behind the decision to give most of this in terms of a stimulus in terms of either a state and local government aid and relief for infrastructure. host: one of our twitter comments now is -- do you agree with that? guest: i have always agreed with that. here's the problem. tax breaks to corporations assume that corporations need the tax breaks in order to create jobs. but they will not create jobs until they know that there are people out there, consumers who are going to turn around and buy things. without enough consumer demand -- and this is the core of the problem right now. consumers are 70% of the u.s. economy. without enough consumer demand, companies will not invest in new jobs. they will keep the tax breaks.

or they're going to amass a lot of money. this is exactly what has happened with big companies right now. they are sitting on a pile of money. they're not turning it into new jobs. they are either using it to expand operations abroad where there is demand for goods and services, or they are using it to buy other companies. we are seeing a bit of a boom in mergers and acquisitions right now. or they are using it to essentially buy back their own shares of stock as a way to boost their share prices artificially. but they will not and are not going to use their cash, whether the cash is from tax breaks or any other source of cash, to create jobs until they know there are enough -- enough consumers there. that is that we have got to crack. that is the critical issue with regard to getting a vigorous recovery. host: robert reich is a

professor of public policy at university of california berkeley. former labor secretary under president clinton, and author of an upcoming book, "aftershock and the economy." thank you for being with us this morning. we appreciate your time. that does it for today's "washington journal." we will be back tomorrow morning at 7:00 a.m. eastern. thanks for watching. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] . .

meanwhile, the u.s. senate is working on a bill to extend long-term term insurance benefits and tom coburn leading a g.o.p. call for pai as you go rules for makeup for the measures cost. democrats say it is emergency spending because of the high unemployment rate. the senate is just underway and you can follow live coverage on c-span 2. tim geithner has a speech today

before the society of newspaper editors convention and we will have that live for you at 12:45 eastern and the u.s. house coming back from spring recess will work on suspension bills that gets underway at 2:00 eastern. economist magazine held a con freps on the future of innovation recently. scholars discussed how they think innovation can preserve resources and if the climate is favorable for new ideas. it is from the university of california in berkeley and runs about an hour. steve has mentioned that we might be automobile optimistic, i have to make a confession, and that is in berkeley, i am hallucinating right now. as some of us might know, i'm not ha hawaii luce nateing for psychotropic reasons, it is because of jet lag. i am about to fall asleep. i hope my fellow panelists will

not usher me into the arms of sleep but i want to call all of you at once, a right of the institution here. we have a group here but everyone may know joey eat tow, more of a cyber destination than he is an individual. >> it is sort of a latter day version of of "the flying dutchman." >> all great innovative people. i will do a combination of standing up and sitting down when i feel a wave of fatigue hit me.

20 years ago, there was a phrase coined "culture is destiny." what was meant was the idea of values an explaining why singapore has gone from a mosquito swamp to being one of the region's most powerful economies, an extraordinary success in the world of international development. around the year 2000, they asked what was the most important invention or innovation of the 20th century? does anyone know what the answer is? >> the air-conditioner. >> yes, the air-conditioner. the reason why because it allowed people in humid climates in the third world to do white

collar work as much as people in temperate zones as people who lived in manhattan or paris. our panel today is taking a similar approach and asking the question, is there an innovative place? what do you think? >> the answer is yes. i think places -- maybe we don't use the word culture but anyone who has spent time in silicon valley knows that it feels different. there are ways in which things move more quickly. there is venture capital you can get access to quickly and there are people that fail quickly and learn from one another. it is a sort of institution in that place that makes it very different than anywhere else in the world. i think you are going to find that in places that are very innovative, you're going to find that they have distinctive

characteristics, institutions that could be culture. >> you could argue that one of america's biggest assets in the global innovation game is, in fact, culture, that we have a culture that is still relatively forgiving of failure and encourages the wild eyed dreamer in their garage to make something new happen. there are very few places in the world where that culture is deeply rooted. you might find it in tel aviv and just a few other places. the fact that there are dozens of countries now trying to pursue national innovation agenda presents us with a really delicious situation, because in a way, every one of them is an experiment about how to make use of indigenous assets which typically don't include a culture of innovation and entrepreneurship and risk taking and how to round out those sides with other kinds of strategies. we are seeing in a way a whole set of sots societal level experiments about how to make large scale renovation a

reality. >> i look at all the technology as tools that allow you to mine for the differences. so one time i'm setting up a fund in singapore that has an incentive plan that they copied from israel and an egyptian entrepreneur working with koreans to buy content from taiwan and my investors are from our arabs an europeans and japanese, and i take the mobile technology from the wierd petri dish that is japan and i can drag the arabs and americans and chinese to singapore. that's why i chose singapore. it is easy because of the air travel and internet and the air-conditioning, yeah, i mean,

dubai without air-conditioning? that's the point, making the diversity much more interesting. >> it is more interesting and accessible. >> let's talk about accessibility and the issue of the world being flat. as we know, it is not. it is a fear sphere, balanced on the back of a turtle. the issue really is to build context of an an value added component. our innovation system is intrinsically filled with barriers to entry, which we have an opportunity to reduce, so if we want place to matter, we have to understand that the people in those places matter, as potential innovators. we were talking earlier about solutions to big systemic problems, well, the solutions are the people, so the context of those people in enabling to innovate better is going to be the solution to those problems. >> i think we're all in

agreement, thank you very much. >> thanks for coming. >> a guy asked a question this morning about what people would recommend for innovation, and i think the towering people around the world, in the ways that you are talking about, reducing the ways to innovation around the world is the way to do it, and then you go through capital markets, go through labor markets an skill, go through institutions and different sources and start working on that. obviously, the one you know a lot about is the legal intellectual properties protection. that's a huge one. >> i think that what you are saying is that innovation is form laic. >> i don't buy. that. >> i don't either. i think everyone wants to be another silicon valley even though there won't be another even though they know the characters of silicon valley.

>> the scores go up high on every ranking and we were asked -- we had separate projects. i don't even know what john wrote in his report but my report, they have this model, great connectivity, education system on every measure. they're great but they're stuck, and the reason they are stuck is they have a product industry that is losing market share and they have a telecommunications industry which is one company which has followed the structure of optimizing for product innovation and they're good at cranking out low-cost devices really fast. i'm sure there is somebody in here that could tell me there is a lot of innovation in nokia but up until now they have had a hard time getting that into the product. they have market share but not so much because of innovation in product as much as cutting the price. >> can i add one thing?

i think thatter is wren deputy is important -- i think that serendipity is important. when you look at the rise of different regions, it is unintentional, if the japanese had chosen gsn instead of their own version, you wouldn't have such growth. the fact that japan crippled itself gave opportunities to other countries. the account buyers in medical are sued zahn ease -- sudanese. you will find groups of people that develop expertise or innovations happen in certain place, but not usually because of some great government program. it is because one guy talked to some other guy, but i think what is important is to embrace the serendipity. the trick, and this is about innovating in agile developments. you see it in a dating site and

then figure out what is successful. >> not everything you said is incorrect, you but i will invite john to tell you. >> and this isn't even jet lag! we're on the verge of having spent time on what in a sense is a theological debate. i heard steve's comments about the the need for some degree of coordination at the macro level, so one of thing interesting this about the fact that there is easily 2 dozen plus countries that have national innovation strategies an explicit programs is these are experiments with varying controls an direction in creating content for innovation. china employs what i elsewhere refer to as a brute force strategy where they are investing in engineers an ph.d.'s like there is no tomorrow. this guy who runs innovation for szechuan province i met in tel

aviv. it is is a pretty legit place. it is 47 million people. that's 3% of china's population. they have 122 technologically and scientifically oriented universities. i mean, that's the scale at which things are moving in other parts of the world, so not all of these are enlightened approaches. some of them are more directive or portray a certain nostalgia for the industrial era of production and counting things and output and things of this kind. others are more enlightened and all are searching for in a way of balance that in a sense enables the bubbling up of innovation while at the same time creating the right amount of direction to enable larger scale things to hahn. i mean, a lot of things that we are talking about about the global problems on the table here are not going to get solved because two steve jergenson's each write $5 million checks to passionate entrepreneurs. these are wrafs of innovation at

scale that require sustained investment and require human capital invest many, that require deep knowledge of opportunity spaces. healthcare reform is not going to be solely a function of garage-style entrepreneurship. it isn't going to happen that way. of course, then the theological debate is but government has no role in innovation or shouldn't because we got to let this inscrutable process take its course and of course the other extreme is well, you know, we have to have enlightened, you know, public sector policies to be able to drive the reasonable allocation of resources and service this big audacious goals. of course, the truth is usually somewhere in between, in my view. >> richard, to you. >> you're mulling. i can see you mulling. >> i'm mulling, yes.

i think the challenge is to back off our need to look at big picture issues and instead look at granularrizing the need to enable the innovative capacity of diverse entities whether they are frirms or individuals and ask what are the entry barriers that exist now and can we eliminate them or reduce them substantially? i assert that there is an fundamental misstanding of the innovation process that we have stigmatized. those of us who have managed to get through the entry barriers all get together and talk about how wonderful we are and wouldn't it be great if there were more like us, but the truth of the matter is we are working in a black box. ken, you wrote an excellent piece some years ago in which you used the metaphor of maritime navigation. frankly, where we are in innovation now is very much

between, say, the 1400 and 1700's, the merchant empires were, were complete lack of understanding where the continents were that they would bump into in one place to another. we are in that situation with information information, whether it be scientific literature, intellectual property, regulatory information. this is aggregated, extraordinarily opaque, poorly articulated from data into knowledge and decision support. we lack the cartography of the innovation space, and in the abc sense of that, most players can't compete and the risks are too high. when the costs are lie, only a few of us -- when the costs are lie, only a few of us get to play. we have to engage democratization of that process and that is by cartography. >> especially innovation for the schools' information. i want to say that part of the reason we are so rudderless is

that we watched over the past century countries like japan, and then taiwan and korea all catch up, and they all caught up and grew very rapidly by catching up to the technology frontier that had been established elsewhere. now, you know, we're basically all at the same place, and the only kind of innovation that's going to happen is by building knowledge on different knowledge and having knowledge interact to solve new problems, and -- >> the innovation play was different, considering japanese innovation and american innovation, the original innovation of japan was low-cost innovation. the second phase of that was volume, so toyota doesn't need to invent the car. all they have to do now is

innovate a scale which is to mass produce at high volume. intel is incredible. pressure requires great quality but then great scale. >> innovation is spreading out like a thin layer across the world. all countries are catching up. that may be true in certain scientific and publishing areas where transparency are part of the academic culture or sort of collaborative culture but there are other areas of which i think some societies maintain some distinctive capabilities. we have tim brown from idopes which writes about designs and you have countries becoming user centered design platforms using the country as research capabilities to be able to say how do you take next

generation's vital services to another level? what is government 2.0 really in terms of experience and so forth, and while the knowledge may spread out, you know, in terms of what you can read and cog that tively appreciate, the skills or finger knowledge of doing that work are still, in some respects being spread out in a less efficient way. >> >> i think joey was on to something important, which is innovation is different in different places and one of the things that the fiberoptic cable and sort of the new technology has allowed to do is tap those pockets of steel around the world. the thing that i'm concerned about is you said you can get the innovation and then scale it. my concern is that thinking about development broadly, now it is like thinking about africa or latin america or places we were talking about this morning.

you can have a lot of innovation there that starts but then doesn't scale because of the barriers that exist to innovations. >> that gets back to theology a little bit. i'm an internet entrepreneur so basically on technology side. it allows people to compete and engage in information, an each layer of friction allows participants in places that don't have as much capital and also, the amount of the average investment, the amount of money you need to get in, to get to a minimum viable product has gone down significantly, even in the last five years. what that does is it changes the nature of venture capital. i can go to africa and start making best bets.

the next player we need to strip out the friction from is the legal area. it is more complicated with copyrights but part of it is mapping it out. it gets easier once you lower the friction and lower the cost. i do think once you lower the cost and go to scale, like i was in beirut and this is a car made where a kid then said you could send your phone plug into and i was thinking about people being able to text money to each other, and there is such a correlation and there are so many people. >> i agree with you, because what you're saying is as we hit obstacles like the intellectual property rights like the patent system, we push them back, because those innovations will

not scale, unless you can start to remove the obstacles. that's why i think what you are doing is really important. there are a lot of innovative capabilities. the reason a lot of maces are still poor is that there are a lot of obstacles. some of them are political and some of them are institutional. >> in dubai, you can't get permanent residency. 90% of the people are ex--pats but they kick you out when you lose your job. i can get passports for anybody in singapore. in singapore, all the way to north africa and japan is in striking range of six-hour, 7-hour flights and they make the visas and the government has support so that is an interstructural play. >> singapore was not included,

so what happened? >> singapore is doing a lot of stuff on the venture side that is experimental and new. they are looking at how did israel figure it out. i think it is an experiment. i don't know if it is going to work, but for me, some of the barriers i fine in africa and the middle east, i can solve them by drag dragging the entrepreneurs to singapore for a couple of years where there are lower barriers to setting up. >> they have been talking about transforming themselves for the past two decades and every time they send a venture capitalist to say we will innovate. maybe we should go back to culture because culture does get deep. singapore did a really good job of creating mass production sort of capabilities, and they have a workforce that is really optimizeed in that, and it's going to be hard for them to switch. i think the younger generation and maybe mixing it up will help. >> another ingredient in singapore, however is, government policy. they have now an explicit program which i'm sure you have

come across, which is the whole notion of polishing the jewels. the operating assumption is that we're not going to have a lot of edgy-style california entrepreneurs among our indigenous population but we want to attract those venturers once they germinate and add extra layers of value and attract them to set up r&d or regional headquarters. the other thing that is interesting about singapore's strategy is that they are explicitly targeting the global class, all of you have an invitation to move to singapore. there are plans to increase the population of singapore dramatically. they are not known for their reproductive rate, and they want to get the population up, because there is some benefit from scale, you know, even in the global innovation economy, and the notion is that the quality of innovation will follow some degree of quantity, some degree of arbitrage, who want their jewels polished.

>> i'm skeptical. >> i'm just saying what their plan is. i'm not saying it is going to work. >> i don't know if polishing jewels is a good recipe. it is a recipe for optimization. >> that speaks to the point of all country are operating on the basis of where they are, culturely and historically and socially, so for sing singapore, that may be a rational move to build capability for the long term, given the fact there are not thousands of people eagerly awaiting the opportunity. >> only a bank threat or a big company with a lot of land and collateral is going to get a loan and ideas are not respected. entrepreneurs don't come from the right families then they won't be looked at. >> people come to me and say how can we get immigrants to come to

japan. let me finish my story. i think it's very hard. it's not in the people. what happens is you bring indians and chinese to the u.s. you put them in silicon valley and they marinate in in and they take advantage of a set of institutions that exist, so if you take the same people and put them in singapore, they won't innovate necessarily. i think you have to recognize that it goes beyond individuals. >> another data point, because i tried singapore several times. the first time was 12 years ago and i did a deal with an incubator and it was a failure. this time i'm setting unfunding in singapore. the test that i did about six months ago, i e-mailed about a dozen friends and said would you be willing to move to singapore and set up companies, and more than half of them said yes, an i've already got a dozen people

moving to singapore to start funds and set up operations and things like that. it has become a much more livable city, and i have been hanging out there and it is really different than it was five or ten years ago. >> for me, that was kind of what tipped me, and for me, that's important, because if i feel comfortable moving my team to singapore and i see a bunch of my friends moving to singapore, it gives me -- it is still a beta event. it can fail but at least now i'm willing to take that bet and if i'm willing to take that bet, maybe more will take that bet. it is about critical mass. the question is whether they get to critical mass in this round, because it is another round in it. >> the old story is the drunk looking for his keys under the streetlight? because he can see. there we're talking about singapore where we have a problem with meltdown, a water resource problem, social equity problem, looking at singapore because it is a cool model won't

help us because i don't think it scales vertically. no, no. you're the moderator! >> everything you heard so far on the panel was wrong. singapore is a model for something else. singapore represents everything else in the world except not silicon valley and it's not london. a country that is somewhat off the grid that starts from a very modest place like being a commercial stop for drunk western sailors and in 50 years has become one of the most developed economies that rivals the best european cities. singapore actually is, if you will, a study of what can country can do, but also the limits of innovations if,

indeed, culture is made. ready. ok. i see a gentleman there. i see someone there and there. why don't we ask all three questions, and then leave it open for the panelists many. >> hi, i have twin 7-year-olds here in california and i'm moving out of the state but not as far as singapore. you can dance on tables as i saw you do 7 years ago, but let me ask a flip question, what do we need to do to raise our children here in the united states or more specifically in california to take advantage of the

innovation and entrepreneurials and so forth. >> invest in the public universities! >> invest in journalism! >> and the infrastructure! i think we know -- california has been so innovative for so long. the sad thing is that we're squandering it. we have great public universities. we used to have great infrastructure. i don't think it needs a lot but it needs investment, and i think, you know, it depends on where you live whether your kid gets the good education or not. that is the sad part. if you live in the right place, they're going to be raibzed to be creeb ative and think outside of the box. i live in oakland and you may get shot at while dropping your kid off. it is not actually that complicated for california but somehow we have a horrible political state stalemate here

that i would take the petitions to sacramento. >> it is not just innovating and entrepreneurship, it is for whom? your point about education is critical in k through 12, the young he education and think why would one be stimulated to be an entrepreneur? is it for greed in one's self or seafns community and sharing? if it is not unreasonable to ask that we do more and more education, which includes infamy. once we do that, we have the incentive system built in. >> cultural intelligence, language skills, ability to operate effectively outside the borders of the continental united states would be very helpful. >> on your point, i think that the u.s., japan and china are the worst, because their markets are big enough to only care about their own. for the reason why singapore and finland and somebody smaller are innovative in their own way is that they have to start global, an some of the best companies in

silicon valley really don't care about the rest of the world. there is no ebay in japan because they didn't put their energy there. i think that the global perspective is important. institutions could help that, and there is so many global people here, it is really kind of a wierd question to me why people don't look at the global market more frequently. >> but this community servicing i want to underscore. if there is one thing i could change about u.s. education is understanding the world and understanding your sort of part in a community and building that community. i certainly didn't get that as a child. >> i teach entrepreneurship for engineers at u.c. berkeley and i went to a conference that is like a u.n. for developing worlds and it was basically described as 116 nations at singapore. how can we get a few more singapores in the developing world? >> let me also add one thing

that is relevant. there is a representative from singapore here, and if he #weurbs to -- if he wishes to use a statement, he can use my microphone, but if not, he can run away if he doesn't agree. i'm kidding. s also, i'm going to disclose this of why he is enemy territory -- he is a graduate of stanford. >> i'm sure that many of us feel that way. >> when i stood up i didn't know what i was getting into. let me talk about the discussion today. i think singapore, as a country, we're clear that the model we adopt is unique to our history,

unique to our size and our opportunity. to say the singapore model could be applied to america or say rwanda or any other countries, i think you have to say that with a pinch of salt. it is really unique to us. all the things about culture and these things these are valid points that we have in the back of our minds but the fundamental issue is how do we build a comparative advantage to be able to sort of direct resources in a targeted, focused way? to adopt the model of the united states or only the american model where things bubble from the bottom, that is an idea. that is almost like maybe to a certain extent a myth that we all aspire to, but it is a myth that maybe in singapore context we cannot afford. if we were to do that, we don't have the critical numbers to allow it to bubble up, which when john said the idea to do

large scale renovation that falls between the bubbling up and i guess from where i sit, which is where we do long-term investments into r&d innovation, which is what i'm personally responsible for, it is about building that greenhouse, about building that platform to allow all of that serendipity, and bringing in some of this capital, so various places that this will work but coming back to rich's point that singapore could now stand up to the world's great challenges, i think we all agree with that. >> it is a period in history where there are promising practices and provocative examples but when the public

sector tries to figure out what to do, you have to read the book, not write the book. when we look at israel and rwanda, which now has a national innovative agenda which is more sophisticated than the one on paper in the united states, by the way and other interesting places. >> there are two books you should read, one is john's book. >> i think i just want to inject that we are all in general agreement that every place is different. no mace will never become the next silicon valley or the next singapore. you will be a hybrid of something and you have to build on your own unique culture and institutions and and your own people, which will remove these barriers an obstacles. one of the things i will say about actually the national innovation system is a category i have a lot of trouble with anyway. first of all, innovation happens at a sub national level, it

happens in local places. that's the first thing. the second thing is it hasp been used to think of as input. if we add more money into research, add more money into education, this and this, add it in, it chains the model. it is now how innovation happens. fin hand has poured so much money in, and i'm not sure that they have that much to show for that much money. it takes more than just pumping in resources. >> that's why you can't read somebody else's playbook. >> right. >> when i talk to entrepreneurs, i think you said competitive advantage. what is your unfair advantage? you have to have an unfair advantage to win. they may sound a little rude, but as a country, what you need to think about is not that we have all this money, but what is it about your country. what is it about your country and how you leverage your unfair advantage. each has a different thing, and it is geopolitical, it is cultural, it may be pliable.

>> i think it's not about winning. it is about prospering. we are talking about the unfair advantage to win. in d.c. you have to have an exit strategy so winning matters but as a culture, we have to prosper. that is not the same as winning. we have too often rewritten the lexicon about winning, about competition, but in australia i asked them what their goal was in the grain industry and they said to have a competitive industry, and i thought that was dumb, do you want a prosperous industry, but if they focus on winning they don't necessarily prosper. they are not using collective and cooperative opportunities. >> part of the problem is we have these two models floated around for the 20th century. free the market, let it do whatever competition calls for. then we can have the state come in and drive us toward

community. neither has worked well. we are looking at public-private partnerships to grope a model that works somewhere in between. i think that's really where the big gains will be as we start to identify not a recipe for everyplace but what kind of barriers need to be removed by the state, what kind of investments need to be made by the state, where can you back off and let people interacter is wren dip tusly. >> i called on a gentlemen there. i will try to get as many voices from the audience as possible and allow the panelists to make concluding remarks. >> my name is jeff and we talked about nations and individuals. i would like to ask about the role of corporations. is there any advantage to actually, if you're starting a new company, to just being geographically co-located or does it make sense to hire the best talent no matter where they

are? >> keep that in mind. other questions? >> i see one all the way back there, that gentleman there. i see a young lady right there. take the mic first, if you haven't, please. >> ok. i know that we have been kind of discussing this a little bit, but in between the two generations, specifically my generation, i find that cross disciplinary curiosities in my generation are viewper seeded by the specializations of your your generations. can we talk about that a little more. >> emily, you get an a-plus! thank you for that question. >> the gentleman there, tim o'reilly, o'reilly media. we talked about the visa movement here in the u.s., entrepreneurs saying we get vees visas for

people who will start a company here. >> yes, i support it. >> i'm here with innovation american, the wharton school of business, but i also happen to be consulting professor at national university of singapore, and an interesting comment that i felt would go with the discussion you were having that i am part of a program that singapore has, the university has where they send approximately 200 undergraduates, all juniors in engineering and science, they send them around the world to maces where there is lots of innovation going on. they are a partnership in stanford and in philadelphia, because of the biotech center we are, are and their job somebody to spend a year working in an innovative entrepreneurial company of less than 50 people and bring that knowledge back to singapore to set up that way of thinking in the country, so it a

section of what you were talking about as well as the education component of it and the whole thing, but as a country, they're doing that. >> emily gives you an a-plus, too! >> i met one of the students in that program. i think it is a great idea. >> i want you to see where the red blinking light is. you have 30 seconds to make your final summations. >> i think one of the biggest barriers of the three countries including the united states has been innovation, and the visa deal is great. we have 7 investors got the specialty with singapore government. only one of them is singaporean. in japan, all of them would be jan knees n america, all would be american. that is one of the unique things about the little government they have there, is that they're very inclusive of culture and that is

the hub-like nature that makes us successful. i think it is hard in the united states, aside from the cultural part, you don't notice it when you're here but generally speaking it is really dive cull. that would be my 30-second talk. >> innovation suggests capabilities which nations, societies, regions, companies, individuals could use in a lot of different ways. it really does make a difference to put a bow on this whether you're talking about a finite game in which innovation becomes the hammer for battering down the competition, versus an infinite game where the game is successful when everyone wins. we really don't have a mod for innovation at a global level let alone a global agenda or inventory of capabilities for thinking about it as a global system. i think it is a project well worth working on. >> i would like to combine these comments. there is the concept of the

comment has been floating around but when you try to really work it, it is extraordinarily challenging. to me, the biggest opportunity is to foster a common capability. in other words, to actually build what amounts to an innovation tool kit that is competitive in a sense and open in an inclusive way and it will stimulate countless nodes of capability manifest, which is innovation. >> i couldn't agree more with all my copanellists. my education is specialized. i have a degree in political size. it is so narrow, you can't do much with it. ignore it. the future is, and you should -- i mean, this is your future, and the future, your generation, you should be crobs disciplinary. you should learn different things. the world does not break up into politics and languages.

i am in a program that is multi-disciplinary. i have a hard time communicating. we find words we use differently. we solve problems differently. forget the disciplines. forget their narrow methodologies. think about what tools you need to solve the problems you are fleeing to solve. break out. >> i hope that you do thank me for joining our panel for this discussion. thank you. >> the second day of the nuclear security summit continues in washington. president obama addressing the meeting this morning announcing that the next security summit would take place in south korea in 2012 during some of his opening remarks a look at them now from this morning's session.

good morning, everybody. i'd like to get started. let me begin by thanking all of you for your par 'tis participation last night. i thought it was a very important discussion. before i begin, i want to take this moment once again to acknowledge the ter bible tragedy that struck the polish people this weekend. we are joined today by a distinguished delegation from poland, led by ambassador kucheki. mr. ambassador, all of us were shocked and deeply saddened by the devastating loss of president kaczynski, the first lady and so many distinguished civilian and military leaders from your country, and this was

a loss not just for poland, but for the world. as a close friend and ally, the united states stands with poland and poles everywhere in these very difficult days, as an international community. i know that we will all rally around the polish people who have shown extraordinary strength and resilience throughout their history, so our hearts go out to your people. our thoughts and prayers are with them. we join them in this time of mourning, and so if everybody is agreeable, i would like to ask for a moment of silence to show that solidarity and to honor those who were lost.

thank you. it is my privilege to welcome you to washington and convene this historic summit. we represent 47 nations from every region of the world and i thank each of you for being here. this is an unprecedented gathering to address an unprecedented threat. two decades after the end of the cold war, we face a cruel irony of history. the risk of a nuclear confrontation between nations has gone down, but the risk of nuclear attack has gone up. nuclear materials that could be sold or stolen and fashioned

into a nuclear weapon exist in dozens of nations. just the smallest amount of plutonium, about the size of an apple, could kill and injure hun he dreads of thousands of innocent people. terrorist networks such as al qaeda have tried to acquire the material for a nuclear weapon, and if they ever succeeded, they would surely use it. were they to do so, it would be a catastrophe for the world, causing extraordinary loss of life and striking a major blow to global peace and stability. in short, it is increasingly clear that the danger of nuclear terrorism is one of the greatest threats to global security to our collective security, and that's why one year ago today in prague, i called for a new international effort to secure all vulnerable nuclear materials around the world in four years.

this is one part of a broader agenda the united states is pursuing including reducing our nuclear arms arse aresenal and stopping the spread of nuclear weapons and will bring us closer to our ultimate goal, a world without nuclear weapons. over the past year we are played made progress, and at the united nations security conference last fall we passed resolution 1887 endorsing this agenda, including the goal of securing all nuclear materials. last night, in closed session, i believe we made further progress pursuing a shared understanding of the grave threat to our people. today, we have the opportunity to take the next steps. we have the opportunity as individual nations to take specific and concrete actions to secure the nuclear materials in our country, and to prevent illicit trafficking and smuggling that. will be our focus this morning. we have the opportunity to

strengthen the international atomic anier jy agency, the iea, with the resources an authorities it needs to meet its responsibilities that. will be our focus at our working lunch. we have the opportunity to deepen our cooperation and strengthen the institutions and partnerships that help prevent nuclear is of materials from falling into the hands of terrorists that. will be our focus this afternoon and we have the opportunity as partners to ensure that our progress is not a fleeting moment but part of a sustained effort. that's why i am so pleased to announce that president lee has agreed to host the next summit in the republic of south korea in two years reflecting their leadership and i thank president lee and the south korean people for their willingness to accept this responsibility.

i'd ask president lee just to say a few words. >> thank you for inviting me to this historic summit. thank you for supporting south korea to host the next summit in 2012. i assure you that i will do our best to make this summit a success, so i will see all of you in korea. thank you. >> thank you very much. [applause] >> so today is an opportunity not to make pledges but to make real progress on the security of our people. all this, in turn, requires something else, which is

something more fundamental. it will require a new mind-set that we summon the will as nations and as partners to do what this moment in history demands. i believe strongly that the problems of the 21st century cannot be solved by any one nation acting in isolation. they must be solved by all of us coming together. at the dawn of the nuclear age that he helped to unleash, albert einstein said "now everything has changed, and he warned we are drifting towards a catastrophe beyond comparison. we shall require a substantially new manner of thinking if mankind is to survive." that truth endures today. for the sake of our common security, for the sake of our survival, we cannot drift. we need a new matter and manner of thinking that. is the challenge before us, and i thank all of you for being here to confront that challenge together in partnership.

with that, i would ask that we take a few moments to allow the press in. >> president obama earlier today. we hope to have a news conference at 4:30 eastern, the president considering a new nomination to the supreme court, and here are recent discussions from the supreme court historical society. it runs about an hour and 20 minutes. >> good evening. i'm ralph lancaster, the president of the supreme court historical society. before we begin tonight's program, those of you who are regulars will know i'm about to tell you to turn off your cell phones. turn off your pda's. turn off your blackberries. turn off whatever they call it

and please don't just silence them or put them on vibrate because there's something about the sound system in this room that they will interfere with, so please turn them all off. those of you who are regulars at these programs, you also know that there is a regular regime that we follow i'm going to talk about the supreme court historical society and then there will be mandatory introductions of these people because you probably don't know who they are, and then we will get to the real reason that you're here, assuming that both of them stay. welcome and thank you for coming to the first lecture in the society's 2010 leon silverman

lecture series. the society's chair for whom this series is named, leon silverman, is here tonight, with his daughter jane, who has just been admitted to practice before this court, and we're also pleased to recognize my immediate predecessor and president emeritus frank jones who is with us tonight with his daughter, annie. again, thank you for coming. the society -- here comes the pitch, ok, but brief -- the society began sponsoring lecture series on special topics in 1993, and each of these lecture series is published in the society's journal of supreme court history, creating a lasting historical reference point for our members. once again, through the generosity of the members of the court, this program will be filmed by c-span and will be

available for viewing nationally shortly after tonight. the society, as you probably know, places special emphasis on its mission to educate the public about the court. one facet of our educational outreach efforts includes our programs with street law, inc., including the supreme court summer institute, which will be held again this year here in june and regional programs that have been held in atlanta, st. louis, new york and this year baltimore. we have several teachers who have attended those programs who are here with us this evening. the society also is currently in the process of updating two of our significant reference books. supreme court justices illustrated biographies, and supreme court decisions and women's rights, both are prub

lished by -- published by congressional quarterly and will be availablable this fall. a new volume, court watching, and an an anecdotal history of the court, also will be published by congressional quarterly and due to be fub published next year in 2011. these programs and our publications are made possible by the jen generous support of our trustees an society members, board of trustee members and of the donors, many of whom are also with us this evening. end of pitch. .

tonight we have a two-fer. have two justices. it is different from the typical lecture. justice scalia and justice breyer are going to have a conversation about theories of constitutional interpretation, and james duff will ask questions to move the matter

long. part of the mandatory and to cut -- part of the mandatory introduction. -- james duff will ask questions to move the matter along. >> justice scalia received his law degree from harvard law school. he practiced law in cleveland, ohio until 1967. he joined the faculty of virginia law school. in 1971 he became counsel to the white house office of telecommunications policy. he served as chair of the administrative conference in the unites states from 1972 until 1974. -- united states. he was appointed the assistant attorney general in the legal department of justice in 1974. in 1977 after one half year of being resident scholar at the american institute here in washington, he returned to

teaching at the university of chicago law school. in he was visiting professor at the law schools of georgetown and stanford universities. president ronald reagan appointed justice scalia to the court of appeals for the district columbia in 1982 and four years later, on june 24, 96, president reagan -- 1996, president reagan nominated him for the supreme court. his confirmation was it in 1986. almost 24 years ago. s. tephen breyer receive -- justice stephen bryer received his law degree -- breyer received his law degree from stanford.

in 1967, he began his academic career at harvard law school where he taught until 1994. he also taught at harvard university's kennedy school of government from 1997 to 1980. -- he also served as the chair of the judiciary committee. president party in -- president carter appointed him to the u.s. court of appeals and he became chief judge in 1990. he served as a member of the u.s. sentencing commission from 1985 through 1989. on may 14, 1994, president william clinton nominated him to serve on the supreme court. he took the oath of office on august 3, 1994, nearly 16 years ago. finally, our moderator is james c. duff.

jim and graduate from the university of kentucky honors program or he was elected to phi beta kappa. he received his j.d. from georgetown. he served as chief assistant to judge rehnquist. from 2000 until 2006, he served as managing partner of the washington, d.c. office of a law firm. he has taught constitutional law at georgetown since 1999 and has served on several boards, including the capital hospice foundation, lawyers committee, and the supreme court historical society. you know i get that pitch in somewhere. he is currently administrative officer of the united states courts. the man immediately to my left

is justice breyer, a man in the middle is james duff, and the man on the far left is justice scalia. [laughter] now why did you laugh? >> because i cannot see them -- but they cannot see me. the reason i was conferring over there is i think we should move the whole show over to the bench. [applause] lest you -- >> bless you mistakenly was assigned responsibility for the -- lest mistakenly assigned responsibility for the seating arrangement, my wife said no one will be able to see them. i said to jennifer that no one will be able to see them. and she said "oh, yes, they

will. " -- "oh, yes, they will." >> i am going to sit in my regular seat. >> all right. pitch done. introductions' done. we are ready. gentleman, began. up sabers. >> thank you. i think -- i think -- thank the society for allowing my class to attend tonight. this is enormously educational. i have mixed feelings. i feel like i am participating in a beer summit without the beer. i am -- bier summit without the

bier. in a course in georgetown, we have taken an historical look at cases. it will not surprise you that one of our tax is the chief justice rehnquist's "all the laws of 1." he discusses one case during the civil war concerning a decision written by the chief justice that president lincoln alone did not have the authority to suspend the writ of habeas corpus and loneliness -- only someone subject to be rules of the war. chief justice rehnquist cites editorials in newspapers from time to time that were severely critical of the decision. it is interesting to see chief justice rehnquist " newspapers, -- quote newspapers, but lincoln

ignore the decision. you have written, justice breyer, about the importance of thomas jefferson's work in the declaration of independence that governments derive their just powers from the consent of the governed. and you write of the need to trace the authority from making governmental decisions back to the people themselves, and so my opening question is -- does the public or the media's reaction enter in to your decision making? >> [inaudible] you have to train yourself to that. from the point of view -- there is something happening. would the decision is popular or unpopular.

the points is -- a point of having judicial review is to have people give a point to the constitution. enforce it as for its intense -- intent. indeed particularly when a person is the least popular person in the united states. if the answer is zero. >> justice scalia. >> same answer. i do not know any judge worth his salt that will not give that answer. whether we live up to its, that is another question. but that is why we have life tenure. we're not supposed to be fearful of telling the truth.

the bill of rights, which is the most important part of the constitution that is placed within our charge, is a validly anti-democratic document. it tells the people they cannot do what they want to do. even if they want to. without amending the constitution so one should not expect that us all the time to come out with opinions that are popular. the purpose of the bill of rights is to protect you from the majority if in some cases. >> what is important type current decisions to the views of the framers? >> well, i do not care a fig for the framers. i care for the people. i do not believe in original intent. i believe in original meaning.

what was the meaning of the constitution when people ratified it? you quoted jefferson. the validity of government depends on the consent of the governed. you find that consent in what the people agreed to. so what the people agreed to when they adopted a constitution, what they agreed to when they adopted the bill of rights, is what should govern us. the bill of rights, as -- is as i have said, in a sense anti- democratic in that it prevents the current majority from doing what they would like to do. in another sense date -- it is quite democratic. it was adopted democratically. it was the people self limiting their power. the meaning of that, whether for

example, whether it prohibits the death penalty. whether the eighth amendment's prohibits -- eighth amendment prohibits cruel and unusual punishment. there is no doubt know american voted for that when they voted to ratify the eighth amendment. the death penalty -- that was the penalty for all felonies. it was the definition of a felony. it is why we have western movies. because or stevens was -- course thieving was a felony. we would not have movies like that. -- horse feeding was a felony. nowadays things are different. people think death penalty -- the death penalty is a horrible thing, and because we think so, is prohibited to the people. that is not being faithful to the will of the people. states are free to adopt it or to refuse to adopt it, to repeal

it. but to say that there is something in the constitution that requires that they abolish it is simply -- this is not following the will of the government. >> justice breyer, you have written our constitution begins with the words "we the people," not "we the people of 1787." why is that an important distinction for you? >> i think it is interesting. it suggests where justice scalia and i are in tremendous agreement. the members of the court are unanimous in 30% to 40% of the cases. those issues are typically issues -- since i think that is our job -- that patrol the boundaries of our constitution. we are there. it is a document that creates a

government. it was supposed to create a government that would work. and that kind of workable democracy was supposed to last a long time. but our job is to apply the words that created the government, and not just those that protect liberty, those -- although those are important ones, but to do that today. we're likely to hear cases at the boundary. otherwise, what is the case doing here is the answer is so obvious? it is hardly surprising that people do not agree. in many of these cases, where there are good arguments on both sides. what you really want to know is why in some cases are we on different sides? that is a question i ask myself. i think the answer in part is this -- and this is why. i think we both would say this

document is meant to govern people from now indefinitely, they said in 1787. so it has to last. and that we read into their intent. is there. it is what they wanted. i read it into the meaning of the constitution and how we might get there. there is where we might differ. i think when we read the language in any document, whether it is a statute or the constitution in any difficult case a judge will read the words, one. we will look at the history two -- will look at the history, drop. we will look at the tradition surrounding the words. what does habeas corpus mean? that is 3. -- we will look at the history, two. we will look at the language underlined the phrase.

-- underlining the phrase. that is five. i think we all do that. and i think if i could characterize justice scalia, he is happier when he is only looking at the first four and i am happier when i am looking at the last drop. [laughter] when i say happier, i do not mean psychologically. i think by looking at those last two things, we can better carry out that, so that this document will and fact co -- govern a changing society as society changes. i do not want to put words in justice scalia's mouth, but i think my approach makes him nervous. because i think that he is afraid i or others to follow this approach will end up

subjecting their subjective ideas, substituting those subjective ideas for something objective. he consider whether that is true or not. am i right that he is happier on the first? >> well, if there is a risk, i know a whole bunch of rights that have been found in the constitution that the people never voted for. whether you put the people of 1787 behind it or not. that is what has happened through the device of looking at the purpose of the provisions and saying we have to keep the constitution updated. it is meant to last centers.

let me address the last concept. -- is meant to last centuries. the constitution is not an instrument of change. you do not have to change the constitution in order for society to change. all you need is a legislature and a ballot box. change will occur as fast as you like. the purpose of the constitution is to impede change. take the death penalty. the fact that the eighth amendment does not prohibit it does not mean you must have it. if society does not want to, you do not need five out of nine members of the supreme court to tell you is a bad idea. individual states can abolish it, as many have in this country. it is not a recipe for change and for progress, to read new things into the constitution. my constitution provides for a

very flexible system of government. you like the death penalty? persuade your fellow citizens is a good idea. you do not like it? persuade them to the contrary and abolish it. that is flexibility. whereas once my court holds that the death penalty is unconstitutional, that is the end of the matter. there is no use debating it. it is off the stage of democracy. just as abortion has been put off the stage of democracy. there is no debating it anymore. you can like that or not like it. but do not pretend that this is producing a flexible system. to the contrary, it is producing what the constitution will produce, and that is rigidity. and the people who come here asking us to define new constitutional rights come here for that very reason. because they want the rights they are interested in to exist

coast-to-coast, in every state, without anybody going for it, now and forever. or until we change our mind. [laughter] >> of course, no one invented constitutional rights. the problem is there is a word in the 14th amendment, and also the fifth. "liberty." the word is liberty. and why these issues are so difficult is it does not define itself. moreover, in the ninth amendment, it says you should not interpret the existence of certain rights as applied in the first eight to mean that the word liberty is restricted to those. what does that show? i think it shows that the people who wrote the document -- well, they thought the word "commerce"

might in fact encompass telephones, internet, radio, even though they did not even know there was going to be such a thing. i think perhaps the people who wrote the words "cruel and unusual punishment" might have had an idea that if blogging was currently present in the navy without anyone batting an eye -- flogging was currently present in the navy without anyone batting an eye, there would be a day when it would be considered cruel and unusual throughout the world. the most well-known example i think is the most famous case in this court. brown vs. board of education. because at the time, people wrote the 14th and n and interpreted in plessey vs. ferguson -- the 14th amendment and interpreted in plessey vs. ferguson that separate and equal was somehow going to help the

people the 14th and then it was aimed at helping. certainly by 1954, it had up -- it had become absolutely apparent that what that phrase meant was two societies, and one was kept down. and the other was not. absolutely contrary to the purpose of the 14th amendment. and therefore the court must look at those words. the state shall not deny anyone equal protection under the law. the court must look through the lens of what actually happened. not through the lens of what might happen on the ground in 1787 or 1872 or 1865 or when they decided plessey vs. ferguson 80 years before, 1954. >> how are you doing? [laughter]

>> well, as far as the equal per that -- protection clause is concerned, it is the perfect example of what a see change there has been in the attitude -- sea change there has been in the attitude toward the constitution. not just in professors, but the attitude of the american people this notion of a living constitution whose meaning changes to comport with what we think is a good idea today. it is relatively new. and all you have to think about to believe that is the 19th amendment, which was adopted in 1920, which is yesterday in my lifetime at least. why did not somebody come to the supreme court and say a " gentleman -- there were only gentleman at that time -- what

could be a greater denial of protection of democracy than the denial of the franchise?" and you know if that happened today, it would happen. that is not the way americans bought in 1920. and it was a better day. what they thought in 1920 was -- we the people -- if we the people ever decide that you could not discriminate in the franchise on the basis of sex. is that what the people decided wednesday ratified the 14th amendment that includes equal protection -- the equal protection clause? the answer is very obviously no. nobody thought that the equal protection clause for bad discrimination in the franchise, not only on the basis of sex, but on the basis of property ownership, literacy.

it was an easy case in 1920. if you wanted that change, let the people vote for it, and they did. we adopted a constitutional amendment, and we're living under it now. but that is the honest way to do it. not to have the courts decide that suddenly things have changed. and by the way, the issue that's justice breyer and at -- the issues where justice breyer and i disagree are not issues of new technology, telephones and so forth. we will , the same way on those. of course you have to figure out how the first amendment applies to those new technologies. that is not a hard issue. where we disagree is on matters that existed a long time ago. the death penalty. abortion. the right to suicide, which became within a hairsbreadth of

recognizing when we said we were not yet prepared to recognize it. the one day in the fullest time, we may. those of the issues on which we severely disagree. in my view, what ever existed then is unchanged. the people knew that the -- there is the existence of that phenomenon and accepted it. if you do not take that approach by the way, if you say it changes, you of this for the purpose of the bill of rights. which is to prevent the current society from doing the stuff it wants. let's take cruel and unusual punishment. let's take flogging. do you think all the eighth amendment means is to thine own self be true. what if some future generation thinks thumbscrews are okay? will god bless them.

-- well, god bless them. can a change in only one direction? flogging can be bad, although it used to be good? but thumbscrews cannot become good though they used to be bad? that is incoherent. the only way you can preserve the value of the bill of rights is to give it a constant and changing meaning, and not water down, for example, the right to jury trial. now water down to write to be confronted with the witnesses against you. those are two issues -- not to watered-down the right to be conferred -- confronted with these witnesses against you. even though modern society might say you do not need so much it jury trial. oh confrontation clause. phooey. as long as the jury is supported by some issue of -- indication

of veracity. the only way to spare those values is to go the way the people voted to maintain them, to give the words the meaning there were understood to have when people ratify them. >> first -- what do i disagree with? [laughter] i disagree that 1920 was better. it was better for some people. for a lot of people it was a lot worse. i disagree -- i agree that you have to go backwards and forwards the same light. you have to admit the theoretical possibility that people use application about you could change in different directions. that is a theoretical question. i have never seen it come up. basically where i disagree the most is for the exam -- examples given show that what you have to do in interpreting the constitution is to look at what

the basic values were that underlie the free expression of religion, etc.. those cannot change. no one is talking about changing those. no one is talking about inventing a totally new right. we are talking about is talking about applying a constant value to changing circumstances. and if you do not, i guess you're going to say that's flogging is still ok. and if you do not, i guess you're going to say that the original thoughts of plessey vs. ferguson was still right. of course you have to change that. because circumstances change. and as far as what the framers wanted -- to use a trivial example to illustrate the point -- imagine congress after the statute. it says, "all endangered species

will be protected." and what at that time, if you asked members of congress, everyone would have thought that the -- the checked in the box is not in danger. years later, we find it is in danger. they enacted some words that expressed a general purpose. even if they thought the application was not what it turns out to be, you have to follow their general purpose or the value of underlying the constitutional provision, applying it to circumstances that they thought might not even exist. that is the name of the job in my view. and if you look at the particulars, and i like that example about the confrontation clause, because it sets in motion -- is it really

skeptical. therefore i think it is a pretty good example. -- it is really skeptical. justice scalia and i wrote that when it says on in the constitution that every defendant will have the right to confront his witnesses, that is basically what it says -- confront the witnesses. what the framers had in mind was sir walter raleigh. who in fact was convicted on the grounds of some affidavits, some affidavits that people gave to a group of users in the house of lords, and they never showed up themselves. blackstone and everybody else that he knows by heart all said, " no, no, we cannot have that." -- "no, no, we cannot have that." we have to have the confrontation clause. suppose if you cannot produce

them, you cannot introduce the evidence? that sounds pretty good. but suppose the reason you cannot confront, the reason you cannot produce the witness, is she is dead? and moreover, this defendant is on trial for killing her. he killed the witness. now can you introduce a prior statement saying that man, my husband, threatened me with death? hmm. that is a tough one. in where i think the majority there try to find the answer, and i was in dissent, is we are going to go back to see what blackstone, no, not to see what they thought in 16th century england, and they can up with an answer, and that was keeping out. i looked at that and i thought that is not the answer. in fact, i cannot figure it out, to be honest.

ok? now what do we do? at that point, i say, if you want to do all of this, let's have nine historians on the supreme court. let's not have nine judges. i will be frank. i do not know the answer to that question. i do know we have to have answers. i try to use something else. what use is the basic purpose of the confrontation clause as applied to sir walter raleigh and then try to figure out the particular incident, whether it does or does not fit within the basic value or purpose. i do not see a good alternative. that is where i think we disagree on a lot of matters, and why we so often come up on opposite sides. >> deciding on purpose is a very general principle. how general is the purpose? do good and avoid evil?

you realize the amount of discretion that leaves a judge? what is the purpose of the confrontation clause? i assume it is too poor -- to produce a fair trial. so do i say the constitution requires what ever i think will produce a fair trial? of course not. you cannot run a constitutional system that way. as for justice breyer's statement that he does not know of any situation where we have retrogressed by applying the living constitution, the confrontation clause produces a perfect example. that area of the confrontation clause, which he has no problem with, that he must produce the witness if he is available and alive, he must be in court. that is what it meant. nonetheless, 25 years ago, the

court held in an opinion written by chief justice rehnquist -- i am sorry -- the court held that all the confrontation clause requires is that the hearsay evidence to bring in -- mainly you bring in the third person that says,"well, i didn't see the murder, but joe told me he sought in he said the defendant was the guy that did it." that is hearsay. all the confrontation clause requires, he said 25 years ago, is that it bears reliability. we overrule that case, i am happy to say, 10 years ago. what we said is the only reliability that will satisfy the confrontation clause is confrontation. because that is what the clause said. and there was not any doubt about what confrontation meant. so do not think this is a one-

way street that "oh, we just give freer and freer. there are more and more rights. there are more freedoms." you can gain rights and you can lose rights. it depends on which rights justice breyer likes and which ones he does not like. [laughter] >> no, it does not depend on which ones i like. it depends on which ones are implicit in the frame. if you want to know why i think something, i have the job of writing it down. i have to write it down in a way you can understand it. if you think i am wrong, you can complain like mad, and i will see it in the paper. either way, you can judge what i have written. that is one reason i think in a democracy it is better to look to the purposes, although i do

think purposes are hard to figure out. particularly in complicated statutes. try the language. they are really complex. often, you can find purposes. more often than not by a longshot. if you want to try something difficult, try looking at the history. that case that justice scalia is talking about. i will take purpose every time. the reason purpose -- since i see route lancaster here -- what is this funny? -- since i see ralph lancaster here -- why is this funny? there are a couple people flying in a loon in maine and they are lost. a sea of former and ask where they are. -- flying in a balloon in maine.

and the sea of farmer and they ask where they are. in he says ""you are in a balloon." why is that funny? because it ignores context. this is the considerable problem justice scalia sees in using purposes because the context of the case in the context of the statute in the context of the constitutional provision tells us, more often than not, how to use it. so i think there is not much a problem, although sometimes they are tough. but at least not as tough as the history sometimes when you try to explain that and deal with it in a complex of fact-specific matters. sometimes it is tough. even if it is equal.

and you explain, anyone able to read is probably able to follow it if you take the time. the ball is not hidden. that is one virtue in a democracy, even if the others were not, which they are. >> that is a new point. i have never heard you make that one before, stephen. that judging is best which is most readily understandable by the people. is that it? >> my god. >> let's do whatever produces a good result. when our opinions are reported in the press, they do not give the details of section 323. what we're really wrestling with, trying to reconcile a lot of different provisions prodigious tell you who won.

was a the impoverished widow? or was it the insurance company? and if it was the widow, ray. it was a wonderful decision. and if it was the insurance company, that terrible court. it is always going to be like that. it was like that in most famous jury trial in history, where the very clever lawyer says,"oh, yes, you may take a pound of flesh, but if any blood goes along with that pledge, your bond is forfeit." -- if any blood goes along with that flesh, your bond is for the." is a sorry. brilliant judge, everyone says. if you authorize some to take a pound of flesh, you implicitly authorized to take whatever blood goes along with it. if you ask someone to harvest wheat on your land, if you say

"i said you could have the wheat. i did not say you could trespassed." who cares. the good guy antonio one, the bad guy shylock lost. everyone praises portia. the notion that it is all wonderful way for judges to decide cases if people can understand what they say -- i have never heard that before. and i certainly do not agree with it. it is why we spent years in training, because this stuff we have to wrestle with is different. it is difficult. it is arcane. it is not something within the region of everybody. moreover, you talk about purpose as though -- as though the purpose is clear. what is the purpose of the due

process clause? no person shall be deprived of life, liberty, or property without due process of law? to begin with, i am not as unsure as you are about the meaning of "liberty." taking away your life, taking away -- putting you in jail, fighting you. life, liberty, or property. what -- not only have we stretched it to include all liberties, and it is up to west to in -- and it is up to us what is the liberty, but we have ignored it is only a guarantee of process. does not say you cannot take away the right to abortion. -- it does not say you cannot take away the right to abortion. it just says you cannot do it without due process of law. never mind. we want something that achieve the purpose. what purpose? what are we achieving? making a happy society?

doing whatever the particular judge thinks makes for a happy society? it is just not that simple a matter to decide the purpose of a particular provision and then say, well. anyway. >> if i did make this argument before, i wish to think about it. [laughter] i think i would add here -- the use are analogous to purpose. if you really think the word liberty is just talking about prison, that is an idea for the newspapers of the country, because the court has long since read the word liberty to encompass the freedom of speech, which has nothing to do with going to prison. there are a lot of other provisions. press. so forth. i think we're beyond that. when you talk about statues, you

talk about the purposes, and it is -- i agree. is sometimes soft. -- it is sometimes soft. i will be the target if you want, but i do not sit there and think "let's do the good." even aquinas' did unpacked the meaning of the word "good" into a bunch of specific things. what you are using that as shorthand for is let's go back to a statute, and what you mean by doing good is it doing what congress intended. that is what good is in terms of statute. it is also in terms of the constitution, as i say, but the basic value is underlying each piece of the other provision. some now, is it so tough -- so now, is it so tough to figure out what purpose congress is trying to achieve? sometimes it is, the very often

it is not. -- but very often is not. there is a good reason for doing that. if i were to think of anyone, it would be this -- we live in a democracy -- if i were to think of a main one, it would be this -- we live in a democracy. as long as you type -- try to interpret the intent of congress, we enable congress better to do what it is trying to do. and if people see what is trying to do and discover it is working well or it works badly, they know who to hold responsible. the people who voted for this law. and therefore, we are acting and conform with the system that allows people to hold their

elected representatives responsible for what happens as a result of their law. as soon as we abandon purpose, as soon as we no longer make the effort to see what congress wants, as soon as we're trying to work with words to guide us -- we know not what -- well, then we can reach all kinds of results. and in the result of something working badly is "well, he did it." now try to hold them responsible. one kind of the system is consistent and coherent democracy. the other kind is not. and i am speaking in general, because of course you can find countervailing examples. in general, i think that is true. and i think that is the better reason for filing purposes. >> do you want to say something, jim? >> i do not want to get in the

way. this is wonderful. how'd you discern the purpose of congress? >> the only way i know is the text of the statutes congress has enacted. to tell you the truth, no law has a single overriding purpose. the limitations that the bill contains are as much a part of the purpose of the bill as its general objective -- to help the poor, to provide health care, whatever. the limitations are as much a part of the purpose. you cannot tell the limitations except from the statute, and chasing around for purpose is, i think, a fool's errand. we are not governed by the intentions of our legislators. we are a nation of laws, not of men. the famous phrase from the massachusetts constitution. we are governed by the laws that

congress enacted, not by what they intended when they adopted those words. and the only way to remain that government of laws is to interpret laws on the basis of what they say and not on the basis of what we think. and we can imagine a lot of things that we think congress had in mind. i did want to say -- we have some members of the press over here. i am sure they're very upset to learn that the freedom of speech in the press depends on the due process clause. i thought you could not take away the freedom of speech or the freedom of the press even with the process of law? those rights are guaranteed in the first amendment. you cannot take them away. period. >> the first amendment says "

congress shall make no law abridging the freedom of speech." it says nothing about california. the reason it applies to california is it has been incorporated through the word liberty and the due process clause. i think that is why it is encompassed. i do not know how far back you want to go. let's go back to the articles of confederation. to go back to the question -- the trouble is to enter your question, i have to give an example. and the trouble with legal examples is by the time you get them out, since cases are complicated, the audience is asleep. but i will try. let me show you. we had a case where we were trying to interpret the word ' caught" -- "caught."

if you win your case in court, it says the right of the statue as to do with "cost." can win such a case without having to educational experts and they do not -- no one can when such a case without having educational experts and they do not come cheap. we did all you want. justice scalia's absolutely right. you can think the purpose either way. purpose -- help the parent. it will be meaningless unless you give him his expert costs. purpose -- save money. so what do we do? lo and behold, in a particular case, when congress passed the statute, as you well know, the laws and go to a conference

committee, and they report on the harmonized law which goes back to the chamber and the system for the senate adopted the harmonized lot is a vote -- do you adopt the conference report, yes or no? in this particular case there was harmonization. the senate did vote yes unanimously. 98 to nothing. as well as having the language "cost," it said this word is intended to cover expert fees. ok. i think maybe that gives us a clue, since it was signed by every senator and every representative at the conference and it passed unanimously. and so i would say, i first thought this was tough because hey, you have a purpose in either direction. by the time a look into it and found out what congress actually done, it was not nearly -- i looked into it and found out

what congress actually done, that it was not nearly as tough. and that is what i wrote in a dissenting opinion. [laughter] >> when congress adopts a committee report is about the language recommended by the committee report. congress does not in that committee reports. in next laws. -- congress is not in that committee reports. -- enact committee reports. it enacts laws. almost all of those did not include costs for expert fees. >> what i am saying is congress wanted the opposite. >> you do not know that. >> that is -- >> the only thing you know for sure congress wanted is what congress said in the legislation was passed by both houses and congress adopted. congress never adopted a

committee report. >> and now we're getting a flavor for where we really disagree. >> the me give you another example. this is a hard one. -- let me give you another example. this is a hard one. there is a statute, as you probably know, that says you can recover if someone's a government hurts you, a tort. you can bring an action against united states and recover money. this is an exception. and the exception applies where the harm to your concerns or property. i am not certain i am remembering this corrected. there is an exception where the office would take your property, say wrongfully, and have to do certain things, and then you cannot sue the united states in that section. but when you say it's as applied to, you say customs, and other

law enforcement officers. question in the case -- does that term "other law enforcement officers" apply to a prison official? or does it apply to law enforcement officers that are like customs and excise officers? that is a hard question. you could really argue that up down and sideways. i did not know how to answer that. -- you could really argue that, up, down, and sideways. who wrote it? it was an old tree this writer, and it was in the department of justice at that time. -- it was an old treatise writer. he said he copied this from something in england. and when you look it up, it absolutely immense -- it absolutely men's to concern law

enforcement and all the customs and -- meant to concern law enforcement officers involved with customs and excise. are you going to use that against me? let me make one last sentence -- see what i am trying to do. what i am trying to do, not always successfully, is to have us interpret statutes consistently with what congress did or would have wanted in order to make it easier for the government to function well. and for people to hold responsible their elected representatives. >> now, you know, to say that is what congress -- congress -- intended, you have to believe a majority in each house a new about this treatise writer in new he got it from this english than in the english king said that -- and knew he got it from this english thing and that this

english thing is said that. you really believe that? it is a fiction? nobody knew about this stuff. to say it represents the intent of congress is simply foolish. of course, what it produces is a cottage industry of legislator history. it is part of the function of k street firms in washington to rights legislative history -- write legislative history, which is carried up the hill, read on the floor, goes into the congressional record, or if they're really good, they can get some teenager to put it into the committee report. [laughter] which is not even bread -- read by the committee members, much less the rest of the house. >> again, i think only a judge

can make this kind of arguments. judges basically do their own work. most organizations in united states, do not run like judges perhaps. thank goodness. most organizations are pretty specialized. they have bits and pieces. the ceo of general motors is not know what is going on in every department, but he has a system. i worked in the senate for a while. i thought it did not work then as bad as people now think. maybe it does not work that bad. what happened at the staff level is the staff works for the senator. that is absolutely right. the senator does not read every piece of work that comes to the committee. nobody thinks he should. what he does is he relies on staff, like everyone else in the nine states -- in the united states, outside the judiciary. we do have law clerks.

most people have a system. in the system there is my goodness that staff person better be alert to the interests of and the desires of the senator for whom he works. otherwise we would never let anything get out of the judiciary committee -- we would never let anything get out of the judiciary committee without showing it to everyone. i have nothing against [laughter] teenagers] -- i have nothing against teenagers. [laughter] it is a form of system. just as a form of agriculture is a system. one thing it is not is for every senator goes through every bill. how many senators read the words of every budget bill? nobody. so what? there is a system. if the people do not like the system, they can elect people who will change it. so the notion it improves anything to say the senator has

not individually read the report or followed it or read the bill or read every word is to say that as a criticism -- it is unrealistic and it has of lack of understanding how the senate or congress or the president or most organization in united states actually work. and we have to deal with an organization that is capable of passing laws in accordance with the powers given them by the constitution of the united states, which is the whole point of the constitution. . .

the judge has to sign it. it cannot be signed and nothing the law clerk says or thinks has anything to do with the law. and it is the same thing in the legislature. that's why when a senator or member of the house is going to be absent, he has to pair his vote. he has to find somebody on the other side who's going to be absent and they just cancel each other outest. cannot tell his assistant, you know, you go and vote on my behalf. it is forbidden. legislative power is not dell

gabble -- delegateble. congress cannot say, it's too much trouble to run the district of columbia. from now on, whatever the district of columbia committee says is ok. they can take care of it. forbidden. the constitution says it must be legislation by both houses of congress and the members of congress may vote -- must vote personally. and it doesn't matter whether they know what's in the bill. they can be fall down drunk when they vote for the bill but if they take the act of voting for it, that is what makes it a piece of legislation. and too see -- to say that, oh, all of the backroom conferences with staff become part of a legislation is such a distortion of what the traditional notion of legislative power has been. the staff cannot decide the meaning of legislation which is what you let them do if you --

if you use the words in the committee report. which has been drafted by staff, in s never voted on, even by the committee. >> let's look at the logical leap here. as yourself said, what the legislative power consists of and i certainly agree with you is the nondelegateble power to vote. there's nothing in that. that says the senator himself or the member f congress has to write the bill. and indeed they don't. and now our question is not about the nondeligable power of voting, our question is, what was the meaning of that which was voted upon and with respect to what is the meaning of that which was voted upon, there's nothing in what juvee just said that requires us to blink our eyes to the institutional reality. which is there is a large complex system for passing laws

of which senators are aware. and if we want to understand what this technical meaning is in section 867315 of the bankruptcy act of 1928, we better look to see not just the words that were in front of that senator but much that went into the production of those words. and that's why, unless you want to have a totally unrealistic process in which every word in a bill becomes a bible of 40 4,000 different words to foresee every situation, you have to understand what they're driving at. and to do that you have to look to what the purpose -- to what the system was that produced those words on the piece of paper. and the committee report and the floor statements are helpful in that respect. what were they talking about?

>> you'll say that there were abuses of that. indeed there are and the answer is to learn how to work that as a judge so you don't pay attention to the abuses, so that you understand where all that's at stake is two warring parties trying to get in the score statement what they couldn't get in the bill and you'll understand as well when that snt an issue and when that legislative history is lightning and all i can say is it requires a lot of experience and you can do it better or worse but it's no hoarder han trying to work with some kind of historical thing that happened in the 15th century that was reported in the 17th century and blackstone says something about it the 18th century and i don't even know about. it ok? >> you're back to the constitution now i thought we were talking about statutes of legislative -- that was a good example. >> well, well, well. president roman everyoner caligula is said to have the

practice of posting his edicts high up on the pillars so that the people could not read it and would be fooled into disobeying it. a government of laws means that a law ought to mean what it most plausibly would be understood to mean by the people to whom it is promulgated. not what some -- justice breyer has a very exalted notion of the role of congressional staff . >> i served in that role for two years. >> i can understand why that exists. but that is no way to run a system of free men and women. the statute should mean what it seems to mean. and not what the first person to draft it had in mind. what does that have to do with

anything? the congress has too -- has to vote on a text. that is the only thing that you to know for sure a majority of each house and the president if he signed it committed themselves to. and a committee report in one house, even though there's no report in the other house and even though you have no idea what the president thought he was signing. all he has in front of him is the desk. he doesn't have the committee reports. so it is -- i thought we were just going to talk about the constitution but we're really into legislative history. >> we are. i want to be on record that i'm not caligula. i would post nothing on the post. it's relevant to the constitution. because the real questions that come up are not something where if you only read the words you'd know the answers.

they're not like that. they're more like the word other law enforcement officers where you really don't know. and on that kind of a case, that post, in hiking it up like a flag, has nothing to do with it. what we're looking for is a way to find out. and that's where i think it's useful. >> anyway. go back to the constitution. i just don't agree with. that i think very often the words are quite clear and quite simple, how you can find a right to abortion in the due process clause of the constitution is so far beyond me i cannot express it. and even the people who agree with the outcome of roe vs. wade have admitted that the legal reasoning behind it was flawed. no, i mean, we've made a lot of decisions. once you say the word liberty is unanchored. it means whatever the supreme court thinks ought to be a

liberty. i mean, you have given the court an enor mouse power over democracy because -- enormous power over democracy because everything we read in the bill of rights abridges democracy. it means you can't vote on it anymore. it's not up to the people anymore. it must be this way. and that is simply not the road we should go down if we want a responsible seriously functioning democracy. only unimportant matters do we try to persuade each other and vote on. really significant stuff such as whether there should be a right to die, a right to assisted suicide, whether there should be a right to abortion, whether there should be a right to homosexual conduct, all of this really important stuff, oh, we can't possibly dispose of those matters democratically

by debating with each other and voting. oh, no, all of the really important stuff has to be decided by the supreme court. by deciding what the purposes of the word liberty was or whatever. what's the purpose of the word lint -- liberty? what is it? >> the constitution probably used the word value. >> ok. value. >> that's a better question. what is freedom speech about? and we know it has and there we search. it's not that tough. we know the heart of it and then if we understand what the heart of it is and the importance of political speech and so forth we begin better to understand how to apply it at the fringes. and that's a general statement and then to see how it's done, you can look at a lot of the people of the court and they're probably difficult. sometimes not. and then you'll see. i mean, there we are. that's -- what else can i say? the basic value of that confrontation clause, the heart -- there's a big difrpbls.

i'm comfortable and you're less comfortable. >> it's absolutely true. i'm comfortable with saying through an example, this is the heart of the matter. and when you get to the heart of the matter and that's what i'm after with the value in the constitution and that's what many judges have been after, that's what many, many judges have been after, and then what about at fringes? well, we'll postpone that. we'll postpone it. and then i think -- i mean, i'm characterizing you, you're better to do. that i think you're uncomfortable with that uncertainity at the fringe and you like better if you can have a clearer rule. and i would say that there's a tradition along that line and sometimes that's called for. and i think there's a tradition in the judiciary my way, too. and sometimes that's called for and that's the best i can do. >> gentlemen, we've been over an hour and we're on my third

question. [laughter] but i think our audience has been treated to an amazing evening and i've managed to stay out of the way of it. but we do have refreshments afterwards and we're most grateful that you've taken the time out of your enormously busy schedules to share your approaches to the constitution and staff. >> i think i've persuaded them. i really do. i think i've made some progress. >> it's been a great beer summit and now we're ready for the beer. smoothed over the differences and we are now one. thank you. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

>> now aren't you glad you came? i couldn't help thinking, wouldn't you love to be a fly on the wall when they conference on cases? and i also, and i think jim will verify this, there was a reason that chief justice ren quift so religiously adhered to time limitations. there's a wonderful story about calugla and his horse but we don't have time to get into it tonight. let me just remind all of you that the next lecture in the 2010 silverman lecture series will be on april 20, 2010.

professor barbara parry of sweetbrier college and a former supreme court fellow herself will explore the supreme court and the appointment process. there are still very few but there are a few tickets available. you can get them by calling the office. members of the staff whom some of you have met before, david pride, kathy shirtlive, jennifer lo wmbing e who is responsible for this program this evening, janet tramante, claire cup ofman all are here tonight. they all wear these funny little things around their necks. please feel free, please do come up and introduce yourselves to us so we can get to know you. and if you have any suggestions for ways we can improve programs, i don't think you can improve this one. but if you have ways that we can be better served the court, better serve you, and improve our programs, please come and share them with us.

we're going to adjourn to the east and west conference rooms for light refreshments and we look forward to meeting all of you there. we are adjourned. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> president obama is in the early stages of selecting a supreme court nominee. four days after justice stephens announced he was

retiring. white house officials say they expect the senate judiciary committee to hold its confirmation hearings in july at the latest. we'll keep you updated, bring you live coverage of the supreme court confirmation hearings and debate on the c-span television network, c-span radio and online at c-span.org. a programming note, treasury secretary tim geithner will appear at about a half an hour. live coverage at 12:45 eastern. and now, more about that pending supreme court nomination from a discussion from this morning's "washington journal." >> "washington journal" continues. host: stewart taylor is joining us to discuss the supreme court decisions coming up. this is from " washington journal." -- this is from "at the

washington journal." -- this is from "the washington journal." guest: justice stevens is from montana, sitting in montana. not much is known about him in washington. frankly i had not heard the name before, his obvious credential is being a westerner from montana. it will be interesting to learn more about him. host: another name that was put out there was leah ward sears. who is she? guest: a very complex woman, a chief justice from georgia who is a black woman. she is very big on steps that

help the family. she is fairly liberal on criminal-justice issues but moderate on social issues. host: after that, the governor of michigan, jennifer granholm. she was mentioned last time around. why is surname being floated again? -- why is her name being floated again? guest: governor of a big state, she has been there for a long time. there is a feeling that the judges are not enough elected officials. we do not have anyone on the supreme court that has ever run for elected office, which makes

her a serious candidate. all of these people are well qualified in terms of having the legal basis. host: janet napolitano is also being considered again this time around. what is the likelihood of her being paid? -- being picked? guest: she was one of the finalists last year interviewed by the president. the president has a high opinion of her, by all reports. she was elected state attorney general. she was a federal prosecutor. now the head of homeland security. a very impressive list. she did make a couple of gas

saying that the system worked after the near bombing on christmas day. calling terrorist acts man caused disasters. not a great laine. but i would take her very seriously. host: do those comments maker and a likely choice? guest: everyone makes gaffs. i made one month, my wife told me. -- i made one wants, my wife told me. -- made one once, my wife told me. [laughter] but it is a conversation that i am not sure that the president wants to have on national television these days.

not so much a problem of what he said with -- as much as what was going on at the time. host: the harvard law school dean, martha ammonaminno. guest: she is well respected but he has a law list of liberal positions, which -- but has a long list of liberal positions which would make for difficult to get through. i would be surprised if they chose her over kagan, who previously worked in the clinton white house. apparel with the president thinks very well of her. those are the list of

qualifications. host: we were showing be worse footage of elena kagan, who is on what people are calling the short list. along with names that our viewers are hearing. you wrote in the national journal about the supreme court short list. guest: all of the people we just talked about are very well qualified. there are -- are all very smart. they represent a good range from left of center to the democratic range.

dianne woods is not nearly as liberal as some of the liberals would love to see. judge garland is probably the most moderate of the four. vary widely respected by the bench in washington. it would be an easy confirmation. dean kagan is very well qualified intellectually. one of her assets is that she does not have much of a paper trail. people do not know what she thinks about much of anything. this does not mean that she agrees with the position. janet napolitano, we talked about her already. her broad political experience is an asset. and she is a cool customer.

>> beyond of the short list, all of the names being tossed around, do you think that republicans should filibuster any of these names? guest: i and my personal opinion the filibuster should never or almost never be used for judicial nominations. therefore i would say probably know. two extremely liberal people, i can see the incentive for filibuster. none of the people mentioned prominently by the white house would be filibuster candidates. there are always 41 republicans in the said. that is more than it was before the massachusetts election. democrats tried to filibuster

justice alito when he was nominated. that fell way short and there were more democrats back then than now. host: you mentioned some liberal possible picks that you think republicans might object to. who are they? guest: they are all long list of 18. longer than anyone else's list, i guess we win the contest. the top lawyer at the state department is lionized amongst liberals and is a smart man with government experience. ironically he recently gave a talk regarding the creditor drones and the administration's embrace of them in afghanistan

and pakistan. many of the people that followed the record were surprised by that sort of thing. so, he would be one. looking at my list, there is duval patrick. on the record as a passionate advocate for affirmative action. he had some controversy as the governor of massachusetts that i do not think would help him. dan carlin, if he went down list of legal activists, many people might say him or harold cohen. host: michigan, anderson, republican line. go ahead.

caller: thank you for c-span, we appreciate your efforts, although i wish you would have more opposing opinions on the show at the same time. it is easier to rebuke someone when they sit in front of you. on that note, i obviously have something to say about the governor. i want to tell people about what is happening in michigan. you can see that her lack of decision making has put us into the huge problems that we have. i hear -- by her sheer fact of being a governor, you can see the decisions coming from the supreme court. also, she is canadian. why would we lot -- why would we want her to make decisions for the rest of america?

guest: michigan has a -- has been a rough place recently. i do not know enough about michigan politics, but it would certainly be explored at great length in any confirmation hearing. it could be a factor against choosing her through the political criticisms. i would be surprised if our canadian origins are problem. she was elected governor of michigan and has been fairly thoroughly americanized. host: san francisco, good morning. caller: my personal choice would be been cohen.

do you think that he would really be filibustered? how much of a problem is that for the country is justice kennedy? guest: i think the conservative republicans would really want to filibuster with only 41 of them there. the only way that they could make it stick is if a large number of democrats were nervous and able to make that impression. i am a little doubtful. as for justice kennedy and his pivotal role, it just so happens

that for a long time we had four pretty liberal on the supreme court and four free liberal people, and justice kennedy. this is not really mean that he is moderate. i would say that he is liberal on some issues, conservative on others. @@@@@@ that their jobs are more complicailted than that and implicate political sensibility, ideological sensibility more. you wouldn't see them splitting that way. bush vs. gore, the five most conservative, the four most liberal. that sort of pattern comes up again and again and again which tells us the supreme court is a pretty political institution in a lot of ways. i don't say that as a

criticism, i just say it as a fact. >> i've read that justice kennedy looked to justice stephens and his arguments that he would make and was influenced by justice stephens. to and was influenced by justice stevens siding with the so-called liberal bloc of the court. who makes that out in terms of the remaining justices? >> first of all, they are fiercely independent. i would take with a grain of salt the idea that justice kennedy will change his position. justice stevens is a very persuasive man. he thinks things through and knows what he thinks. but the next senior justice after stevens is true spader ginsberg.

she would be the logical candidate to step in to the shoes of stevens. that power to assign the opinion is very important. what he did very effectively sometimes was assigning the opinions knowing that it would keep them on board and he got to control jumping over to the conservative side. but that is not rocket science. guest: what about the role that justice -- host: what about the role the justice sonia sotomayor might play?

some have compared her to justice scalia on the right, saying that she is fiery. guest: she seems feisty in oral argument. i think that she livens the oral arguments. in terms of brand strategy and a simple majority behind a position, the force of personality will be her main access. she did bring important experience before she was a trial judge. she has experience that the court was fairly short on.

host: carl, independent line. good morning. caller: my phone number is 941- 936-7248. the other young lady asked me what for. my name is carl. this supreme court that is elected, my son and died desk -- testified in front of congress. host: what is your question or comment? half caller: i am trying to get to that. we testified before congress. i am asking for the supreme court to address the issue of

federal, state, and civil forfeiture. host: can you talk about that issue specifically and the big cases that the next supreme court nominees might face? guest: i cannot think of a big case right now, but there are big cases. if you have done something wrong, drug cases, if they think that, it can be very hard to get them back even if you -- even if you realize that the suspicion is justified.

the big issues that are recurring these days, the guantanamo types of issues, what do you do with an immediate oeneus? i think that those will be very big. affirmative-action preferences will be very big. abortion is always very big. religion and state issues. campaign finance reform was a huge controversy when the court unleased contributions. there is a list of others. gay-rights as well. host: barbara, democratic line.

caller: i was wondering -- justice stevens was in a lot of decisions about the corporation's, recognized as one person. how is obama going to find someone in that court to make sure that the people are represented? right now these people decide the politicians and the campaigns, where do the people, in?

guest: to be specific it struck down a 1947 federal law that prohibited corporations and unions from spending stockholder or member money to oppose election candidates. the court struck down by 5-4. it was the longest this and he had ever written. the new appointee will probably be fairly liberal democrats in congress have forced disclosure from the chamber of commerce, perhaps requiring shareholder

votes with corporations and what foreign owners can do. there are a number of avenues for the congress. i think that the probable effect has been exaggerated. i do not think that corporations are just dying to jump in and spending a lot of the profits. host: georgia, blake, independent line. good morning. caller: the way the the messages are put out in the writings of the supreme court, i am not happy with it. it is not intuitive.

often they have very short attention spans. more important, how can journalists actually write about the supreme court in a way that the members can look at that kind of documents guest: i think that the supreme court press corps do quite a good job of explaining what can be a very complicated matter. if you think it is hard to understand the stories, try reading the judicial opinions themselves. justice scalia, dusting them off and saying that you cannot possibly understand. the actual job of the supreme

court person is quite different. trying to get people to leave some things, trying to get something that no one else knows about talking about the cases where the justice has the cent in the currency. what a great democratic control on the process. there is always the center. someone is always going to be calling out to whoever wrote the majority opinion and getting a good dialogue that way. host: "the wall street journal"

and "of the washington post" had these articles about who is being considered. "no front runners yet." "the new york times" did not have a story this morning. as far as timing, they have this in "the washington post." "obama is not likely to make public his announcement until the end of may, leaving much media speculation about the selection but there is a timeline similar to that of judge sotomayor. but a goal of hearings in the middle of july and a one-year hearing on her confirmation, that is the year the senate is slated to adjourn for confirmation." guest: their major objective is to have someone seated on the bench before october so that you do not have a to judges possibly deadlocking on important cases.

the best and cleanest way to get that done with no margin for error is to do this summer recess. the president nominated judge sotomayor in the hearings for the senate judiciary committee began a in july and she was confirmed in august. one reason that i think that they will wait rather than just take someone -- he could pick someone today if he wanted to -- you do not want a nominee hanging around too long for republicans to try to pick fights with, dig up what ever happens. . .

it seems there are would be more qualified men, so to speak. it seems like his top four candidates are females. excuse me. he's already has justice sotomayor or even perhaps a black male american such as justice thomas. host: to add to that, senator carden was quoted on the ninth justice which is the blog at national journal about the supreme court pick saying that president obama should pick the best person. so stewart tailor, is there pressure this time around to pick a woman, to pick a latina, to pick an african-american? ssure

to -- stuart taylor, is there pressure to pick an african- american? guest: there's pressure, but less than last time. for example, merrick garland, who was mentioned earlier and has appeared on all of the short list, and diane wood, a federal appeals court judge, and elena jayden, the solicitor general. he was at the bottom last year because a white male was not going to get nominated last year. this year it could happen if the all off -- if all of the@@@@@@' judge thomas, patrick, the governor of massachusetts, has been mentioned. eric holder has been mention mentioned. i think it does so happen that most of the people on the fairly short lists are still

women. they're very well qualified women, though of the it's not as though easing the bushes to find a woman even though they're better qualified men sitting there in plain view. there aren't. >> greenville, michigan. rebecca on the democratic line. guest: good morning. i just wanted to call in and put in my vote flint, mich., democrats line. good morning caller:, i wanted to call in caller: and good morning, i wanted to call in and put my vote in for jennifer granholm. she was the attorney general here in michigan before she was governor. what is amazing about that is that this really is a republican state, especially over on the west side. she managed to get those republican votes. host: does that bode well for

her in a confirmation process? guest: if she is good at getting those votes, she would not need any republican votes to get confirmed. one peculiarity is that any of these people could get confirmed if the president really wanted to drive them through. there probably will not be a filibuster and if there was, it would get broken pretty quickly. democrats are nervous because they are afraid that at a time when they are on the defensive after a fairly popular health care bill passed and there looking toward an election where they are expecting huge losses, they are afraid the republicans will be able to turn these hearings into a summer television show that highlights things democrats considered to be their weaknesses. therefore, there is incentive to make a candidate that kind of keeps its short and sweet and gets it over with and also, does not provide the republicans with an excuse to steer the

conversation to things like not giving miranda warnings to terrorists, which the administration does not really want to talk about much on national tv. california host:, joe on the end of london -- host: california, joe on the independent line. caller: the women on your show this morning of for the supreme court, i would not care too much for. most of them are politicians. i think the only one there that i would vote for is the guy that is on the montana court. host: all right, what about the list overall? is it fair to say, or should people assume that whoever is on this -- that someone will be picked from this so-called list? guest: it seems pretty likely. you can never rule out a big surprise. justice souter was a big surprise, for example. the president was thinking

about who to put on the supreme court before he was president. he was thinking about it a lot a year ago after justice souter resigned. he is a former president of the harvard law review. he thinks about constitutional issues. he wrote about it in his books. now he has had more time to think about it. it would be a bit of a surprise if somehow somebody popped up who had not been thought of before. it could happen because maybe he was thinking about someone that has not been leaked, or it just could happen. the for example, judge thomas, who was mentioned earlier, i never heard of him until yesterday. suddenly, he is on the list. maybe there will be someone else i've never heard of suddenly on the list. if i were a betting man, i would bet on one of the short listers. host: why expand the list? why float more names out there?

guest: one reason could genuinely be they are considering them all. a more plausible reason might be that there are constituency groups and people who feel better about the president if he is putting out lists that have their guy or their woman on it. there is somebody out there, i imagine judge thomas, but also a lot of westerners that are saying, ok, good, at least he is considering a westerner. there are a lot of liberals out there that are thinking that he is considering harold coe is nice. you stroke various constituencies if you put out more list. host: william is joining us on the republican line. go ahead, william. ahoy caller: caller: i have -- caller: i have two statements to make. before the -- for the

gentleman who just called and the president mr. obama, he is the president of this country and should be addressed so. shame on you. also, are the justices supposed to be non-political? if so, why did justice roberts make a political statement about the president when he spoke in alabama? host: stuart taylor? guest: i wasn't sure what went on between the president and justice roberts. but in a way, justice roberts did not started. in the state of the union address when the justices were surrounded by democrats, they basically called out the supreme court and announce them in a way that has not been done in modern history for their decision on campaign finance. i think roberts' reaction was

not so much that he should not be criticizing us. in fact, he said that is fine. his reaction was that he really should not be criticizing us in that setting, surrounding -- surrounded by cheering and during politicians andand jeering politicians -- and jeering politicians. i do not think you will see many supreme court justices at state of the union addresses next year, or ever. i think that is over because of this incident. host: have you heard that directly from any of the justices or sources inside the court? guest: not probably, but i think one or two of the justices has indicated so publicly. and of course, there are some that have retired, like justice stevens, but have never done it. it is a political show. i think roberts said something like this -- why would we show

up just to be props in a political show? host: chester, conn, bill on the democrats line. caller: you are just the man i want to talk to -- talk to, mr. taylor. the 5-4 decisions that are coming down, don't the justices to realize that causes a great deal of speculation on the part of the citizens of the country as to whether or not the constitution is valid or not? i mean, more guys assigned to the constitution originally and you cannot get nine guys to agree on something? it does not sound right. and i want to start hammering on these judges to add these to -- to at least agree to something. guest: it is a very good question if the constitution is clear and they are interpreting the law, why can't it be 9-0, or

8-1 or at least 7-2. they your shoes from federal appeals courts, who are also good judges and have come to different and contradictory conclusions. they are very hard issues. but the other thing is, and i think i've mentioned this before, the job is inherently political in a lot of ways. it is supposed to be political. that is the civics class ideal. but a lot of the decisions they're making, there is not anything in the constitution that clearly spells out what you are supposed to do. or if there is something in the constitution, there is probably a president from some earlier court that goes the other way -- a precedent from an earlier court that goes the other way. at the conclusion i draw is that the supreme court ought to be pretty darn hesitant to strike down democratic and that makes

-- democratic enactments, whether they are state or constitutional. if you cannot have more than a one-vote margin, maybe you should back off. host: last phone call for stuart taylor, bob on the independent line from wisconsin. caller: thank you for this wonderful program. i wondered if you recall the famous, legendary tammany hall statement, the supreme court files election returns. contrary to what justice roberts would like to maintain, and has on c-span, the supreme court is, indeed, a political institution in the best use of that word. would you care to comment on that word, please? guest: i think that is true. the larger truth there is overlong. the time -- over long periods of

time, the supreme court, their role is that some of freedoms of speech are so important we will not let transitory majorities of voters take people's rights away. but in the larger frame of history, the supreme court rarely gets far out of step with public opinion. we have a story in the current "newsweek" that develops this. it happen in the 1930's with the new deal and the court got way out on the right flank striking down fdr's laws. that ended rather quickly when fdr replace a bunch of them in the 19th -- a a bunch of them. in the 1950's and 60's, there were some changes that were different, but i think necessary. there was some aggressive civil- rights -- there were some aggressive civil rights issues.

>> let's meet another winner from c-span's student cam video documentary competition. we asked middle and high school students to share their thoughtings on one of the country's greatest strength or challenge facing the country. today we speak to third prize winner guthrie, a seventh grader at willard middle school in berk i will, california. welcome to -- berkle, california. why did you select the topic health care for your documentary? >> well, i thought that it was very important. i thought it was maybe the most important issue about -- that's facing our country right now because people could actually, you know, get sick or die because of not being able to have a public option. >> how did you become interested in health care?

>> i think it was on the internet, reading an article about it. and i just -- i got captivated by stories that i saw on the web. >> why do you think public -- the public option should be included in health care? >> i think that everybody deserves to have -- to be covered in health care. i think that i've seen the results of it in other countries like in france i saw the movie "sicko" by michael moore which showed me how great health care can be if it's a public option. >> president obama just recently signed legislation for health care that became law. it does not include a public option. whatty are your thoughts about it? >> i think it's great that -- i think this is a huge thing to get passed. i think it's real great. but i think that it still needs a public option. but this is a good first step. >> in your documentary, how did you select individuals to interview? >> well, the process was kind

of rushed because we heard about it i think it was late into november. so we -- it was kind of a little bit -- rushed. but we thought of people who had something to do with the medical industry or just we generally thought were people who knew about the subject, had a firm grasp on it. >> in addition to the interviews, what other resources did you use for the documentary? >> to the documentary, we used some stock footage that we found and some stuff off youtube that had to do -- some like news, some news that was put onto the internet that we used on the documentary. >> who is jake kornbluth? >> he's my uncle. >> what did you learn from him? >> he had a bunch of personal experiences. we didn't get to put all of the stuff into it that we