought by a jurisdiction that is only 39.6 black and 39.36% black, as opposed to majority, minority. this makes it more difficult to create majority minority districts, and dissenters would have said it should be fine for legislators to create this district, even when there is less than 50% minority voters in the district, as long as they could obtain the candidate of

their choice. justice thomas wrote separately, saying they doubted whether section 2 should promote violation claims at all, but as usual, roberts, kennedy kept it narrow. they said no dilution here. while we are on the topic of race, i would like to turn next to some of the most noted civil rights cases of the term under the statutes apart from the voting rights act. i'm sure it is in everybody's mind, given the prominence of mr. ritchie himself at the sotomayor hearings, there she testified that the case of richie versus stefano, the case involving invalidated emotional demand for firefighters in new haven, the ruling was it did violate title 7.

i do not know about you, but i find the case rather poignant on both sides. on one hand, you have mr. ritchie and a number of his peers on the fire department, including not just white firefighters, but several latino firefighters, and they study. new haven says we're going to throw out the exam, we are going to throw it out. it is like charlie brown and the football.

you have got to feel for new haven. they have worried that they will be sued for desperate impact under title 7 by minority firefighters who may be terrific lieutenants but they do not pass this test. new haven asked in its defense that it would be entitled to throw out the exam on the ground it was avoiding the serious prospect of title 7 disparate impact legislation against it using the results of the exam. the court 5-4 rejects -- not only rejects the argument, holding an opinion by justice kennedy, scalia, and thomas -- not only does it reject the city of new haven's argument, it says you need to have a strong basis in evidence to find that it would make you liable.

mere fear of statistical evidence is not enough. there has to be a strong basis that you will be found liable. that is, you not able to defeat litigation on grounds of necessity or other reasons. a couple of things here. the court put a strong basis in evidence case for constitutional precedents, suggesting it will increasingly use constitutional reasoning, even in a statutory context where traditionally the court and congress is giving employers more latitude. the second interesting thing about the case is that the court did not remand. ordinarily, you demand and let the decision arise in the lower courts, but in this case, they did not. they said on this record, summary judgment for the

firefighters -- new haven does not get a second bite at the apple. they lose. so there is nothing in this record suggesting there was business necessity or something wrong with this test. what happens in this case is significant in title 7 litigation, but what did not happen is more significant. here the court did not reach the ultimate constitutional question, which is, is congress authorized to allow a disparate impact litigation at all? or does that itself violate congress' obligation to observe the applied equal protection principle of the fifth amendment? if people are allowed to sue for disparate treatment, you are -- if you allow a disparate impact

lawsuits, in a sense you're forcing the city to engage in disparate treatment, to invalidate a test because it does not promote enough people on the basis of race. justice scalia wrote in concurrence to raise the question, to say that it will have to be faced sunday, weather title seven can constitutionally permit this litigation at all. narrow ruling, driven by the chief justice kennedy and justice alito, a narrow ruling that just interpreted title seven and did not reach the ultimate constitutional question. justice ginsberg wrote a dissent, arguing that the test was a fish of the flawed as to give the city a good basis, if not a strong basis. thus there should not have been a violation.

one last interesting observation about this case -- justice sotomayor, i think the rhetoric may have been modulated in part because you do not want to greet your newest colleague by just reversing her and her colleagues in broad and aggressive terms. the case may have been influenced by the fact that justice sotomayor was on the panel that was reversed, and it is fair to say the principle here was new enough that accord announced 5-4 and the decision was sharp enough that it cannot be said the second circuit decision was so completely wrong as some suggested. i will not go in detail to the rest of the anti-discrimination cases. they are listed for you here,

but to give you an overview, there were a number of cases that arose this term under anti- discrimination statutes. under title 7 in some cases, under the individuals with disabilities education act idea, and age discrimination, and under title line. the most interesting take away for you was to see that this term, as in previous terms, there has been on next set of outcomes in employment and education discrimination cases. in other words, discrimination plaintiffs are still winning a substantial number of cases before the roberts court, which belies what you see about the court always been hostile to discrimination claims or favoring businesses. not so. they made new laws favoring plaintiffs in these cases.

not always. versus nashville and davidson county, a worker had testified in support of an investigation, and the court interpreted the term opposable. they said, you are opposing sexual harassment even if you just initiated it, and the court unanimously said she was entitled to bring her sexual harassment action under those circumstances for retaliation. i just want to note, if you want to win a discrimination case in the roberts court, of retaliation case the court has seen lately has favored the challengers side. you might say that is consistent. the languages plane, a

retaliation that is purposeful or discriminatory -- you do not have to get in fuzzy areas of statistical analysis. in other cases, the challenger winds. on the other hand, not sharing so well with the claimant in a case familiar to some of you because it comes out the circuit. the court against the scheme. this was the case that ask whether the 1977 amendments to the pregnancy, title 7's ban on sex discrimination -- you remember those, right? there was a claim it was sex discrimination to exclude pregnancy for medical benefits, and the court, in a famous pair of decisions said that discrimination on the basis of pregnancy is not sex discrimination, it is not discrimination against women, it is discrimination against non- pregnant persons.

apart from arnold schwarzenegger in "jr.," no one was aware of someone who could suffer pregnancy discrimination if they were male, but they probably amend the title seven to of the statutory overruled gilbert and say pregnancy discrination is covered by title 7. the case now arises@@@@@@@ h@ @ anyone who wants to typecast him

as an ideological liberal mrs. cases like this. they said no retroactive application or service credits prior to 1977, they are just lost. against fbi, an interesting case on page 3 of the outline. this is an interesting case, and i will predict right now it will cause a headache for district court judges who have to figure it out. you all know that under title 7, four years we have had a burden- shifting approach. i say that he fired me because of a primitive characteristic, race, gender, religion. you say, no i didn't come up with 34 a whole host of reasons. you have those characteristics, but you are also incompetent. in these cases, title 7 choreography has long been that if you put into evidence a prime aphasic case of an -- prime facia case, they could say they fired you anyway despite the

characteristic. financial services says that that only goes for title 7. from now on, we will not have burden shifting. this one arose under the age discrimination act. it is unusual for someone to lose, but this was lost. they were forced to bear burdens to rep. the case of persuasion over whether perot's was fired on age, and there is intimation that this decision is not limited, but applies to any anti-discrimination suits outside of title 7. i just want to turn back to two victories in parents. the individual with disabilities education act idea does permit

tuition reimbursement for sending your kid to private school for special education, even if he did not previously send them to public school. it makes a certain amount of sense. if you had a better deal of public school with one child, go to private school with the second child and get tuition reimbursement without exhausting the public-school remedy. the court said that was fine. even if you have not previously received special education, you can get tuition reimbursement. elastase i will mention is a case where the court sided with the plaintiff. th is a case about bowling and apparel going to a federally funded school. the title line action was

brought, saying there was a failure to enforce. she then tries to bring in 1983 sex discrimination action, but the court unanimously holds that the constitutional claim is not precluded, not an exclusive remedy. if you add that up, that is a good term for anti- discrimination. it just shows that in preemption, you have to look at these cases with attention to specific language of statutes, and the court does not. let's go on to do process. i put cases together sure that you may not have thought about together, but it is interesting to juxtapose them. the courts have two major

interpretations of the process clause. in one, it announces for the first time that you processed may sometimes compelled refusal of a state court judge. in the osborn case, the court holds that you process does not -- due process does not compel post-conviction opportunities to obtain and test dna evidence that may prove innocence of a prior conviction. let's back up to osborn and see what the court did. the district attorney's office verses osborn is a case that involved gristly, terrible criminal facts. it brittle attack on a woman, a rape and assault that left her for dead. she recovered, the perpetrators

were tried and convicted and served out their sentence. in the meantime, having clients to certain dna testing in the previous challenges, the osborn -- one of the defendants brings a 1983 action, saying, i want to test for dna now, and i am inserting due process, even though i am not in direct appeal but a post-conviction circumstance. the court held 5-4 in an opinion by chief justice roberts that there is no right for a proposed conviction challenge, even with an assertion that the test might prove innocence. in an interesting concurrence, justice alito says that the opinion did not go far enough.

it is more narrow than some of the college to make a more incremental decision. they would have gone further and said habeas is an exclusive vehicle for challenging innocence or seeking dna. there should never have been a challenge in absence of state remedies. in defense, justice stevens, joined by ginsberg and in part by souter said, you know, in these circumstances, due process should have allowed the test. alaska was one of the few states that had not resolved questions by statute. a big theme of the majority opinion was that if you wish to have dna testing post- conviction, handle it by statute. but the legislature figure out if they want to implement the cost or whether it will have all kinds of frivolous tests. the jury is saying it has to be

a legislative remedy from the state. the defense said that that is not good enough. that is osborn. an interesting, different case from massey. this case makes to kiss the ground that you are in the federal judiciary and though not have to run for election or retention. you have that gift the framers did you in article 3 of tenure for good behavior. and we figure that is for life. no diminution of salary. the state, by contrast, pretty much all have some version of elections for judges, whether they are initial or retention. that comes out one of the progressive efforts to make sure that there is democracy in government, that elected judges will be responsive, and that

many initiatives, like the initiative and referendum in california, this one may be perceived to have backfired. now instead of judges being elected democratically by the people to insulate them from patronage, you have the influence of special interests on judicial elections. such was the case with massey. you had 16, supplied by an individual who was ceo of a company that then came before the court on an appeal from a buy back company for the jury. and the judge was supported by the contributions, declining to recuse himself, and the court entertain the question of whether the do you process clause of the 14th amendment compelled accusal. . .

>> a person with a personal stake in a particular case had a disproportionate influence in placing the judge on the case. the dissenters said there is no standard here. this will cause chaos in the state courts and invite unwarranted refusal actions and should never have been decided this way. the refusal actions will harm and the cure will be worse than the disease. before week think that our predictions will come true, we must remember this could be this

term's case of bush vs. gore. justice kennedy could not have been more specific in saying this was particular to the facts here. this was an extreme case. it was a high percentage. it was a direct case involving the company. take away any of those facts and to press -- to process would not compel refusal. i just want to say a background word in this situation was the case arises. a few terms ago, the court had narrowly decided case called republican party against white. it asked whether the first amendment barred states from limiting campaign solicitations and statements by judges running for election, and the court said there is a first amendment limits on campaign finance regulation in state judicial elections.

justice o'connor has spent most of her time since she left the bench during a kind of -- trying to do with the unintended consequences of that decision. she has devoted herself with enormous success to the project of trying to bring back some judicial independence to the states and to try to contain republican party against white so we do not think there has to be eight free-for-all in judicial elections. state election spending and financial activity kind of took off in the wake of republican party versus white. it would seem like a first amendment license for resisting a lot of the state regulations. it may be a kind of signal to the lower courts.

there should not be a free-for- all in state judicial elections. we cannot handle all through x post refusals. it sounds in due process, but it may be a shot across about on the excessive reading of republican party versus white to immunize judicial candidates from in the form of a judicial election restrictions. even though i am a huge first amendment libertarian, i think buying judges is one place where the first amendment has real limits. [laughter] let me turn to the two last topics, and then i would love to hear from you. just a couple of the highlights of the criminal procedure docket.

here there are many more criminal law and criminal procedure decisions. i have just try to pick out some of the most prominent ones. a couple of fourth amendment cases. herring vs. united states is a different kettle of fish. maybe it is just a red herring. it tips the scales of justice. herring is a case that raises yet another limitation on the exclusionary rule. it says the for the menendez require the suppression of evidence -- its is the fourth amendment does not require the suppression -- a car search of a vehicle compartment, if the

initial arrest was based on a false arrest warrant. it applies only if there is a systematic error or reckless disregard of constitutional requi2eg@@@@@ @ , @ @ @ @ @ @ @) precedent, a majority led by justice stevens. it is over in a dissent by other justices.

the police officer has to believe that the arrestee is then reaching distance of the vehicle. it has to be related to wingspan. you have to say that the defendant might get a glove -- might get a gun from the glove aparcompartment. a quick word about bandy camp vs. cold sting. -- van de kamp versus goldstein. it extends to actions that are involved in supervising subordinates compliance with obligations of excluding exculpatory information to defendants.

this is an interesting case because the court is very into prosecutorial immunity right now. it will ask the question of whether prosecutorial immunity extends to the investigative phase. it says you cannot just repackage it when you are going after what the prosecutor did back in the investigative phase. i will predict that the court will hold at prosecutorial immunity extends to the investigative phase. i am filing a brief today on behalf of 30 states in support of that case. it was a unanimous decision, and i think it was understandable why the court might not have decided that, because it has not clarified the meaning of embler

until now. i just want to mention two more cases. dinz against massachusetts is another one that will be important to people in the criminal field and in the district courts. diaz against massachusetts extends the crawford line. entitles a witness to have an opportunity to cross-examine the evidence against him to a laboratory analysis of drug samples. lab analysts cannot just sign an affidavit saying yes, this is cocaine or meth. a lab analysit has to be available for cross-examination.

the attorney general said it would impose enormous cost on the state. they should be processing samples. it will be enormously costly and difficult. justice scalia and justice thomas joined in an opinion while justice breyer goes off in the sense with roberts and alito and kennedy. he says we do not do cost- benefit analysis when it comes to the constitution. it must be complied with. you must be able to confront the evidence against you. i love cases in which the justices defy this labeling of who is on what side of these cases.

i come now to two glass cases. i will mention pearson against callahan. if you want to go to qualified immunity, do not stop to decide whether the novel constitutional question has been resolved in your case. i want to back up to another case. it is the case in which the so- called strip search case, involving a search of a 13-year- old girl right down to her underwear, based on suspicion that she might be possessing or distributing a drug forbidden by school policy. in this case, ibuprofen in high potency quantities.

this was the case in which the oral argument may have helped to determine the outcome. the ninth circuit said there was a fourth amendment violation here. this was an unreasonable search and seizure, even under the precedent that gives school districts lots of latitude to search students. even under the tlo standard, there was a violation here of privacy. the opinion of the court by justice souter is not entirely lucid about what the standard is for what is excessively intrusive. he suggests that heroin might be different. it is very significant that the fourth amendment was extended to hold this search unreasonably intrusive, in violation of the fourth amendment.

the court goes on to say there was qualified immunity, because the rule could not have been clear. the reason i say the oral argument might have had such impact is that you all recall that some of the justices made somewhat light of the strip search, with some of the male justice's referring to what is so bad about your underwear being snapped? in happen in the locker room when you were growing up. justice ginsberg in a rare departure gave a long interview to "usa today," in which she said i think my male colleagues may not have appreciated how sensitive roles of 13 are about their bodies and privacy in relation to their bodies. then you get an opinion where the court seems to have shifted over to the fourth amendment ruling. i think that justice ginsberg's presence there was a way of saying that perspective may be

brought sometimes by the differential experiences people have based on who they are. in this case, being a woman on the court gave her a different perspective. redding was a very interesting case, but i do not think it stops school officials from doing searches and more dangerous circumstances. i think the sleeper case -- have given you this under the heading of civil litigation. this was a case in which the court held insufficient a complain that named numerous high-ranking federal officials, including ashcroft and muller themselves, for allegedly putting arab muslim men into a

high-security facilities right after the terrible events of 9/11, under a pattern of race, religion, and national origin discrimination. that is the claim. the court says this complaint is inadequate. first, justice kennedy says to complain against mr. ashcroft and mr. muller, you have to have their personal knowledge that this was discriminatory. it is not enough to allege there is indifference to the discriminatory actions of their subordinates. a prediction you will see this claim for dismissal in every claim of discrimination you will see coming into your court. everybody wondered after the case that said a complaint for conscious parallelism under the sherman act is insufficiently

pleaded if you do not have facts showing agreement rather than conscious parallelism. is it just for antitrust or for all complaints? you can throw out a complaint that merely asserts the legal elements of a claim or a search general and an particularized factual allegations. hugely significant ruling, because now you have motions to dismiss that will multiplied. outside the context of antitrust, a hugely significant ruling. there is a really interesting dynamic in the case. justice kennedy quotes twombley

all over the place. he is quoting david souter. souter rights the principal dissent. he says i am david souter, you know nothing of my work. it is just like the scene in annie hall. an allegation of significance to subordinates. he does not think twombley should have been extended in this case. i predict it will be the site is the most frequently in the pleadings and friday.

let me conclude, having mentioned in justice souter just a few brief thoughts about the transition we are about to see. i think justice souter has been a magnificent justice or any of us who had the privilege of arguing before him and the court. we all know that he was extraordinarily well-prepared, fair minded, extraordinarily probing, and a lucid questioner. he was one knew i would hark back to the great moment when i was able to persuade justice souter to come out to present a eulogy to my late, great colleague and mentor, gerald gunther. justice souter is not a man who likes to travel. he likes new hampshire. i called up his secretary.

he loved gerald's but because he said he should approach each case and decided as carefully as you can for that case. he had written him a fan letter about the book. i was unable to get justice ginsberg to come to the eulogy because she was being inducted into the women's hall of fame. i tried justice souter. i called up and the secretary said you never get him to come. is that in connecticut? no, it is in california. he will never go to california. he only likes to go to new hampshire. five seconds later, might line rang, and it was david souter. he said he would be honored to

come to gerry's memorial. he was extraordinarily gracious to everyone there. he is just a magnificent human being and model judge, and will be very much missed. i think we will miss him for a lot of reasons. the accent is going to change from new hampshire to the bronx. i still remember a case in which i was arguing in court and i was on deck waiting to go up. the advocates ahead of me were arguing a case about whether a law imposed a minimum obligation. the colloquy it started to go something like this. justice souter -- are you saying there is a flaw in the law? the advocate -- no, we actually endorse the law here. >> know, are you saying there is

a flaw in the law? >> no, we admired the law. >> he leans over and says no, he is asking you if there is a is asking you if there is a floor@@@@@@@ @ @ @ @ @ @ @ n r@ be a presumptive confirmation of judge sotomayor, who has been another magnificent judge. it has been my privilege to know

her as i reside sometimes in the second circuit. many people think it would just be an even trade, that it will not alter the outcome. certainly that is true. justice souter was then 5-4 majorities. he is in the majority on abortion rights and the establishment clause rulings, such as the one that limited the 10 commandments in kentucky. he is in the majority on a number of 5-4 cases. he has been consistently in the minority of all those states' rights cases that i mentioned before. with respect to a lot of those lines, there will not be a change. i do want to remind everyone that justice souter was not an ideologue. he was often on the side -- on

the supposedly non liberal side of cases. he was very often in favor of dismissing complaints, heightening pleading standards and standing recurrence, and other things that make access to civil litigation more difficult. he was one of the people who was willing to write decisions limiting punitive damages under deep process reasoning, saying you have to constrain that. that is the only major constitutional innovation from the conservative side as opposed to the structure inside. punitive damages, pleading requirements, private rights of action, standing requirements,

justice souter was on the business community's side of a lot of those cases. not clear that that is a place that justice sotomayor will necessarily step right into his shoes. if the rehnquist court hallmark was states' rights, the roberts court homework -- hallmark, you might say that increased barriers to civil litigation, or an attempt to bring rationality to civil litigation, has been a very important, consistent theme of the roberts court. in that, justice souter has been a consistent ally, is an open question whether justice sotomayor are will be. thank you very much. [applause]

>> before you get up to leave, we will entertain a few questions. i would also like to take kathleen sullivan will be here all week with us. you will have a chance to walk right up and ask your own personal question, if you would like. in the interest of time, let's take three questions. if those of you who would like to ask questions will go to the microphone, then i would also like to have you please fill out your evaluation forms, and remember that special task that i am asking. tell us what you would like to hear when we come back to our program in january of 2011.

>> you are not obliged, and i know coffee awakes, but is there any thing anyone wants to talk about? >> i think it would be interested if you could amplify a little more [inaudible] what more do you see in the dynamic of bringing a new justice on? >> i will repeat the question so everyone can hear. what do we think would be the

change in the dynamic on the supreme court to have a new justice come on, as justice sotomayor in everybody's prediction will shortly do? the old saying is that every time there is a change in a justice, there is a change in the court. that is absolutely true. as i am sure you find record -- as you find with your court, the composition of the panel itself does change some of the dynamic of conference and oral argument. i can tell you judge sotomayor is a vigorous questioner. she is an active questioner from the bench. i cannot see that changing. i think the experience of oral argument will be a continued dynamism. for anyone lucky enough to argue in front of the supreme court, it is already an extraordinarily dynamic court. it is a court in which almost everyone asked questions all the time.

it is up for of 60 questions in almost every argument. the active questioning will be there. she will be probing question. she is a person of very strong commitment to coming to the right result. she will be an active participant in conference. she will be an active and vigorous player on the court. we have seen in the hearings that she will not come with preconceived agendas. she will be responsive to her new colleagues, and she will approach them with a lot of modesty and deference. it will change, but i cannot tell you right now as a prediction how it will change. she has been more willing to entertain access to civil litigation in certain contexts where justice souter has been on the other side. she was willing to interpret

federal statutes to allow causes of actions. that is the only area where i think we have had any evidence to see what she will do on the supreme court. as those who follow the court know well, the change of justice will change the corporate -- -- -- we just do not know how. >> all the questions are designed to play to a base. what would you suggest that a nominee ought to be asked? >> he asks what could make the hearings less stylized recitations of in the formulas like "i will follow the law."

i wish i could answer that question in a useful way. i would love it if the hearings -- i think there are a fantastic educational opportunity. the court is the least visible branch. alexander hamilton said it was the least dangerous branch, but you might say today is the least visible branch. the court is so invisible, when justice souter was back in new hampshire, he was recognized by somebody in the local coffee shop, and he was pleased. they smiled and said you are that supreme court justice. he beamed and said, why yes, i am. they said, you are just as brier. -- you are justice breyer.

he said his favorite thing about serving on the supreme court is the opportunity i have to work with justice souter. [laughter] i actually think the hearings are a magnificent public educational opportunity for people to learn about what goes on in the court. i think we do squander the opportunity by having a stylized kabuki dance. the vendors -- the defenders will say she is moderate and restrained. that is not a good use of public education. i would love it if the court talk more about the kind of cases i have talked to you about today, not just a few hot button issues.

if someone landed from mars, they would think the court only decided about things like abortion and gay marriage. it is of vital case of the huge apparatus, this magnificent apparatus of the federal and judiciary that decides countless cases in which procedure matters and statues matter. a few questions about whether the carmac covers intermodal shipments by rail or see, that would have been a lot better. i recognize that any recommendation like that does not have any chance of succeeding because the senators play to their base. their base is interested in political issues. maybe to have a panel of people other than the senators themselves doing some of the question, having lawyers or academics do some of the

questioning, might be a good thing. as long as we have the system -- we may be stuck with it, but i wish it would be more edifying. thank you very much. [applause] . >> the first oral argument was scheduled for september 9. the official start to the term begins in october. you can watch this program again or other recent ago america and the courts" programs at c-span.org our program.

this will be prose -- posted within 24-hours. matt mayer is a visiting fellow from homeland security projects. he is an adjunct professor at ohio state university.

he is author of a book. he was a 2007 lincoln fellow with the claremont institute and a 2003 marshall fellow with the german-marshall fund of the guide states. he previously served as a senior official at the department of homeland security. prior to coming to washington, he served in the administration of colorado governor bill owens. he received his bachelor's degree from university of dayton and are his law degree from the ohio state university college of law. matt? >> thank you. welcome to the heritage foundation for another one of our speeches in the homeland security in the state project. the topic that we will talk about today is one of the critically important topics. this is the importance of a state-led with disaster response.

we are currently in this that began back in 1993 when we went from about 43 declarations out of the agency per year in 1980- 1992 where redoubled it from 1993-2001 to '89 declarations per year and back that increase more under the bush administration to 130 declarations' per year. the obama administration is currently on pace to have about 134 declarations this year which would make that the sixth highest number of declarations within one year since 1953. if you reflect for a moment in terms of what has happened this year, most of us cannot recall many disasters occurring. the country has not had any hurricanes yet. we have one building in the atlantic in the last 24 hours. we have not had any major earthquakes. .

i have case studies and ohio is one of the case studies because i call it an honest approach to emergencies. they do a fantastic job to centralize to the local level to make sure that everyone from the individual to the state government is really doing their part in fighting off this idea of federalization. as the director at the management agency, and nancy mandates natural disasters pitch she administers the condi and

program and overseas disaster recovery in mitigation efforts. she has been the director since january 2005. she is in her fourth year of stewardship and doing a fantastic jo in the fall of 2008, sheik -- c accepted her elected seats -- she accepted her elected seat. she has taken our role and done a very good job in trying to spark the conversation of roles and responsibilities of the state and federal lubber -- letvel. nancy served as the director of operations where she was responsible for emergency preparedness training, exercises, planning, training, and prepared miscreance in the

state's emergency operation centers during disasters. she retired from the national -- of ohio national guard. thank you for that service to the . . splush. . . clultive pief clear e. it is a pleasure to talk about this particular issue because it is something that we struggle with in the emergency management community. it is certain -- certainly something we struggle with as a nation.

this is balanced by the effects of the glut and in ohio and nowhere near the magnitude of the petrina or click on the west coast. as i was thinking about what i wanted to say today, i reminded myself that ultimately the emergency management community has three priorities. there are pretty basic. we sometimes get lost in the mining and cleaning and other issues that our priorities are pretty basic. the first priority is to protect property. to try to the best of our ability to protect the properties that are citizens own, that they live on, at that they rely on by sending their children to school and said expecting police and fire departments to respond. -- and expecting police and fire departments to respond. the second is to minimize the impact when the disaster does occur. whether it is a man-made

disaster, a nuclear power plant at the end, a flood, a fire, a tornado, a hurricane, the goal is to minimize the impact when it does come. finally and most importantly, the ultimate goal is to save lives. whether we do it in and minimizing the, a protection of comic invention note, the goal is to save lives and protect property. we do that in emergency management with what we do use -- with what we used to call court cases. -- core phases. we plan and execute and prepared to respond. then we respond when needed. recall at the national guard when it is appropriate, we call at the department of national resources, we bring in epa. we work in support of local authorities in emergencies but at the state level we prepared to respond and then respond when necessary.

if further necessary, we reach back to our at copartners and they assist us in the response of a disaster. once a disaster response is over, we recover. we bring in federal dollars right now that help us recover damaged infrastructure and help people replace the losses that they have had as a result of the disaster said that they can begin important points, they can begin the personal road to recovery. either the -- neither the federal or state government have to resources to make anyone whole. it is to help people on the path to recover. we mitigate. the simplest way for me to illustrate mitigation is we move people at of the flood plain, we tried to minimize the risk, minimize the damage when the inevitable a curse that mitigating. finally, the fifth in the newest

is prevent. some would say prevented mitigate are the same. i do not agree. prevention is a separate activity. we are used to dealing with prevention in the terrorism realm, but preventing can also extend beyond terrorism into natural hazards. it is biggest in mitigation. it is different and mitigation. -- it is bigger than mitigation. so once we understand the court faces, i would suggest we need to -- so once we understand the four phases, i would need to -- i would say we need to a riot at a common understanding. what is risk? of what is risk in a higher

versus risk in california vs. risk in florida? i had someone say it is risk from what to what? in ohio we are not at risk from a hurricane, although we did have the driver working last summer. it is really just a big wind event. we are not at risk from hurricanes. we are at risk from tornadoes and floods, potentially a residual risk of the new matter for it -- new mavericks' faults. other states do not have that risk. they may have a different risk. one of the most important factors as we develop capability is understanding what the risk is in that jurisdiction. because the risk in columbus is not the same as the risk in southern ohio. they have a different risk. they have a bigger risks sometimes in southern ohio from flooding along the river.

today we have spread the risk of evenly, and we have planned for the risk evenly. not only does that cause problems with sustainability, it causes a problem with the teeth. -- it causes problems with fatigue. once we understand our risk, from what, to what, we need to understand what actions we want to occur as we develop the capability. who do we want to do what? and what role do we want fire to play? what role do we want police to play? what role do we want emergency management to play? what role do we want the public to play, and what actions of the public and all of those other organizations take? i talked about roles, and i

think that has been a challenge for us quite frankly. what role should the federal government play in emergency response? is it the federal government's responsibility to come to a high yield when we have 10 homes that have significant impact? i can tell you that if it were my home, i would probably say yes, but as a steward of government resources at the state level and hopefully a steward when i need to be in partnership with my several partners at the federal level, that is not realistic. it is not defensible, it is nonrefundable. -- it is not fundable. i am going to keep coming back to the role of the individual, because that is really where it all starts.

i am going to talk about required resources. once we have identified what we want to build into does and what their risk is, what kind of resources are we willing to levy against that risk? what kind of resources are our elected officials will lead to levy against that risk? there are very few states, i guess there are couple, better still in the black, but i will tell you that ohio is not one of them. we have had to make very difficult decisions about what resources we are willing to continue to fund, and what products we're willing to fund and what projects where to put on the back burner until the funding rebounds and zero high- yield. -- until the funding rebounds in ohio. that is the hand we are dealt with and the hand we have to play with right now. sometimes we forget about that in all levels.

we create an expectation as we look at the risk that we think@r ohio. i think understanding the required resources to dedicate, to devote to meeting that risk in planning for that risk is

something that we struggled with. it is something we do not get, i do not think, have to come to grips with as an organization, as a profession, as a nation. finally, ultimately, what is the outcome? what is the big outcome? is the outcome that ohio has the capability to and evacuate the entire 11.5 million people to indiana? probably not. i am sure indiana and not be happy if we did that. we could go to michigan. that would probably cause all right. i am serious. i am joking a little bit, but i am serious because sometimes we forget what the outcome is. all of those points have to be factored into the outcome. is it realistic? is a defensible? is a sustainable? is it based on risk for that jurisdiction. that drives with the outcome, i believe, is.

you cannot lose sight of the other factors because quite frankly to will build a house of cards. the house will crumble when the resources fall away underneath it. i want to talk for the next 15 minutes or so and then take questions. once we have done this and identified the risk and derived and a mutual understanding, we have talked about what actions people need to take and at what levels, we have talked about the resources that are required to sustain the actions, ultimately lead to the outcome we're hoping for a, then we need to talk about how do we build that? had to rebuild that capability? - how do we rebuild that capability? i want to go back to risk. because risk today and the

identification of risk has been one of the biggest challenges we face. i will tell you from my perspective that building, and i will say this at the risk of some friends in the audience to probably do not disagree me, developing plans based on scenarios may not be the most effective way to build capability. because at some level a flood is a glut is a flood. -- a flood is a flood is a flood. a building collapse will cause the need for specific capabilities, but having the building collapse because of tha faulty structure or a deliberate act of terrorism may not be as critical to building the capability as having the ability to do search and rescue.

when we look at building capability, rather than look at scenarios, we look at impact. we look at a building collapse and the ability to go in and to search and rescue. we look at swift water rescue. the ability to pull people off of risoofs whether it is called- no matter what it is caused from. i am concerned when we begin to build some areas that we lose sight of the overall capabilities that we're looking to build. i would suggest again that perhaps building capabilities based on an impact may be a stronger foundation than building to 15 separate scenarios that have competing and have intersecting impacts. pricing realistic guidance is a

challenge we face. -- i think building a realistic guidance is a challenge we face. the challenge needs to be clear an guidance needs to be clear, realistic, understandable, measurable. i am not saying the federal government alone. alone. individual roles to play. the guidance that comes down to the state probably does not need to be the same detail as the local level. depending on the event and the capability, the guidance may not be the same level of detail. i, on the other hand, do not need to know how to fight a fire

here. i do not need to know how to publish a boat to do swift water rescue. i do not want to know how to fly a helicopter, so the guy did spiffy is to be specific and tartabull and actionable depending on who needs to perform the action. -- so the guidance needs to be specific and targetable and actionable depending on who needs to reform the action. right now we are facing tremendous deficits across the nation. we need police officers and fire departments active every day. we know we're going to have crime in five years. we need schools to educate our children. we need to continue to make sure that our infrastructure is as sound as its impossibly be. all of those things are competing with disastrous

response and emergency management. what we need theives -- what we build needs to be sustainable at all levels. at the same point, the requirements that the federal partners levy on state and local governments need to be sustainable and there needs to be a recognition on the part of our federal partners that there is a cost to sustain them. i can buy a fire truck for a local jurisdiction. i can buy a boat for a local jurisdiction all with the many of my federal partners. can the gas it, can the polio and it? -- can they put oil into it? we need to look at the entire picture, not just a piece of the picture. >i am talking about measurement.

how do we measure capability? what does that look like? is a sustainable. we have a lot of different measurement tools out there. all of them challenging. all of them tend to measure things and not true capability. i am here to tell you i did not know how to do that, but i know that we are measuring rhino is not necessarily capability. i do know that that is something that fema is actively involved in with new leadership. it is a tough issue. it is difficult to measure something that is inherently subjective until the hurricane comes. and then you find out whether you plan, train, and all the right stuff. -- then you find out whether you plan tned, trained, and

bought the right stuff. public accountability. in the 14, 15 years i have been in the emergency management career field, i have seen a shift from personal responsibility to personal expectation. from the when the hurricane winds begin to blow, clean out your bathtub and fill it with water so you have drinking water, to win the hurricane threatens and the winds began to blow, find out where fema will deliver food and water. we cannot survive that. as a country we cannot survive that. we have to begin to remind ourselves as the people of personal accountability.

it is my responsibility to take care of myself, my family my dog, my cat, my mom who lives down the street, and the lady that lives next door. i believe that is my responsibility. i believe it is your responsibility. maybe not the cat, the doll, and grandma. it is your responsibility. we have lost that as a culture. we have become a culture of entitlement. within hours of an event, the question is where is bema? where is my check? where is my water, food, and ice? it is not sustainable. it is not defensible. i think we need to change the culture. i think we need to go back to a message of personal prepared and is an expectation that to the extent possible, people take the time, the energy, the money to prepare themselves and their

family so that they do not have to wait on fee much to come in on their white charger and fix the day. -- so they do not have to wait on fema to save the day. i want to talk about honesty. i think that we need to be honest and transparent at the elected official level about what is sustainable and appropriate. that is not easy. i will tell you if we have clear guidance, if we have clear measurement, if we have clear tools, and we are honest and transparent about it, it actually works. i will tell you a quick story on why i feel that way. in ohio in 2005 in january, we were going through the largest white-bread disaster that we had

gone through since the blizzard of 1978. we had two thirds of our state declared a state of emergency. i took over as a director at the emergency management in the middle of that event. we had the ceremony passing of the blackberry at 11:00 that night. i became the director. that disaster just grew like molasses, like a paddle a pudding. we picked a counties here. we picked up counties there. we ended up picking counties that had two or three homes with minimal impact because it just grew. there was not a good sense to say does this make sense? if someone came in with a declaration, then we just added

them to the federal declaration. i walked out of that that spring and said we will never do that again as long as i am director. we created guidance. i said what is clear? what is realistic? what is on this? we used a small business administration agency only decoration guidance, which very simply is 25 homes or businesses with more than 40% loss. now i will tell you, 40% loss is more than you think. that is about 12 inches of water on the first floor of the flat home. 6 inches of water does not get it. it has to cover the outlets. we have had disasters where people came to us and said we have 60 homes, 12 inches of water on the first floor. did not cover the outlets.

they were minor. again, i am absolutely not discounting the impact on those individuals. if it were my house, that is significant, but there is a level, a measure of personal responsibility. we created this guidance that said 25 homes or businesses, more than 40% uninsured loss before we will ask not only for and declaration, but if we have a federal declaration and we want to ask it to be extended to pick up counties, those counties that will be added have to meet the 25 homes or businesses. we will not have another disaster where we have accounted declared ford to homes with minor damage. -- we will not have another disaster where we have two homes with minor damage.

i was told i@@@@@@@ to, but the guidance is clear.

we had -- now they will come to us and say we had 17 homes with major damage. they know what the criteria is and they will ask for a federal disaster declaration. they do not ask for state disaster declaration because they understand with the criteria is. i fully believe if we develop clear criteria, we adhere to it, we are honest about it, we are transparent with the criteria, the people will understand that. it is not always easy. but i think it is the right thing to do. that is what we've done in a hot meal. i certainly could not talk about building capabilities if i did not talk a little bit about funding. -- that is what we have done in ohio. that is the challenge and response to any disaster. the reality is most of the united states has what i would

call recovery disasters, and they are not easy to get. they should not be easy to get. in a high of population is 5.5 million. i think we need to meet the per- capita when we come to be enough for a declaration. -- when we come to fema for a declaration. we do not have these declarations very often in ohio. in my history in 14 years and lots of disasters, we have never really had that need. there needs to be a mechanism for a way to recognize and to allow fema to focus on preparing

for the truly catastrophic disasters, hurricanes, the west coast earthquake, preparing for the truly catastrophic disaster is at the same time providing a mechanism for states and locals to recover from the disasters that the rest of us have. i am not willing to say it is just the states' responsibilities, because the states do not have the funding to do that. we do have an expectation that when a disaster is large enough to warrant, there will be funding available, but i do think we need to create a mechanism to relieve the burden from fema of having to respond to the smaller disasters and create the capability at the state level to do that on their behalf. whether it is 8 block program or another funding mechanism, i think that would relieve fema of

a tremendous amount of pressure from responding to the disasters that do not need the full force of our federal partners. the challenge in that is there has to be a mechanism at the state to be able to deliver the resources. my recovery program, probably not a lot difference for most states, -- probably not a lot different for most states, has seven people. those people administered millions and millions of dollars to local government. they work with fema to administer grants to people that have been impacted. if the states assume the responsibility, then there has to be the recognition that they need to develop the capability of doing on behalf of fema.

it is doable. i think creating this is doable, creating a path to relieve the administrative burden on fema is doable and it is something as a nation that we need to explore. ultimately, if i go back to the goals and i go back to the responsibilities, if i end on any note, i want to end on the notes of personal accountability and responsibility because i truly do not believe the more we push the responsibility to somebody else, the worst are -- the worse off we are as a nation.

and it is far faster, far more effective, far less costly to drive the ability to respond to the capability, to act down to the lowest level possible. with that, i would be happy to take questions. [applause] >> i am from the congressional quarterly. i have a question for you. it goes along with what you were saying, and earlier this year at

a conference secretary of peloton nil -- napolitano talk about the public perception. she said that fema is not a first responder, but she said the common misconception is that in an emergency fema is supposed to be there first. you talk about that. if i was wondering if -- she also said that should locals be unable to handle the emergency, then the state comes into handle the emergency. do you think it is important to change the public perception of fema? >> absolutely. i think she's right on target. some of that goes back to recognizing the roles and responsibilities and the importance of building the capability at the local and state level so that when fema

comes in as a responder, they are coming in all ways in support of state and local. i think between 9/11 end petriand katrina the pendulum shifted. that they would be there within hours. >> just to be clear, you agree that fema is not the first responder? >> i agree. >> thank you. >> corrine a rowlands at the heritage foundation. -- carina rawlands. i am so glad to hear you talk

about personal responsibility. when it comes to disaster preparedness, i am wondering if you could talk about -- i do not know if there is anything to could said that if you could adjust the aspect that of the one hand people do not want to do anything for themselves and expect the government to step in immediately, and on the other hand it act like @ -- nothing ever will happen, especially when it comes to terrorism preparedness. if you go out of your way to prepare, they act like you are paranoid. i remember in 2004 when tom ridge talk about the possibility of biological effects -- attacks to go on by the duct tape and plastic sheeting. i am the only person that i know who went out and bought the duct tape and plastic sheeting. "bottled water at home. i have cat food and first aid kit. ieveryone thinks i am slightly

wacky for being prepared. how do we get people out of this idea of being crazy if you have this debt to be prepared? -- how do you people to understand that you are not crazy if you are prepared? >> the risk here in washington, d.c., is much higher than it is going to be in columbus where i am from, or perhaps other northern ohio where it is moral in nature. -- rural in nature. anyone who lives around the chemical facility, i almost guarantee has that's taped and plastic sheeting because they have been trained on what to do if something would happen at the chemical facility. the challenge is identifying risk in such a way where people feel they can act on it. and what they are acting on is

appropriate. it has been so squishy to date and the risk has been described across the united states and that has caused people to either -- i am not saying that you did it at all -- sometimes overreact and get very fearful or more often they underreact and get fatigued by it all. we have turned it -- we have heard it too often so the disregard of the messages. >i am glad that you got your dat tape and plastic. >> homeland security today. i am wondering if you might elaborate on the block grant concept. >> i do not really know

practically how what would work. i think that part of my point is if we have an event in ohio that meets the threshold for a federal disaster declaration, cienbehalffemafema brings in a s resources and spend an enormous amount of money to assess the damage and provide funding to the local government to recruit -- recoup the cost. that suggests to me that it is something a state could probably do with the right resources. if there is a way to eliminate the joint field office environment that requires fema to bring in 100 people to manage the grants and shift that responsibility in a defined and

are visible way -- and au ditable way to states. that at the end of the day when the inspector general comes and we all agreed that funds were used appropriately and relieve the burden from fema from having to come in and set up this very large, elaborate joint field offices. does that answer your question? i wish i had the plan, because if i did i would take it to fema. >> i am jim gilmore. the former chairman of the advisory panel on homeland security. we were established in 1999, and a and we are the originators of the ideas that national -- natural disasters in terrorist attacks should be responded to by local responders first.

i think we originated those ideas. largely it was because of a fear that if this became exclusively a federal first responsibility that inevitably in a major catastrophe we would end up with the military intervened and controlling. our concept was more of the local responders. then i am going to ask you how we change some of these perceptions. let me point out where we got to predict how we got to where we are. there is a fundamental belief that it is a federal responsibility on almost any disaster. mark we have seen that it region we have seen the -- we have seen the katrina disaster. then you have his political opponents encouraging that.

)s@ @ @ @ n r@ @ @ @ @ @ @ @ @ i'm reminded of the mayor of new orleans who basically ab soxed himself and setted where is the president and nashville government, which, of course, the national press loved. >> if gouring to change all this, wo how would you sth we take charge of the american people.

what i would suggest is probably not realistic, but i think that is the right thing to do. that is up to all politicians to own the responsibility and be honest about the responsibility. that is probably not realistic, and i understand that. i do not know how we will ever change that perception without someone at -- florida did it. the florida government didn't predict the florida governor did it. -- the sort of governor did it. -- the florida governor did it. that is the kind of honesty and transparency we need to strive for.

in reality, with our political system that may not be something that can ever occur, but i think it needs to. i think we're doing our citizens a disservice by doing anything else. deegan there is a task force meeting on the homeland security advisory and i would be interested about your thoughts about changes. one of the other things is prepared this for small and medium businesses. are a large portion of our economy is small and medium businesses. when a disaster strikes and they are the most vulnerable. any advice on changes in that system? any advice to you on how to be engaged with small and medium businesses and working on disaster preparedness? >> i will start with the easy one first, a color-coded system.

if we're going to have a color coded system, we need to recognize that yellow is a new green. we are now at a heightened state, it and we were on september 10, 2001, and we need to recognize that. if we're never gone to bat to blue and green, why are they there? -- if we're never going to go back to blue and green, why are they there? we need to start over. i think probably very similar to what most of the people that have impacted on the color-coded system would say, we need to get rid of green and blue or recognize that we have new greens and blues. it needs to be targeted and actionable.

when we go to orange, what does that mean? i like to use my mom as my measure, because she knows just enough from listening to me to understand some of the issues, but perhaps not enough to know everything i know, certainly. so when my mom says i am not orange, do i need to fight the tape and plastic sheeting or worry are at orange what do i need to do? -- or we are at orange, what do i need to do? there needs to some action beyond the more vigilant because it does not really sound actionable. ithat is probably my answer on the color-coded system. the second question, can you remind me? small and medium-sized businesses. that is a huge issue. right now the only thing

available is through the small business administration. it is a loan, not a grant. every disaster we have that has sickness' -- that has a significant impact on small businesses, how you recover a business, you end up with a chicken and egg kind of thing. i will say that one of the things i have been excited about which the new administrator of fema and the direction he has gone, we need to figure out in disaster recovery mode how we as business and we did we as government can help businesses reopen so they can help the community recover. he has a wonderful story that i really took to heart of outstanding in the walmart parking lot in delivering ice,

food, and water to people in the walmart parking lot while behind him stood the building and the business that could sell the ice, food, and water. i think we need to shift the way we look at business in order for that to happen. we need to stop as a government asking what can you do for us? what can you sell s? what can you bring to us and instead say what can we do for you to help you do what you do and provide your resources to the citizens? >> if i could build on the political aspect. you in ohio had to change the political calculus there in order to implement your risk

management methodology on homes, and you commented that you expected political backlash, but you did not seem to have any. is there something to learn their from your perspective on how your state shifted that dynamic, and do we need to go about this on a state-by-state basis? the national approach -- i agree entirely, it is too hard a row. we can have the national risk- management conversation because we would never have a consensus on that. what did you learn from your shifting of the paradigm in what might other states learned from that? >> i will go back to clear and consistent guidance. we actually have a primer that we developed with pictures that says if the water is this high, it is minor. it is this high it is major.

if it is that high, it is destroyed. we did it to the governor's office and new governor when he came in. what it did is created a very clear measuring tool, and in fact, i used the example with the community with the 60 homes, their director recognize, as difficult as it was for him for him to tell his citizens they did not meet the guidelines, he knew what they were. he understood it in was able to convey it. public assistance is a fairly easy criteria for us to be at the state level. it is a very clear criteria. i know that in order for a high of to get public assistance declaration -- ohio to get public assistance declaration,

we need to get 14 million. if we get close, we certainly may ask for a declaration, but it is a very clear criteria. if it is clear and understandable inconsistent,-- and consistent, then i think people are far more willing to accept that then if it is very subjective and it does not make sense. i will also tell you i have had to revisit that several times when we have had smaller disasters, but so far it is held. -- it has held. >> piggybacking on the last question, the fema

administration has expressed reviewing the national disaster plan. >> part of the challenged with individual assistance disaster declaration tends to be very vague guidance. i think as we go back to the 25 homes or businesses with more than 40% loss, that is a requirement. it is very clear in. you either have it or you do not. part of the challenge with the fema disaster declaration is it is not as clear. any time it is not very clear, you have so much subjectivity that what i would not ask for an ohio, is maybe something another

state would ask for. what happens at my level is perhaps we have a tornado. tornadoes are covered by insurance. it will make a huge impact on the national news, but most people have when coverage on their homes if they have any kind of mortgage at all. we had a tornado that met the criteria. 90% insurance coverage. they did not meet the criteria. we did not ask for a declaration. another state, another large community had a very similar tornado, ask for a declaration in fact got it under the same condition. this was years ago. the challenge that creates is my political officials are looking and asking why did you not ask? if they got it, how come we did not? i am faced with either doing the right thing and potentially

losing my job or doing what i know is the expected thing that may not be the right thing. that is probably the biggest challenge right now is guidance that people understand and that is clear and consistent be applied across the nation. -- consistently applied across the nation. >> ohio has very few decorations in any given year. compared to oklahoma has lots of desperation because of all the tornadoes declared. lots of taxpayers' dollars going out of all-in to the federal government -- lots of taxpayer dollars going out of ohio and

into the federal government. how to deal with a system where as long as the federal government pays, incentivizes the moral hazard issue, there is always lots that happens in oklahoma. there are huge spots i the company that have very little risk, but will pay for year after year with tax dollars. >> how do you deal with that funding issue and continue with some other mechanism having a federal pay. that's question one. related to that is -- could you speak just a second about whether or not we should move away from grants, where in the

beginning, you negotiate the outcome. rather than this annual grant nightmare that i was involved in and all that fun stuff. >> certainlily, i need to be clear. i do it the way i do it in ohio because i think it's the way it should be done in ohio. i don't want to suggest that another state may not do it correctly. i think that -- i hate to go gak to clear and consistent guidance. i don't care if it's ohio, nebraska or omaha, nebraska. you are simply not going to get

the declaration. the challenge with this soft criteria is that it is so subjective and at risk of political pressure because the guyed answer isn't clear. that addresses some of the differences and declaration numbers, perhaps. if i look at the actual data and the challenge of ohio paying for sdas tur that's occur in another state. if we look at something like a cooperative agreement or block grant, that may be away to address that, perhaps. i don't know, matt.

i'm not sure how to get it way. they don't have the tax base to pay for all of their own disasters whether ohio and illinois. second question was cooperative agreements. this is a new idea. here are our five projects. they measured whether we could do these projects. cooperative agreements work really well. that is a great way to get to an outcome focus objective as opposed to hear is your money, tell me what you are going to do with it. we'll come back and tell you whether or not you met any

outcome. . throughout your talking mention capabilities.ng i just wanted to get a sense for your thoughts on the development of the target capabilities list and the transition between version 2.0 and 3.0 as well as potential challenges you may have faced with the interchange between the state and localities use of certain capabilities versus the government's use of esf? >> i am going to take the last part of your question first because it is a fairly simple answer. most they use emergency functions.

most states are in line with the national response framework. was that your question? [inaudible] . .

turkic capabilities -- target capabilities or a step forward. they are challenging the use and are challenging to understand. in some cases, although they are an attempt to measure capability against risk, i think we are still probably always to go but we are certainly beginning that process, looking at the risk, tiering the risk based on the type of population and fret that it is, and developing the property capabilities to respond to that threat. i think they're very difficult to plow through. my eyes tend across unglazed and get lost in the details, but it is a great path forward.

we developed tactile -- technical advisory capabilities. we thought they were appropriate in ohio and those advisory committees -- multi disciplined -- they come together and they have -- we created tiers capabilities list. we have one capability statewide but we're building to specific levels based on the population and the threat. we have water rescue and urban search and rescue capabilities. my hot button, sustainability -- and that jurisdiction, once they had of all that capability, sustain that capability without a continuing influx of federal dollars. if we are reliant on federal dollars, they will not be sustained. i believe.

>> you talked earlier about the fact that you did not think that's an area-based planning was -- that scenario-based planning was the best way to go with. what would you replace it with? the administration is reviewing its entire system. >> i would continue the planning path that we iran, which is an emergency support functions, looking at impact rather than scenario. again, and i would suggest that is what target capabilities -- that is where it began and where it is continuing. if we look at what we need to support whatever risk or threat we see, it does not matter -- it

does not matter what the scenario is. they are great in a military and firemen and the cold war, we could plan for the cap and look at north korea and plan for north korea. they don't help in a civilian and firemen, particularly one made up of all the diversity of the united states. that is the challenge. if we look at the impact, i think we are developing a stronger plan. >> thank you. >> thank you. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> relief fantastic comments and questions. thank you for attending and look for our next project speaker that we like that have. we want to get this out of washington in into the hands of

the people who need it. thank you. jo coming up on c-span, a look at tensions between north iraq. 7:00 eastern is washington journal looking at the latest news storeies and more on

healthcare. c:y this is just over an hour. >> good morning. thank you for coming out.

>> the growing tensions and conflict mounting between these two bodies. most of you got a copy. he is here to discuss it with us today. use is the deputy region for the independent organization dedicated to conflict

prevention. researching throughout lebanon and syria. executive director and prior to that as the project and part of the palestinian group in are you malla. he is also the author of two books. behind the labor and women's movement in the occupied territories. a little bit of housekeeping, we've some upcoming events. talk about agriculture. next thursday, we have the

current american ambassador to kuwait talking about kuwait and gulf affairs. p guest. thank you

it's not the green line that skiflted between 1991 and 2003. if you look there, that is north iraq and you can see the line there to the north and east of that line is the kurdistan region as it was between 1991 and 2003 rngs to the south and west of it is the rest of iraq. this green line was the cease-fire line that came with

iraqi troops withdrew not succeeding, they withdrew. that was the green line. in 2003, kurdish forces crossed that green line into areas that they claimed were a majority kurdish. for this, we need to see a second map of territories.