why we use the payments system to begin to transform the organization and delivery of health care? recognizing that it will be difficult and that one model is not going to work everywhere in this country. the second point is to be mindful of our history. one of the advantages of being older than most around this table, other than ed hickeys meat company in that range, -- who keeps me company in that range, are the ones. yes, this is different from some of our previous attempts to change the way health care is delivered or paid for in the medicare program. it does give more authority to the secretary. it does provide for additional funding for the agency. .

that is the notion that the innovations that are discussed and included will be producing major savings within the next budget period. we have all said many times we believe there are ways that health care in the u.s. could be organized in ways that would allow us substantially slower rates of growth and spending are even less, but we know the history of trying to make these changes is fraught with difficulty. if we are aggressive, if we are imaginative, and if we are lucky that we put some good miles and and they can be scalable, it is possible to imagine in the

second five years of this coming decade or more likely in the decade that follows significant changes to how health care is organized and delivered and there for, and very different direction in terms of health care spending, but the notion that we are likely to see anything in a significant way different in the next three to four years, it bears no relation to reality. it might be dismissed as being over enthusiasm by a group that is very pleased with having seen health care reform passed. i am more worried that when you have unrealistic expectations and they are not achieved, that its funds undesirable behavior. -- its bonds undesirable behavior. we're going to hear an example

of the demonstration, but in some ways, we can look at the history and steve why we need to put all of this change into perspective. this is an example first thought about in the early part of the decade. it took until about 2003 or 2004 until it was actually released. we had some of the most promising sites in the country that agreed to purchase of fate, places where we might have expected to see shore winners. -- to participate, places we might expect to see shore winners. -- sure winners. we are now and in that decade, and we're trying to see what we can make from this

demonstration. i do not think it always needs to take that long, but it is a good reminder when good ideas can take a long time to play themselves out. fourth, i have some concerns we need to insure ourselves that there is enough variation in terms of who gets the money that we will really understand the implications of having money primarily going to the hospitals or to payers for to various mixes. my concern is that because hospitals tend to be more organized with more significant infrastructures, that they are more likely to lay claim to the dollar for accountable care organizations and groups of

physicians, and while i think it is important to understand what happens to accountable care organizations led by hospitals and where the hospitals are the primary recipients of the money, i am an easy of that as even -- either the only model or the dominant model and seeing what has happened during the current decade where we have had a consolidation of hospitals and the result of seeing the influence of consolidation in terms of increased pricing and spending in the private sector. i think we need to be sure it is not the only model. a final thought is that specifics can be really important. there is widespread agreement

about the nature of the variety of demonstrations that we want to see, the countable care organizations, etc., but the specifics can be very important in how they play out, and i want to give a couple of examples about why they might matter so much. we were speaking earlier this morning about the importance of trying to encourage real coordination and making use of the coordinated possibilities medicare and advantage might offer to seniors. there is now a bonus program available to those that are able to show they are providing higher-quality care, but it will be very important. should it be only for the top 10%, or should it be available to those who perform at a good quality?

are the measures being used the right measures, and if not, how quickly can we change them so they become so the more finally, and because we give so much to the role of care organizations us a different model going forward, we need to remind ourselves it is not just the providers that need to learn how to play differently. we need to ensure we are involving the seniors as well. we have not had nearly so much attention focused on what it would take to get seniors involved as opposed to what it will take to get physicians and hospitals interested in seeing whether they can share savings produced in its organizational structure, so the right general strategy is to keep the expectations realistic and do not forget about the details. >> thank you, gail.

mark miller is up next. he is the executive director of the medicare payment advisory commission. it seems pretty relevant. his official job is advising you about matters involving medicare payment. he has also occupied senior positions as well as in cms itself. go to our website. explains the acronyms. thank you for being with us. there will be some overlap in comments you have heard. >> i will try to make it sound different. the first thinning i will say is death there was a framing of the

problems at the beginning of this, and for several years the commission has maintained that incentives are profs -- are part of the problem, that it was -- it does not focus on quality or volume, and for many years we have been pushing for different strategies to promote equality and try to be more judicious of resources, and many of the ideas being contemplated, there is more focus on primary care. they are all things we have been riding to, so i think the commission agrees this is the right thing of the right time. more specifically, to the notion of demonstrations, that notion

which has been put on the table. the commission spoke about the need for more resources, the idea of flexibility to cycle through ideas and try things more rapidly, and the flexibility of the secretary to implement things she finds are effective, so the commission is in the same place where this seems to be headed. there are some other comments i would make. i think as we go thru this we will see there are other flexibility is the agency may need to execute this as they go. i think agency will encounter problems, and we may need to think of other processes that need to be relaxed to move this of the speed of some people are

already anticipating, but to shift a bit and talk about money, since that is a please one focus, one positive development in -- that is at least one focus, one positive development i have seen is more linkage between congress asking cms to undertake new responsibility and actually giving resources to do this. this happens more frequently. we can argue over the size and how closely connected to it is, but more of that is happening, and i think it is a positive thing. there is money to implement the overall situation and money set aside for the innovation center. i think we have to be vigilant, and i think as congress and the executive branch, the money is protected and use for those purposes. sometimes blocks of money are put out there, and people begin to try to redirect or define

themselves as part of that task, and i think it is important that we stay focused, and if this is what we want to use this money for, to try this. i think the trade-off, and i think stuart mentioned this point, so this is one of those two-time things -- i think the trade-off is transparency, so if they are going to be given these resources and they do not want the extra authority, that is a big deal, and i think it will be very important they spend a lot of effort in keeping people informed, if it is going fall, telling people and keeping them informed regularly. the most important thing is no surprises. some of this stuff is going to work. some of it is not going to work the key will be to keep congress informed, and this is stuff i

know the folks know, and i have talked to them, so i think there are things they have not thought of themselves. with respect to research and thinking about the innovation, a couple of things occurred to me. there is this notion of -- this notion of trying to generate ideas and to take those into a more formal pilot and take it on a more broader scale, and i think that could be one way to keep ideas moving and to move do things quickly, but it is definitely something i do not think they have a lot of experience with and something the will have to be worked through. i think it is very important that quality isn't improved.

it is very important that quality is improve, and they have shown there are ways to improve quality. i think what has to come out of these tests is to figure out whether we can reduce the expenditure, and i think it is critical that happened. i think some of that is looking at the ideas of the next generation to affect the trend in spending, so these pilots are absolutely critical, regardless of the timing, whether it is sooner or later, and i agree we may not see things right of, but that should be an objective. i think there is a difficulty we are all going to have to face, which is in order to move faster and innovate as you go, it will be much harder to put a

pin in thin -- a pin in something and say, this works. that is the way to move swiftly, get things done, test ideas, but for people who have to do scoring and say, does this idea actually work, it is going to be in some ways harder potentially to pin this down. i believe there are ways to accommodate that, but it is something that we will have to be aware of. another thing i will say is i think we should be conscious of -- there are ways where -- takes bundling, for example, one of the key issues everyone gives wrapped around is who gets the money, and these ideas are about redistributing money and changing the incentives in the current system. we cannot agree the current system does not work and that

flows of money do not work and not change that. i think people get fairly focused on that. one way to think about this is to do it in a virtual cents, were you the death of bundle -- look at the bundle and reward or penalize. i cannot tell if that was clear, of we have to keep moving. -- >> i cannot tell if that was clear, but we have to keep moving. we have a clock ticking. i would urge people to think about models that way, and i am going to make time, sir do not panic. the other thinning i would say is two of the biggest complaints

is these -- the other thing as i would say hopefully these things will be addressed. the notion that if you are involved, you know where you stand, or you have the data to see what part of the population is doing, and hopefully there will be some ability to devote afford or resources. the second thing is knowing the targets in advance. this raises performance issues, that sort of thing, but the notion that the provider knows what the target is, not knowing they missed the target six months ago or a year ago, and i think that will be critical. another thing i think we should keep in mind is fattening -- is the coordination seems to be good for coordination of care, but consolidation can also

generate volume, and consolidation on a private sector side can in-flight -- can inflate prices, so we need to be conscious that is we drive the system, there are externalitie'' that can occur. the last, and -- i think gil made these as well. she is absolutely correct that we are very focused on service here, and i think we should be, but remember, we do have a managed-care program, and that can be a good platform for coordinating care. i want to emphasize not all managed care programs have that capability, but many do, and it is a good platform to think about. the other is our belief they're going to be collecting counter

data, and that will help inform some of the tactics, and the last thing i would say is i could not agree more there is also another actor, the beneficiary, and we have to be aware of the incentives to participate in these types of changes. also, we are trying to work on signals for the providers of being aware of signals of one of the actors involved in the consumption of care. i will stop. >> our final speaker is dr. nicolas walter, the c zero in billings, montana. -- the ceo in billings, montana. we have some high policy into

rooms, and it turns out he is one of them. he is also in the trenches. his clinic is one of the fully integrated health systems in the country. i suspect he found himself answering questions about how his system function and how he made it work so well, and we're pleased to have him share some of that information as well as the private sector today. thank you for being with us. >> thank you. it is a pleasure to be here. i had hoped to combine this trip was attending a capitals playoff game. what i would like to do this take you quickly on a tour

through the des moines. -- through the demo. there are two courses or meetings a week on how to form accountable care organizations. it has become quite a mania. the billings clinic is fairly large. we are about 240 positions, and we are quite integrated. we also mens and work with six critical access totals -- we also work with six critical i access hospitals. in many ways we feel ready for what we are headed into, but there are lots of things we have yet to learn. the demo included these

organizations, and i think one of the interesting things is it included multi specialty groups with no formal hospital relationships. it included some academic -- some academic centers, there is a variety of types that were part of this demo. in montana we have some challenges based on geography. we serve almost 500,000 people, but they could be 200 miles away from us. some of these people were actually assigned to us as our responsibility in this demo, and to quickly point out from southeast montana to northwest is the distance from washington, d.c., to chicago. the demo was based on could we reduced rate of growth of medicare spending per beneficiary per year? it was designed to be budget

neutral and to provide financial targets as well as quality targets, and this just illustrates that as the years unfolded, more of their performance pace migrated to quality, and it became 5050 based on quality and financial performance, but there was a threshold. if you did not reach the threshold, you did not share in any savings. we have a robust quality measures in the areas. this shows i think what would be considered a good group of measures that to some degree would reflect if we are doing a good job managing people's health, and i would say this.

the financial savings were largely indication driven, because that is where more cost and spending is, although the quality measures were largely outpatient driven, and you can imagine the interesting situations where no hospital was involved because they were taking measures to reduce hospital spending, even though that did not involve their own organization. whenever we reduce hospital spending, we reduce our own revenue. one slice of something we did, we enrolled 36 people with heart failure. we use the system to track certain symptoms daily, and when certain triggers were hit, they were actively managed by a nurse common greeted by a nurse, and what we found is we have a significant performance in terms of averting the missions, and

the other was research group that validated things, but we averted a enough he missions that it probably save the program $3 million to $4 million. if you could generalize about, there would be significant savings. if you look get this done honestly, and if they'd probably lead to savings -- it did probably lead to savings. as the numerator of over all the spending and all these groups, that would not be a large percentage, so we have to learn what we can from what went on but also to understand we have a lot of work to do to try to raise the bar. this shows how the years unfolded. it became a five-year demo.

now we are looking at can we migrate this. accountability was local. we were responsible, yet we had to organize a lot of things we did not necessarily have complete control over. as we look at shared savings, comparing this, different incentives unfold, and the idea of trying to reduce expenditures, the financial incentive to do that is quite a bit higher, and i show this slide because under the provider list, when you are organizing to provide coordinated care for the patience you are a sign, you have a lot of services that have to be organized from and in some cases they are not in your organization. we are having to contracts with providers for services we do not

provide. that is a good learning for us now in terms of how we might look of these accountable care organizations. some of the new financial incentives that will be coming our way that have already been discussed, and i think we're going to see experiments in all these areas to regan in terms of the relationship, in terms of payment and organizational tired, the thing would like to emphasize is feasibility, because we do have a number of does practicing organizations that receive fee-for-service, get their coordinating care and providing care -- and yet they are coordinating care and providing care in place like this, so we have models out there that are doing good work. we are going to see a trend toward looking at more

organizations of the payment system, and then this is some of the language from the health reform bill that talks about accountable care organizations and how different models might been tried. i think we are going to try to learn from the amount -- learn from the demo in terms of how we look at requirements and how the financial model looks. i did want to discuss a few design issues. all our patients assigned to us that we are responsible for, and in the group of the -- the case of the group practice demo, if they received a plurality of outpatient care through us, they are assigned to us. i think the beneficiary

participation question that has been raised is important. we did not know who they were. they did not tell us who they were until later. we were given performancee results, but we did not know them by name. it is difficult to know managed care when you do not have a good sense of who is your population. it was as long as two years before we received data on how we were doing on this project. risk adjustment is very important but not an exact science. some of the organizations who did receive shared savings did so because their risk was significantly higher than other organizations. this comes down to how well you know how to demonstrate severity.

that is another factor that needs attention. we did know who they were in that particular case, because we and rolled them. that was about $100,000 a year, but we spend significantly more than that to manage this. the financial design, i think there were some issues, and once you go beyond that, sharing all the savings would make sense, and some of those shared savings would be a good long-term design feature. it is very complicated to devise shared savings models, so hopefully there will be something. i am not much of a fan of virtual bundling, because i

think it is hard to manage care, but presumably both of these models may be tested, and quickly, a few other thoughts. i think it is important to focus on high volume costs of care. we need to refine fee-for- service at the same time we're doing other new payment models, because fee-for-service is out of whack in a number of ways. we make a ton of money in orthopedics, but we lose our shirts in mental health. we need to rebalance that. the same would be true in terms of how physicians are paid. other incentives include physician ownership, the relationship physicians have with pharmacy and device manufacturers, and hospitals have their own behavior is, too, because they like to work with physicians to drive volume. the relationship between

delivery system and organization and payment policy can be nonlinear. their organizations motivated to do the right thing, which leads me to emphasize, leadership and culture will be a big part of the next five or 10 years as we see how the system changes, and we really need that in addition to payment reform. when you get into these pilots, if you can share with the others, you can learn from best practices, and i often hear that some of these things cannot work in rural health care. rural health care is ready for some of this, and i hope we will have a chance. this is the 17-year-old quote from jeff goldsmith. the key to integrated models is collegiality. it is not an excess mortar -- not bricks and border.

-- mortar, and just to finish, this is from 1913. the past years have been marked by advances in science and medicine. the next 50 will be marked with the mark of how health care is delivered. i think he hopes we get it right this time because we have not come quite as far as he was thinking back then. thank you very much. >> thank you. [applause] he is just a century ahead of his time. the next 50 years, there are microphones. i cannot see where they are, but i am confident they are there. there are also question cars -- question cards you can fill out and hand to one of the panelists or to one of the staff that will pick it up and bring it to the panelist. let me start by going back to us

seem a couple of you touched on, and that is that this stuff is not going to happen overnight. now he has been doing this a long time, and he has some results, but some of these new demonstrations are going to take time to organize and get return on investment flowing. is there political patience to allow the kinds of developments we have been talking about to take root, to start to change the culture and actually deliver some results thelma -- some results? >> i worry about that, and that is why i caution against wildly optimistic assumptions of how quickly we are going to see a large amount of savings. i think that sets us up for a collective fall when they do not materialize.

what i am concerned about is how long we can go without making some significant changes in how we pay physicians. many of you have heard me say there is nothing more broken in medicare than the relative value scale combine with sustainable growth rate, but to remove the sustainable growth rate without replacing the scale with something that does not a physician more for doing something more complex is an indication to even more since reaching more unsustainable spending. that is my greatest -- even more unsustainable spending. but as my greatest source of frustration, but we have let three or four or five years ago. this is probably the biggest issue i see on the horizon for medicare.

the other parts hopefully we can keep going while we try to come up with a better delivery system terminal -- delivery system. my word of caution is if you take away the pressure, because of the sustainable growth rate, it will be difficult to get physicians are actively involved in embracing the changes, so pushing down a year at a time until you figure out how to change sustainable growth. >> i would ask you to identify yourself so we can get to as many as we can. >> she mentioned the difficulty of getting people into the program. that takes me back to the early 1990's, where the hmos started

as an attempt to coordinate care, and my question is how much of what will be happening now will be based on what was learned from the hmo experience, and what happens if people hate it devlin the hmo actually control the cost of the time if we go back to the early 1990's -- if people hate it? of 80 mile actually control the cost if we go back to the 1990's -- the hmo actually controlled cost if we go back to the 1990's. >> you're raising a good point. people do not always acknowledge how successful care was in the mid to late 1990's in terms of slowing down spending compared to what was going on in the fee- for-service sector. it is questionable it was managing care. it was mostly managing the cost of excess capacity, and it does

raise the issue of what happens when you ignore the beneficiaries or the participants. my take on part of what we saw in the 1990's is that individuals in private insurance were now part of the decision making. employers offered signaled plans for a limited choice, and employees found themselves in plans that could strain their choice. they did not like it. you did not see the kind of push fax we saw in washington, where the federal employees plan dominates so much of the insurance days, and people can change their insurance every november. to me it is a grave reminder that they are not a part of being able to choose the types of plans they can purchase a stake in. you are expected to see a lot of push back, so a lot of what we

may be learning is what not to do and to be smarter as we go into the next round. there are a lot of good models. they are just not relevant. >> just to add to that, one of the things we have now we did not have been the 1990 cost is much better ways of measuring quality care, and i think that is a crucial aspect to the situation. we can do better in making sure care does not suffer, and rather flee to whether or not it is true, there was a strong perception -- whether or not it was true, there was a perception, and even though we have a long way to go to develop measures of quality care, we are a lot further along than we would have been. >> i think you are next.

>> i am from the emergency physicians college, but i have a question for dr. walter or anybody on the panel about the sustainability. i work of the hospital association when it did not turn not to be a raging success, and -- because the hospitals have incentives, and they will be geared toward keeping people out of the hospitals and out of the emergency departments as well, so how can you get hospital leadership on board to do things the will basically cut their revenue family -- cut their revenue? >> many hospitals are going to struggle with this common but i did spend -- struggle with this, but i did spend a few years on the board, and there are progressive leaders in the hospital community who i think believed to do the right thing

we need to change how we look at what the hospital is, what if those, and how it works with physicians. there are many that are going to come into this game fighting and screaming, and others who believe we should make changes common and if we do not, we will see significant cuts in unit pricing in upcoming years. >> i would add to that that the most optimistic forecast of what the impact of any initiatives would-be does not involve a decline of health care spending. it is just a matter of shaving some of the top of the trajectory projected currently,

so there ought to be a way to realign resources or you can do the right things and also not lose your shirt. >> the real problem and we ought to make sure to let physicians choose to align with hospitals, and we can choose whether or not to do the right thing. >> i am a medical student and the legislative director of the medical student association. my question is in regards to primary care. on the individual patient level, primary-care is often the point of coordination for health care, and primary care is often considered a way to increase quality of while increasing cost as well as preventative medicine. how do you see the primary care shortage currently been an

obstacle to a mall or do you see an increase in incentives in primary care as a way to implement reforms in the future? >> good question. >> i guess a couple of things. i think if some of these innovations were in the way they are described, they would change the view of the primary care physician, and in addition to reimbursement and lifestyle and other issues, one thing i have heard from people about why they do or do not go into primary care is the notion of the importance and the role of what responsibility they have been providing care, to the extent that a medical home puts the much more at the center of the care process. that may change some of the view of people coming through medical school.

i also think there are things, depending on how the reimbursement works, there may be if more resources for those types of positions, but there is probably changes that also need to occur on medicare, and this is of the commission was talking about. there are changes that need to be made on the way the funding process works but i think it have a big impact on dass. i will not go into the -- a big impact on that. i will not go into detail. some of the balancing of the relative values common to be clear that even the individual service -- relative values, to be clear that even the individual prices are ways to get at that. those are some ideas.

>> i keep trying to get this idea embraced by the congress or the administration. it would a police take away a- for residents to carry big loan burdens -- it would at least take a way for residents to carry big loan burdens. >> you just mentioned a few comments i have. through physicians and hospitals and others, it is going to be very critical in terms of moving this forward and improving and driving down costs. one project on a number of years ago by general motors gave consumers financial incentives to get better plans. i think that is an idea that should be expanded, and i think

the more we get to outcome-based measures, i think that will help drive the system to be more efficient, more cost efficient, so i am interested in comments about those items. >> one of the pieces you have on the sheet that lists things is an appendix to the paper, including some of the private sector initiatives. do we want to pick up on the question itself? >> we have raised the importance of the individual depending on which population you're looking at. when you look at health care reform legislation, and much of

which has happened historically in medicare, all the pressure has been put on the provider community, and while it is important to change how we reimburse institutions so we reward them with the behavior we like to see, it makes little sense to me to ignore the incentives better out there for the seniors as well, and you can clearly reward them for being efficient providers. while we have not talked about as much today, there's a real coordination between the chairs in medicare and what goes on in the private sector. this might be an area where we are seeing more innovation, but

it is a mistake -- it cannot be ignored. people were not brought into the process, and they did not like what they saw. >> we have been hearing from providers who are very upset with a variety of quality indicators or efficiency indicators they have to comply with to get the pay for their performance, and there are different competing ones described in the appendix, and

the have to jump through different hoops to get different rewards? >> this is an important point, and when you look after what they are asking for, it is expensive, and it is hard to coordinate all those things at times. the other thing i would add is this whole issue of administrative simplification and the requirements we get not just on quality reporting but around compliance, i think there was told about 15% of our staff are related to billing collecting and complying with regulation of one kind or of the

other. there is a lot of money there. if we could find ourselves -- our way to some syndication, this would further the cause. >> i agree, and this is something we talked about as well, and some of the discussion has been in terms of pilots, being sure you have coordination between public and private efforts, and this is certainly an area that could have happened. if we are talking about narrow, based on single hives of services, i did not know if they affect a lot of change triggered they may send an important environmental signal, but i do not know if they will accomplish a major change. i think while there are

mythological issues, there seems to be some coalescing around readmission rates, avoidable admissions, and use of the emergency room, and it seems you could give a handful of outcome measures you could agree are of focus if not the entire focus, that you could begin to drive some of the demonstrations. >> there is one hesitation i have to the issue being raised. i am sympathetic to the burden being placed on institutions. i am a little uneasy about coalescing to quickly around outcomes and performance measures, given how much we do not know and how quickly it is

devolving -- it is devolving. -- evolving. it would be possible to foot of out as of september 1 would have to be used, but i am not sure how much would have to do so. it is going to be a balance of trying to minimize the burdens we place on people and institutions providing services. there is a simplification requirement in 2013 and in 2014 as part of the health care reform act. we will see how that plays out in terms of how it reduces the administrative burden would assume the legislators hope thighs they drafted -- hope as they drafted it. >> we are having some success

migrating input into our health records so we are doing quality measures, and i think as the systems fletcher, the electronic of record may help us with that burden to some degree. >> we have a question that comes from a congressional staffer. asking the panel of -- the panel to address the issue of the independent panel advisory board and whether you think it will play of a role in promoting reform and other innovation in medicare. you want to start? >> of course the easy answer is best it would be the fact -- is the fact the board has would be how it carries out its mission, but i think it already plays an important role, because one of

the things that comes up when you talk about ways of organizing and delivering care is the need to get away from service and the need to make it clear that fee-for-service is not going to be a comfortable place to be down the line, and i think the existence of the investor report dramatizes that, because if we do not come up with good ways of controlling the costs of health care, we are going to be left with more primitive tools people have used in the past, and i think it needs to be clear to everyone in the system that is not going to be a pleasant alternative, so we need to do our best to make sure we find alternatives that were and are more palatable -- that work and are more palatable. r.f. i just want to make sure the curve of tools we are talking about archives and provider rates.

-- are cut off in provider rates. >> i am hopeful thus before it begins to take affect in the second half of the decade that the congress will have changed its mind, and the secretary will put in place the results stuff pilots shown to reduce spending, and the reason i am not in favor is twofold. the first is the was appointed, the individuals are unaccountable to the congress verio -- the congress, unlike the administrators, who remain accountable to the president and remain accountable to the american public. the limitations of the advisory

board are such that it focuses on one narrow area in these issues, but mainly i am hopeful that we see authorities granted or triggers put in place that would implement some of the pilots shown to without reliance. >> the second half was addressed to mark miller. how will it interacts with the independent board, which presumably is going to have a relationship with congress with respect to payment? >> this is the first i am hearing of this. i have to say, it is freezing

cold. but if there is someone from our staff, if they can make any adjustments, it would be very helpful i am having trouble pressing the button to turn the microphone on. >> a couple things before a very myself further. there were several things as we went down the table that i agree with, and just to go back to the point, the first point, i think whether it is effective or not, there are a lot of questions, and there is an appointing process, an organization process, and a playing field. i think all those are serious questions. my answer is, i do not know. with respect to what our role

is, the legislation seemed clear they wanted to continue doing what it is doing and gave the additional responsibilities to respond to the recommendations that a new entity makes and say to the congress these are good ones. here arr alternatives, and i am thinking about it. we have not made changes yet. it is unclear when it will come on-line, but if the actual role is a few years off. .

podium, deputy secretary of state james steinberg. >> so many familiar faces, it is a pleasure to be back. one feels like they can never quite run away. you especially feel that because

i have the pleasure of having so many of my former and current colleagues, now in government, including the former leader here. it is nice to see the former administration officials. i am particularly grateful to talk about the issues that you raised, ken. your observations are quite right. the change in our relationship has been the centrality of these groups and answering the questions that you post, are essential to understanding where we are and where we can go in the bilateral relationship which has enormous consequences, not onlyor the u.s. and china, but also given the central role that both of our untry's play in being part of the problem and solution of some many of these issues, like the economy, climate.

i also want to express appreciation for my good friend richard busch. i am glad to see that things remain in good hands here. i think it is important to begin the discussion of our collaboratn on global issues by reiterating cover basic approach under which president obama has led our engagement with china. we welcome a china that is strong, prosperous, and a successful member of the international community. now is the time for our nation to join hands and to commit to creating a prosperous future for our children. a four-positive looking commitment that understands that we have to look at our relationship and a broader

context. this goes to the point that secretary clinton gave last year, which is, given the nature of the challenges that we face, the changing global agenda, we face a world where collective actions are coming in and no effort by any country on its own can be the only solution. for us, the great challenge is to build the structures of operation, which include building on a multilateral basis institutions and mechanisms for the 21st century, but also to have bilateral relationships with key players, beginning with our traditional allies. but also,o emerging tower -- powers such as india, turkey, south africa. all of which places chemical to

the global challenges of our time. i think the press tends to focus on the day to day up and down to of our bilateral relationship with china, from time to time, claims near orvirtual crises in the relationship. i think it is fair to say if you look back over the last 18 months, it has been a very strong and productive time in u.s.-china relations, and demonstrates that the two countrieare able to work together to deal with these big structural challenges. that is not to say that everything is always smooth sailing. any of us who have dealt with china relations would never expect this to be without its difficulties, but i think that where we have difficulties, we can work through tm. where there are differences, particularly among means, that we can work through them through

dialogue by building trust and finding common ground by recognizing, on most of these big issues, ce interests is common between our two ountries, and while we may have differences on the best way to achievehem, that strong conviction about the common goal gives us a framework in which to work through these differences. i will talk through a number of thos issues in just a moment. i think if you look at our strategy, going forward, it has been to build a strong and comprehensive relationship that deals with a fulrange of issu. we do not have the luxury of narrowing it down to a handful, but also looking at a broader range of sues which gives us context to solve individual issues that we face. i think it is particularly timely to look at this cooperation. in our administration, and i'm

confident that our counterparts in china, are focused on working on a second to do the dialogue which will take place in beijing in a few weeks. when we think about some of the areas of cooperation, on her first trip to china, which is now a year and half ago, secretary clinton highlighted three areas which she anticipated at the outside of her time asecretary of state, would be areas where there would be great opportunity for increased collaboration. the first was international and regional security issues. especially iran and north korea. energy and climate. the third one to response to the substantial global economic crisis, and the building a new foundation for sustainable growth. on all three of those they have

proved to be the core issues of our relationship. i think we can see we have made important progress on all three of those. that is what i will spend the remainder of my time talking about. security issues, something that we are focused on -- i think you can see there are a number of areas where we have made to the in progress. beginning with global security challenges like counterterrorism, counter piracy, the attempt to build a more sustained military to military relationship, and most importantly, dealg with iran and north korea. if you look at issues like counter piracy, for example, the deed the engagemenin china for supporting glal efforts to deal with this demonstrates the degree to which china increasing sees its part as having to do its share and be part of the global solution,

learning to work effectively with other nations to deal with a common challenge. i think this is a welcome the element. as we undstand this as a common thread, to commerce and safe shipping, the fact that we have so many countries worng together that have not historical done so, it is a strong example of how china can play an important country carry role. on the military to military front, we have progress, although it is not as sustained as we would like. we believe military to military cooperation the there. it is important to maintain the dialogue between our military. upon iran, -- on iran, the

strategy that the obama admistration has had, which is to reach out to iran and demonstrate our willingness and to seek a diplomatic solution t cover differences, particularly on the nuclearquestion, has proven successful in not inducing iran to agree to the steps we think it needs to take, that at least we are serious about demonstrating looking for diplomatic situations. putting the onus on iran to make their updates. we are also seeking cooperation in sending a message to iran that its actions are not supported by the international community and needs to work effectively with us or will subject themselves to significant new costs. we saw that last fall in the important decisions taken by the iaea board of governors. now as we move forward in the

security council, following up on the p5 +1 process. while we have not fully digested our systems to precisely the action of the security council should take, we have sn meetings and that a growing list -- willingness of our partners of their recognition that the time has come to take submitted in action. it is clear from their statements and engagement that china understands, and iran seeking nuclear weapons is not in its interest. there is a need for a clear international message to go along with that. we are working hard to reach common ground in the security council to send that message to iran. diplomacy remains open. we believe that is the best way

forward. i think that has paid off a very substantially that we interpret with other members of the security council and the response to north korea's missile count last year and its announced nuclear test last year. that led to a swift and unprecedented degree of -- in a

large the security council to move forward on new sanctions which we believe are having a significant impact. we face a very challenging situation and it really underscores the precariousness of the situation on the korean peninsula. i think we all recognize we need a thorough and complete investigation. we are determined to pursue this thoroughly and to follow the facts where they may. s. this will have an impact on how we proceed in dealing with the challenge north korea and its actions and not only on the nuclear front and other provocative measures they take in go how wperceive will depend on clarity go career and must live up to its obligations on the nuclear weapons program, of fighting with the u.n.

security council resolutions, and will end its belligerent behavior towards its neighbors. from this process, i say china has played an important constructive role through the six party talks and in engagements bilaterally and in new york. we are engaged in an intense discussion with all parties in the region including china with how to deawith this latest incident. we vy much hope that during this recent visit with kim douville kim jbng il to make clear-- kim jong il that we made clear. that is the first basket on security. the second identified was on clean ergy and climate. i do not think i need to tell this audience or any and why is that the u.s. and china have a significant role to play in dealing with the challenge of

energy and climate change we are the two largest energy consumers, greenhouse gas in matter and there is no imaginable solution for dealing with the problems of dealing with greenhouse gases without siificant engagement and contribution by both the united states and china. it is now up to us to be the vanguard's, as it were, to a salary to transition to a low carbon economy if we have any hope to meet the objectives for limiting greenhouse gases in the atmosphere and the risk of increased global temperatures. i think the evidence here suggests, and i know the people here at brookings are looking at this, but we are seeing a real change in the way the chinese approach this question from its historical position which suggests that it either was a problem but if it was it was

someone else's problem and therefore not irresponsibility for china. it was something that could perhaps impede their economic development. we have seenn china's national plan and its actions in copenhagen that we are beginning to see china undress when we think are the key challenges which is to see them reduce their emissions as they go forward with economic development and put themselves on a long-term path to meet the global needs for what climate science has told us is a sustainable level of greenhouse gas emissions with lower concentrations in the atmosphere. all this can judge the extent to which the kinds of the to ms. china is making on its own

national level which is -- to which kind of emissions china is making. i think we saw in the final outcome in copenhagen a clear recommendation of china taking positive steps o each of those elements. we have heard a lot about those negotiations for those invold in kyoto. and should come as no surprise like any fine meals, the test is not how it looks while being made but how it looks coming out of the oven vigo -- out of the oven. with some significance steps forward in copenhagen. all major economies, including china, or making commitments to carbon emissions and to report on mitigation efforts which is critical to give a recognition.

we all need to work together with balance commitments by all major economies. that international engagement has been complemented by our bilateral work on energy and climate. we signed a memorandum of understanding to work and clean energy and environment at the last to teach again economic dialogue when the president visited beijing last year. we have new clean energy research centers, electric vehicle incentives, and renewed partnerships. we agreed on public-private energy programs and cleanoal development. these will have benefits to both countries and our private sector partners who are part of these efforts in go by we have a substantial way to go forward and we have things we need to do at home, we are very much committed coming the president

-- we are very much committed, the president is moving forward and committed to move legislation forward in the united states. we understand we need to do our part, but this is something we can do hand in hand with china to make a clean and predictable environment. the third topic that the secretary identified in her initial remarks was the challenge of the economic crisis and global growth. i think here you said the potential the partnership between the united states and china. this is not a g-2. however important our two countries are, we need the cooperation of all of the systemic international players. e prospects for dealing, both with the short-term challenges in t crisis as well as the long-term challenge of

sustainable global economic growth, they simply cannot meet. both countries did step up and do their part. china was a clear player in the financial crisis. this was the occasion of the president's first meeting with president hu was in london for the g-20 meeting. now we needed to turn to the elements that will make the best recovery sustainable over the long term. there requires china to recognize the shift to more consumption in a service based economy. that is in china's interest as well as the interest of the global economy. and the greasy some signs that the chinese leadership understands that in sight. -- i think we see some signs that the chinese leadership understands me to resolve long term debt.

that connects to the question of domestic consumption in china and other emerging economies as we try to sustain more balanced economic growth. one importance is the china moving to a market-based exchange rate. i think this is a principle that have embraced and has been reiterated by prime -- by president hu. it is not done as a favor to anyone country but it is a part of china's national interest. their economic leaders recnize this needs to be done that recognizes that these are changes that take place over time but we need to move in the right direction if we want to give the global markets confidence that we are going in the right diction. moving towards a market based exchange rate is win-win. all economies will be stronger.

there will be a more sustained basis for china's on economic industries if we have balanced growth. at the same time, we recognize that countries like china and other emergency emerging economies play a role in this economy and we need their significant participation. we have seen the role of the emerging economies and the evolution of the g-20. china has the third largest share of voting in the world banks. we support giving them a larger role in the imf. all these issues are very much on our agenda. the all demonstra a lot of the key global issues that there have that -- that there has been progress. we have a vision of where we want to go.

even if you do not entirely agree on the means. this underscores the importance of the strategic and economic dialogue building on our very successful first meeting here in washington and in this upcoming meeting we will have even more leadership participation than we had here in washington with 15 cabinet members and agency heads traveling to beijing. we use this meeting both to deal with long-term challenges and an action forcing event to help us move forward on some issues to crystallize the intention and get things sticking out of the bureaucratic level to the leadership decision level. it is a great opportunity to sustain the dialogue between policy makers in both governments, for them to understand our thinking and vice versa. the ability to do this across

such a set of issues that intersect between the strategic, political, economic, environmental sectors. we think in a more systematic and integrated way. this set out an opportunity of us to give long-term priorities for engagement but also to have concrete tasks. as with last year, they will have two tracks, the economic track that will be focusing o economic growth including the importance of sustaining employment here in the united states, buildinand strengthening exports, and thus the opportunities for american firms as wel as to encourage china to move forward to contribute to global economic rebalancing. on the strategic track, there are three pillars. the first is counterterrorism, miliry ties, the second is

the security issues in addition to the two i talked about, and ron and north korea northiran and north -- iran and north korea. we're worng together on common objectives. the third is working together for multilateral institutions on things like climate change, pandemic disease. needless to say, every one of these dialogues will raise issues and concerns and we will have an opportunity, as always do, to make issues important to the united states such as the need to protect intellectual property, religious freedom, concerns a lot aspects of the military modernization in china, as well as the issue of the overall economic balance and exchange rates. we will undoubtedly be discussed these core issues like peace and

security in taiwan and the need for china to hava deeper engagement with the dalai lama within the framework of the one china policy. on the economic and trade fronts, we will discuss concerns about aspects of chinese policies which we think have protectionist case -- castes. this could undermine market basket -- access to key sectors. this is an opportunity in formal and informal sessions for us to have a sustained dialogue, exchange views in a friendly but forceful way about each side's perspective which allows us to move forward and deal with these issues in a strategic way on a whole, the balance is -- in a strategic way. on a holthe balance is there.

i think the answers to most of the questions is that we are heading in a positive direction. theature of these problems are such that our interests are shared in terms of the fact that we sink or swim together on issues ranging from global economic growth, health, terrorism, proliferation protecting sea lanes, and other allies -- and other challenges in our common interest. we need to maturity continue support for china's growing role in the growing political structure. china's growth is a positive contribution to the security and economic growth of the world and its growth and prosperity to not come of the expense of others. i think that is a challenge that can be met. and is one we are committed to

try and work with china to achieve. we're looking forward to this sustained engagement. we will be in beijing in two weeks' time. i look forward to your questions. [applause] >> the floor is open to questions. please identify yourself and given the number of people who will want to ask questions. we have less than 30 minutes. make it a question and not an extended comment, please. we have some microphones. can get the sucker please fax -- can we get this up here, please? >> i am with taiwan. talking about the tie 1 straight, how do you see the president's recent remarks that in an interview with cnn he says, "we will never ask the united states to fight with taiwan."

are you encouraged by his determination to defend tie one on its own strength or are you relieved that the united states will never be dragged into a potentially bloody war? for you concerned that they may be distancing taiwan from the united states? thank you sir. thank you, sir. >> we are quite encouraged by the direction of relations between taiwan and the people's republic of china. we believe a strategy of engagement and looking for a resolution is important to the common future. this is something that, in the end, we have always believed that this is something best resoed through dialogue. we have encouraged beijing to make clear to respond to these through thleadership to find common gund and build trust across the straits.

that pvides a foundation for the two sides to deal with each other. this is a situation where conflicts in no one's interest. it is not useful to speculate what would happen in the event that conflict comes about. the goal is to avoid it. we need to look for a peaceful resolution of differences that takes into account the wishes of both parties. >> you mentioned sea lane security. with respect to maritime corp., it seems to me there is a window of things like humanitarian relief exercises with the chinese, anti-racy, and that folds into energy security. that me ask a question that i posed with respect to the global

climate change issue in the first panel. the chinese have increasing interest in building trust and confidence or rather demonstrating they are pretty confident? >> is -- as i alluded to, one of the great challenges we face is how do we understand and how do we intend to turn a proxy growing military power? we understand -- how do we understand china's growing military power? because china's approach lacks the transparency women like, we do have questions aboutong- term intentions. that is why we want to strengthen the opportunity for military to military dialogue so we have a better idea of what is

driving their decisions over militaryodernization in terms of equipment, doctrine, and other operations. we want the assurance that what they're seeking to achieve is in line with the broader economic interests of others. to the extent that china has a greater maritime capacity to contribute for humanitarian efforts is welcome. because there are other aspects of their modernization program that are less clear, which would like to get the clarity about what their goals and intentions are to build the kind of trust between our military's and leaders. we want to understand what that is about. who want to persuade the chinese of the world we live in requires more competition -- and more

cooperation not competition. this is a situation where we have learned from experience that the risks associated with those competitions are severe and no one wins the long term. that is why a dialogue is so critical. we'll try to persuade them to try and insulate that dialogue on subsequent issues so we do not use the opportunityo discuss areas where we have concerns as well as wary -- we have common interests. miss >> great talker. -- >> great talk. on the recently completed north korean meeting, are you getting a sense that the chinese are getting closer seeing the u.s. argument that nor korea as it

is a is a strategic threat to china or are they still trying to keep it going? in that regard, as that incident has shown, regardless of who is at fault, it seems to have started a more considered discussion about the level of u.s.-south korean intelligenc sharing and all of that sort of thing. do you think it is rrect to be thinking about enhanced u.s. relationship with south korea in the military and strategic sphere of leveraging that on chinese progress and to see our point of view on north korea or is that -- and i mixing apples and oranges? thank you. >> let me begin with a few general observations. first, i will let the chinese speak for themselves in terms of their own opinion on the matter.

i am sure the bill have their own opinions. there is a strong understanding that stability in the region is in the interest of all of the neighbors. aspects of north korea's behavior, particularly their nuclear activities, is a threat to that stability. we have a common interest that binds these talks together to address that as well as other risks of instability coming out of north korea. they're talking about that in twos, threes, force in the region. -- fours in the region. no one can feel at ease about what is going on in north korea. it enhances the common security

of all of north korea's nabors. in terms of our engagement with south korea, it is hard to imagine a much more enhanced fasten the than the unique relationship we have with south korea on a political and a security level. the combined command is a unique example of the two militaries that are deeply entwined. we work together in a remarkably united ways two militaries to address those challenges. with the many specific adjustments is something we will take a look at. go in the terms of the need to get closer, it is hard to imagin -- and that extends to operational, but on the political level, the level of cooperation and consultation between the united states and south korea is unprecedented in my experience.

my experience goes back a ways. i am encouraged and heartens by the degree of we are working so closely together. they are making a strong contribution to our efforts in afghanistan, piracy, and other issues. it is a remarkably strong and bilateral relationship. that is why we work so closely together. it is why we are consulted closely on all aspects of the challenges on the peninsula and that collaboration will continue moving forward. >> i am with the associated press. do seem willing to link the incident to the future of nuclear talks. is there any other gun into can give on what does the u.s. is prepared to do if there is some

linkage to north korea with this attack? >> and there are all of those "if's" in your question. we will do this thoroughly, objectively, and with close cooperation. this is a broad based and objective effort. i do not pose to speculate on how this will turn out because we do not know. i really want the facts to lead us. at the same time, we will follow the facts were they go and draw conclusions from them. i do need to say that we cannot be indifferent to this event. this was a deep tragedy for south korea. they are entitled to a full explanation as to what caused it. we will work with them to do that. until we have clarity about this, i think it is important for us to be careful about how

we move forward leaving open any of the possibilities without prjudging about this investigation. i think right now is a time to be prudent in terms of our actions going forward. >> i was recalling back when i joined the security council jim explained to me that as an academic average like to deal with hypothetical questions. as a member of an administration, never answer a hypothetical question from a member of the media. [laughter] john? >> of china just announced last month that they went to supply two nuclear reactors to

pakistan under an agreement that is probably not grandfathered by the nsg. but the conversations you have with the chinese on this subject? >> as you suggested from your question, i sank i think, the status is with a the iaea. it is under discussion. it is important from our perspective that all countries live up to their commitments. the chinese have argued that it is grandfathered and we're looking at injury carefully. we went to continue to engage on the qstion with th understanding of the iaea. >> i am from the national

defense university of bingo i hoped you could expand and your comments on -- national defense university. i have to expand and your comments on the u.s.-chinese relationship that in figures into the security dialogue. i did not quite here with the use of the dialogue was on common objectives or interests. i wonder if there is, in fact, in meaningful distinction. to dig a little deeper, is a chinese commercial activity of its efficient with our greater coordination with our greater security affairs? >> we had an intensified conversation with china on these issues. we have been to beijing several times and have had discussions with them several times in

multilateral meetings involving afghanistan. i think our objectives are largely coincidental in afghanistan. i think we all seek a stable afghanistan and has an inclusive government, responsible to its people, and that it does not harboriolent extremists that could pose a threat to the united states, afghanistan's nabors, or the international community. -- afghanistan's neighbors, for the international community. we do share some interests. we welcome their investment in afghanistan. creating economic opportunity is part of the long term strategy. it creates alternatives to the illicit production of narcotics and other sources of income for the afghan people investment is important. as long as the investment is transparent, we welcome it.

we have had a dialogue with the chinese about this. similarly, up with respect to pakistan, we can try to play an important role with helping to strengthen the government to help me -- help meet the needs of the people and fight extremism which threatensi the which state. -- which threatens the pakistan the state. it is important that all the neighbors work together. we have been encouraged by china willing to be a part of that effort. >> all right. just a minute. mr. secretary, gering mitchell from the mitchell report. earlier today, we had a panel talking about the clean energy

environment. it was an interesting factoid at the tail end of the conversation between obama and he's chinese character part that reflected, i think it is fair toay, a significant difference within the chinese policy elites on questions related to clean energy and climate. that leads me to ask a question that has different components. are you seeing that kind of dissension on the other two components that you identified in secretary clinton's speech security, global financial crisis, are you seeing that kind of division or dissension? if so, could you describe it? second, is a growing or static?

to the extent it could be done, is there a way to characterize what the nature of political differences of opinion in china are like in the way it would be easier for to do -- to talk about right versus left? >> i do not know if there is a chinese equivalent of the tea party. climate and energy issues, because there are so deeply caught up, obviously they have different impacts in different sectors of society. different sectors are impacted to a different degree by climate change and climate destruction. the cost of adaptation fall on different sectors. that is true in any society. i am confident there is as lively debate by the various

stakeholders as there is in the united states. it is the role of the leadership to provide an overarching framework. i think one of the positive signs that we have seen is that there seems to be growing recognition in china than when you put this all together that china's future depends on china taking significant measures to address this challenge. there are lots of reasons why it is in the chinese interest and probab lot -- a lot of political interests why it moves in that direction. i think it is a significant that, as they think about the contendingoices and perspectives within china, there seems to be a growing way within the leadership to recognize the need to get out in front. it is an their interest to adapt and have an economy that will reflect the inevitable transition to low carbon and i

think there leadership recognizes that china could benefit from being part of the solutton rather than part of the problem. i thinkt is important to remember like so many of these issues, the effort is deeply tied up with more localized forms of environmental damage in ina which gives them a strong incentive think we are talking about black carbon, particulates, lots of other aspects. the leading edge was clean air and clean water. they come together and it gives a strong natural constituency. people are increasingly red of polluted air, polluted water, and the like. there is a recognition that there is a cost to china by being seen as not helping to contribute to the solution. i think that was an important part of what took place in copenhagen, a recognition that china will be viewed in the

court of public opinion just like we will. whatever the containing forces are, i think when we are seeing is that whoever is something this up seems to be willing to move forward, not as much as some would like to see, but at least in the right direction. >> at the end of president obama. -- at the d of president obama 's trip to china, since that time the united states has been engaged in a review of its own investment 3d model. it was reported to have come out in the end of last year and there are still working on it. could y give us a status report? it will there further acceleration or are we still

stuck in the technical level? >> we are still working on it >> how about talking about the indigenous [unintelligible] >> this is a considerable concern to us. it has a huge impact on the united states, our firms, and our investment. in the long ter it is counter productive. the long history shows that this kind of industry protectionism for these tools in the long run tended to distort even the country who is trying to put its own interests first. we think they could benefit from a free and open playing field that global firms, including t u.s., could come compete on an even basis. clearly we would like to see china extend that into the procurement field. i will leave that to secrary geithner to elaborate on that.

i think the chinese certainly understand our concerns and we would hope they would be responsive. we think that in the long term, the system in china is one that will permit a troop level playing field in china bringing world-class invement to china from around the world. >> thank you for your remarks today. in ierviews in beijing across the last two weeks as well as in shanghai, it was always highly praised and almost immediately followed by, we need this by our side, the chinese side, as are opening to give the room for policy innovation and relationships to be built at the working level. the follow-up would go, we would then like a secondary track where are working level officials could talk with your

working level officials to build the kind of ideas that can push up into that space which has been opening up. i do not to put you on the spot. is this something the u.s. side has thought about, is open to, or would be willing to propose it. >> we ink we are doing some of that. i would not call it a tract 1.5. we all recognize that for these things to be effective we have to do the work in between these sessions. many of my colleagues would say that that is with the engagement is. we need to do more. certainly, in one of the meetings between the secretary and a state councilor, we talked about strengthening these ongoing mechanisms so that these are not episodic engagements and

we really do produce sustained work. we clearly could do more and welcome the opportunity to engage on a more systematic basis. >> i am a correspondent for south korea. i will try not to use the termi thef -- term "if." wathe report about china finalized? can this be rearranged in your opinion? >> the only thing i want to say on that issue is that i do not see any linkage between the two issues. we have had a long discussion and we will continue to discuss

the relationship on the korean peninsula. that is something that we think this promotes [inaudible] >>

.

mr. president, i want to congratulate solicitor general kagan on her nomination.

senate republicans will treat ms. kagan with the same courtesy and fairness with which we treated justice sotomayor when she was nominated to the supreme court last year. i and the rest of the republican congress appreciate that at the end of her confirmation process, then-judge sotomayor recognized she had been treated fairly by eryone. unfortunately that has not always been the case with supreme court nominees of republican presidents. the american people know what they want in a supreme court justice. they wantomeone who will apply the law fairl and impartially, without respect of persons as the judicial oath requires. they do not want someone to be a rubber stamp for any representation. she soifs for the president. by contrast today she was nominated for a lifetime appointment to the nation's highest court. the standard of scrutiny is

clearly much higher now. now we must determine whether someone who is a member of the president's administration will be an independent and impartial jurist on the nation's highest court. the american people want a nominee with a requisite legal experience. they instinctively know that a lifetime position on the supreme court does not lend itself to job training. one does not need to have prior experience as a judge before being appointed to the country's highest court but it strikes me if a nominee does not have judicial experience, they should have substantial litigation experience. ms. kagan has neither. unlike justice rehnquist, for instan who was in private practice for 16 years prior to his appointment as assistant attorney general for the office of legal counsel, a job he had at the time of his appointment to the contract.

exploring these questions is what the nomination process is all about. starting today both parties will begin the process of carefully reviewing ms. kagan's brief litigation experience as well as her judgment and academia both as a professor and administrator. fulfilling our duty requires a thorough process, not a rush to judgment. senate republicans will have vigous rebate on the importance of wall justice under law. this principle lies at the very heart of our judicial system. we will diligently review ms. kagan's record that she has [inaudible]te experience to

>> the committee will come to order. first, let me thank chairman leahy for allowing me to chair today's hearing. today we will consider the nomination to associate attorney general of the united states and the solicitor general of the united states. i agree with chairman leahy that this committee should be moved quickly to restore the morale

and integrity of the department. i am pleased that this committee recently confirmed eric holder to be attorney general of the united states with the strong bipartisan vote, and the full senate overwhelmingly confirmed his appointment shortly thereafter. the associate attorney general is the no. 3 position at the department of justice. this position overseas a wider range of departments, including civil rights, antitrust, tax, and the office of justice programs. the candidate comes to this committee with an expressive range -- with an impressive range of experience in both the private and public sector. for the final two years of the clinton administration, he served as deputy assistant attorney general, rresenting nearly every federal agency in complex civil litigation. he supervised a staff of 100

attorneys responsible for defending the constitutionality of federal statutes, defending federal agency actions and regulations, representing both the diplomatic and national security interests of the united states in courts of law, and conducting a wide range of other litigation. he also supervised the litigation against major tobacco companies. he worked for many years in a washgton law firm. his caseload included constitutional, intellectual property, and other cases. most recently, he served as part of the justice department transition team for president barack obama. he is a graduate of brown university and harvard law school. i also want tknow that he has received the endorsement of several law-enforcement organizations, including the national fraternal order of

police and the national center of missing and exploited children. these nominations -- these endorsements will be made a part of the record. elena kagan comes to the committee with a wide range of experience, having served as the dean of harvard law school, a lawyer in private practice, and a legal clerk to a justice of the supreme court. a graduate of princeton university and harvard law school, she clerked for justice thurgood marshall. while teaching law school at the university of chicago she took on an assignment as special counsel to senator joe biden. she assisted in the confirmation hearings of the supreme court justice ruth later ginsburg -- ruth debater ginsburg. -- ruth bader ginsburg. in the white house counsel's

office, she worked for the legislative offices analyzing statutory language and enacting policy. in the domestic policy council's office she played a role in t executive branch advocating policies on a wide variety of issues. in 1999 she left government and began serving as a professor at harvard law school teaching administrative law, constitutional law, and civil procedures. in 2003 she was appointed to serve as dean of the harvard law school, becoming the first woman being in the school's history. in her five years at harvard law school she oversaw the academic and non academic aspects of the law school. i will enter a letter from the law school in support of her nomination. the solicitor general of the united states holds a unique position in our government.

the occupant must be charged with conducting all litigation for the united states on behalf of the supreme court. she is often referred to as the tent justice. -- the 10th justice. the office participate in about two-thirds of all the cases that the court decides each year. former solicitor general's and joined with six other solicitor general's of both parties in endorsing her nomination. i will make that record also part of the record. it is very complementary of our nominee. at the same time we expect the solicitor general to exercise independent judgment. the office is charged with vigorously defending statutes

enacted by congress against constitutional challenge. the office supervises all lower court appellate litigation, and decides to appeal positions that are adverse to the government, and what positions should be take in these cases. i want thank the nomees for being willing to serve their country. at this time, let me recognize the republican leader on our committee, senator specter. >> thank you, mr. chairman. at the outset, may i say that your work on the committee has been outstanding. you have been here a little more an two y, and you are already the chairman of the committee, acting chairman of the committee, which is quite a testimony to you.

we have forged together closely in those two years -- we have worked together closely in those two years, and it is nice to work with a lawyer's lawyer, which you are. i welcome the two nominees. both present outstanding academic credentials. in the situationith dean kagan, she is now the dean of the harvard law school to supplementer outstanding academic work in the professional world. the senate has a broad responsibility under the constitutional conrmation to make increased beyond even extraordinary resumes like those presented here today. in evaluating president barack obama's nominees, we see perhaps

what is a cautionary word during the campaign, when candidate obama had this to say about judges. now, the solicitor general is a substantially different from a judge, as is the position of associate attorney general. but in trying to evaluate, i think it is there to look at philosophy. this is what candidate obama had to say. >> unique -- "you need someone with the heart and empathy to understand what it is like to be a teenage mom, to be poor, african-american, gay, disabled or old. that is the criteria by which i will be selecting my judges."

i agree with the need r consideration, no doubt about it, on the categories identified by candidate obama. but we also have to make an inquiry as to the commitment to the law. nominees for key positions in the department of justice must follow the law. if there are to be changes made, it is well established as a matter of philosophical doctrine, that it is up to the legislature to do that. when the kagan came to see me -- when the dean kagan came to see me, i asked her about a number of things regarding that. i asked her what a nominee would

think about a given situation contrasted with the advocacy role which sheeps sharply distinguishes. she -- she srply distinguishes. she rresents that she can be an advocate as solicitor general of the positions she disagrees with philosophically. if somebody is arguing something which they disagree -- which they deeply disagree with, i wonder how effective they can be. elena kagan has a very deep and ews. i cite one in this introduction, and i talked to her about it.

it regards "don't ask don't tell." i can understand the challenge to the underlying basis of the solomon decision, but this is wh she said. "as dean- as dean, as she reinstated military recruiters to the harvard law school because to do otherwise would have been to forfeit a great deal of federal funding. she noted that the "action caused her deep distress."

>> as a moral and justice of the first order. how can you, and could contras cannot be an effective advocate? this bearsn the ability to apply the law. it was countered that the solicitor general has the obligation to uphold the constitutionality of the law. there is a song -- is strong resumption of constitutionality. i commented to her about a case when i was district attorney with the pennsylvania statute treating women differently than men put it there were given a determinate sentences so that if they were convicted of larceny, they went to a woman's priso and having served the maximum, they could be kept longer.

when i was asked to defend the statute, i refused. they brought in the state attorney general who defended the statute and it s stricken. there is a real issue as to the range of advocacy or perhaps the intensity of advocacy. i make this very brief comments to set the parameters and we have also the associate attorney general. we have our responsibility to uphold to make these inquiries under the constitution to decide whether we should consent and a. >> thank you. it is an honor to appear here.

dean kagan and that both attended harvard law school but it is obvious she is much younger and a much better lawyer. i have been following her career with great pride since her days not only at harvard but as she clerked on the u.s. court of appeals and for justice thurgood marshall. as the chairman indicated, she went on to teach law at the university of chicago and served in the clinton administration and returned to harvard law school in 1999. during her tenure there, she has drawn acclaim as a pragmatic problem solver with rich illogical -- with a logical pride. she has also won praise from current and former students who have observed our country in uniform for creating an environment that ihighly supportive of students to of

served in the armed forces. i know that because i have met with many of these young men and women who served. they are uniformly praised full of dean kagan. she is eminently qualified to become solicitor general. it is not just her impressive run -- resume and billion mind, her wisdom and temperament and -- brilliant mind, her wisdom and temperament. she gave a speech at west point. she was invited to speak to the cadets. she told the cadets that our nation is traordinary because as she sai which lives in a government of laws. she used a place on day west point campus called constitution corner. this is a place in which the cadets see a plae that says loyalty to the constitution.

she understands that it is our duty to the constitution that is preeminent. she spoke about how our law and dedication to law and the rule of law is especially difficult during trying times. she saw these men as examples to try to uphold the law and trying circumstances and put doing the right thing i've been -- above all else. if confirmed, i believe she will be an outstanding solicitor general. she brings exceptional qualifications and will be tough, fair, and and uphold the constitution and the people of the united states. thank you. >> thank you. we appreciate you being here. at this time, i would ask that the witnesses come forward. if you would stand in order to

be sworn in. do you affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth, so help you god? thank you. perhaps the best way to start is to thank you for being here and appreciate your families being here. and at this time, it might be appropriate if you introduce the members of your family. we already heard from one. if we could hear from the rest. >> i think you met by sun. -- son. [inaudible]

>> my brother and lock, kevin, who made the trip from wisconsin. my extended family. [inaudible] drdaughter.brother's i've brought some family from cambridge. some of my great friend from harvard law school the former solicitor general is here. john manning. all great friend of mine and i

appreciate their coming down to support a. >> we welcome your families. we know the sacrifices they have to make in regard to your public service. i want to acknowledge for the record that o senators wanted to be here but ey were called upon on other senate business and we will allow their statements to be made part of the record. >> mr. chairman, senator specter d members of the committee cannot thank you for giving me the of -- to ve me the opportunity to appear as a witness. i am grateful to the president' for being considered and disposed. i would like to thank the members of the committee and their staff met with me who will star what i have will be a dialogue about issues facing the country. there is deep knowledge about the many challenges ahead and i hope i will have the opportunity to work with you to overcome

them. i would like to thank senators web and warner who have had their statements submitted to the record. i want to thank my wife, christine, especially now with my new baby arriving. she is here. you've already met my son, james. i also want to thank my mother who has been an inspiration to me for many years, not the least of wch is watching her as a single parent take care of me and my sister and go to law school at night. missing from the large contingent behind it is my father. he passed away in 02 after a long struggle with cancer. i think of him today because my father was one of the career professionals at the heart of the department of justice. he made his career there and refused to retire until a day or two before he retired because it was what the find him.

my reverence for the department began through him. i worked summers at the immigration and naturalization service. i had the opportunity to experience a lot of different aspects of the department, inuding visiting the men and women on the border in san diego to lure the extraordinary challenges they face and a remarkable job they do. in my time as an intern, i have the of virginity to talk with the attorney general -- i had the opportunity to talk to the attorney general. when i completed law school, i clerked for the u.s. district court for the district of columbia. in that job, i saw the best of a government lawyers prosecuting cases from iran contra to drug gangs on the streets of dc and defending the u.s. in cases ranging from the savings and loan crisis to environmental regulation of nuclear power plants.

all those experiences left me with a deep appreciation for the department. that appreciation increased exponentially later in my carr when i first serves as counsel and later as deputy assistant attorney general. the men and women who served from administration to administtion of put their lives on the line every day, the lawyers and staff whose goal is fair and even-handed application of the law are remarkable and deserve more praise. i am honored to have been nominated and to have the opportunity to work among the career professionals. i have no illusions about the challenges that are faced today. they derive from a mission which has expanded greatly since september, 11. my vision is a justice department of which all

americans can be proud. a department that at every level mix the even-handed application of the law without regard to partyr personal views. a department that works in partnership with state, local and tribal authorities to most efficiently protect the public. the department that is transparent and gives the american people confidence. and a department that works with this committee and others to collaborate on the many challenges aad. i look forward to answering your questions. thank you. >> thank you. >> thank you, mr. chairman. members of the committee, i am deeply honored to be sitting here today. i am grateful. i am grateful to the predent for nominating me to this important position. i am grateful to the attorney general for escorting me and to the committee for holding this hearing in considering my nomination. i am particularly grateful to the many members on both sides of the aisle who met with me

prior to this hearing. i enjoyed those talks and i thank you for them. i want to share a couple words about two other people who are not here today with me. i wish my parent could have lived to see this day. my father was a lawyer himself and took great pride in my professional accomplishments. he died about 15 years ago. he lived to see me clerk for the supreme courtnd become a professor at university of chic. my mother died recently so that is particularly difficult for not seek high-powered careers and for that reason would relish meet doing so. both of my parents wanted to me succeed in my chosen profession. more than that, both drug and to bid the importance of service and character and integrity.

i pray every day that i live up those standards. i hope one other person is looking down on this hearing room today. as you know, i had the privilege of clerking for justice thurgd marshall, the greatest lawyer, i think, of the 20th century. justice marshall had some very good jobs through his life. he alws said the best, bar none, was being solicitor general. i am sure there are many reasons for that. i have been thinking recently about one in particular. i think he must of been so deeply moved to walk into the most important court in this country when it was decided its most important cases and to state his name and to say i represent the united states of america. i think he would have liked the former clerk of his to be nominated for the same job and if confirmed, would be able to say those same, most thrilling

and most humbling words for a lawyer. to have the opportunityo lead the solicitor general's office is the honor of a lifetime. as you know, this is an office with a long and rich tradition. not only of extraordinary legal skill but also of extraordinary professionalism and integrity. that is due in large measureo the people who have led it. i especially want to it knowledge general olson and gar for their superb service during these last eight years. been a time of some difficulty for the justice department, they have maintained the highest standards of the office and they have served their client, the united states of america, exceedingly well. of course, they have been joined in doing so by the career lawyers and the other public servants and the solicitor general potts office. these men and women can be

called the finest law firm in the country and they represent the gold standard in public service. the solicitor general's office is unusual in our government. it those responsibilities to all three of the branches and our system of separated powers. because of this striking feature of the office, the solicitor general traditionally and rightly has been accorded a large measure of independence. most obviously, the solicitor general reports to the attorney general and through him to the president and defense the break relations, polies and practices of the executive branch when these are challenge. in this role, the solicitor general is the principal advocate of the executive branch and the court of the united states. at the same time, the solicitor genel has no less critical responsibilities to congress. most notably, the vigorous

defense of the statutes of this country against constutional attack. traditionally, outside of a very narrow band of cases involving the separation of powers, the solicitor general has defended any federal statute in support of whichny reasonable argument can be made. i pledge to continue the strong presumption but the solicitor general's office will defend each and every statute enacted by this body. finally, the solicitor general's office hashe unique obligatio to the supreme court of the united states. it is frequently said that the solicitor general serves as the tent justice. i believe senator cardin made reference to that phrase. i suspect that the justices think the solicitor general as more as the 37 clarke. regardless, the solicitor general must honor the principles and exercise care in

invoking the court's jurisdiction and mosimportant of all, must be scrupulously candid in every representation to the court. in this sense, i completely agree with what senator specter just said. the most important of l the responsibilities is to the rule of law. it would be an honor to serve as solicitor general and i commit that if the senate sees fit to confirm it, i would do everything possible to live up to the great tradition, expectation, and responsibility of the solicitor general's office. thank you very much thank you. we are going to have seven minute rounds. i will try to stick to that time limit for myself. let me start with the tradition of the department of justice

over many years of being the premier agency for the people of this country. protecting the rule of law and representing the peoplof this nation. at holding anybody who violates this loss accountable, even if it is the president of the united states. in the last few years, there have been serious problems with partisan politics played within the department of justice as it relates to the recruitment a promotion of career attorneys as it has been in selecting what type of cases will be pursued, overriding the advice of career attorneys in many cases for partisan reasons. i want to get your assessment, if confirmed to be the number 3 person, as to how you will approach the appointment, retention, recruitment of career

attorneys, their assignments, and what impact partisan politics will play in regard to those decisions. >> senator, with respect, i think the answer for the last part of your question is none. you have identified an area where the justice department has come under criticism, including from the own inspector general. concerns about partisanship and hiring. that is something that under the law enacted by congress is simply inappropriate. an attorney at -- important strides have been taken that problems of the past are not current problems ofhe justice department. i think it will be incumbent on the attorney-general and others as they are nominated and confirmed to take a serious look at the policies governing department and to take whatever additional steps are necessary to ensure there is no partisanship and hiring or

assigning attorneys. my exxerience in working with the career professionals at the department is an extraordinary group and management in the department would be wise to listen to their recommendations. i hope to have the opportunity to do so. >> that is the answer i expected to hear. let me just caution you. you are responsible for the people that you supervise within the department of justice. we expect that message to be very clear to all the people. partisan politics will not play a role in the deployment of career personnel. i am pleased to hear you say that but i want to make sure that becomes a priority and a message that is clearly understood at all levels within the department of stice. the second point i want to raise is the civil rights division.

what has happened in the civil rights division in the last eight years. the number of significant cases have been diminished greatly. resources made available to that office has been reduced. i want to know what priority you tend to place -- you intend to place on the civil rights division. >> the attorney general has made clear that will be a significant priority of his. there will be 8 -- it will be a significant priority of mine. you identified both set of concerns about partisanship that have been the subject of a recent inspector general report that was quite disturbing. as well as the reality that many of the civil litigating component is the one that has declined in terms o resources even though the number of statutes being enforced in the job at has to do is greater than it was in 2001.

i think it is a very high priority to focus on the kitchen and make certain -- to focus on the division and make certain it will have significant responsibilies following the 2010 census and the management of the department has to give it special focus to ensure it is ready. >> dean kagan, buy and sell -- to support your statement about enforcing the laws regardless of personal views. that is your responsibility to the solicitor general. i want to talk about the potential conflict between the laws that congress passes and the inherent power. this has been an issue that has come up in regards to detainee rights and the use of in his techniques for interrogation. i want to know how you will approach the issues when we are

talking about fundamental rights and protection of the separation of branches of government. speaking as a member of the senate, i want to make sure the solicitor general is sensitive to the role that you can play in making sure that the appropriate protections are maintained. >> thank you. it is an extremely important question. every solicitor general nominee who has sat at this table has always said there are two very rare exceptions where solicitor general will not defend the nice days when there is simply no reasonable basis to do so in the second is when that statute and fringes directly on the powers of the president. i will say the same thing to you. there is a category of cases in which statutory defense might be an appropriate because it

violates separation of powers concerns. i think that is an extremely narrow category of cases. i would go back to the youngstown framework that i know so many of you are familiar with. that framework says that when congress authorizes presidential power, presidential power is at its highest. when congress is silent, we are in middle ground and where congress says no to presidential power, denies presential power, presidential power is at its lowest. there are occasional times when presidential powers still exist. think about if congress were to tonight and a power on the president. you would say there is a constitutional commitment here. that category of cases, i think,

is exceedingly narrow ann that is how i would approach the problem that you raise. >> thank you for that response. i would also hope there would be some transparency in making those judgments so there is an opportunity for input and challenges of the fundamental issues. with that, i recognize senator specter. >> thank you, mr. chairman. i sent you a letter on the issue of congressional oversight and told you i would be asking you at the hearing today and my question is whether you agree with what the congressional research concluded was the scope of congressional oversight when they say doj has been consistently obliged regardless -- regardless of its litigation is pending.

the investigating committees or provided the documents that included prussic your -- prosecutorial memoranda, fbi investigative reports. do you agree with congressional research statements of the congressional authority on oversight? >> the pass--- the passages you provided, i agree with the description of the scope of permissible oversight by congress that reaches all aspects on which it could legislate. i think that passage does not discuss interests of the executive branches in certain circumstances and the process of accommodation that goes back and forth and has historically between the executive and legislative branches. >> were to supplement your answer by specifying what kind of ecstatic witted circumstances you see to deviate from that standard? >> i want you to supplement your

answer in writing because i only have seven minutes. >> i will do so. >> you said you will adopt that as a generalization but there might be extenuating circstances. please provide that to me in writing. "the washington post" has an account today on the state secrets doctrine. it was invoked as the predecessor in federal court in opposing the reinstement of the lawsuit that alleges that boeing flew people to cntries where there were tortured as part of the cia's extraordinary rendition program. i know you dealt with state secrets doctrine. do you think this is a wise use of the state secrets doctrine as reported in the post today?

>> i think with respect to the question of any particular case, it would require for me to have more knoedge about particular classified information. >> would you take a look at the case and the statute which senator kennedy and i have pending and give us your judgment on that? >> i will, sir. >> there have been a large number of cases by the department of justice in taking monetary fines in the face of gigantic malfeasance on a company that d a dollar billion per year and they got a $1.70 billion fund. i would appreciate if you took a look at those cases. those cases look as if the funds are really license to violate

the law. as opposed to ariminal sanction which has some real teeth. one more question before moving over to dean kagan. . . >> you said that congressional actions in giving jurisdiction to the federal court -- you were the attorney on the case. you said that when congress legislated to give jurisdiction to the federal court, that the enactment of the federal statute in this case is "not an exercise of legislative power but trial by legislature, something that exceeds congress'' article one

power." i belieee blocks is to establish jurisdiction. do you stand by the assertion which you made in that brief? >> with respect to that assertion, the argument was that congress cannot do any vehicle overturned a prior final court judgment. which i think' the arguments in those concerns were raised going back to the founding fathers. that was an issue that no court ever ruled on. >> there is concurrent jurisdiction between the state courts and the federal courts. double jeopardy, the state prosecution does not bar the federal government from initiating a prosecution on the same facts. this is an exercise in congressional authority to

establish jurisdiction. why not? what the argument be made in that case was that, the effect of congress' enactment was to read-litigate issues that had been in the state courts. >> that may be the impact. would you supplement your answer with why you think congress cannot have the authority to determine federal jurisdiction? >> i will do that. >> dean kagan, coming to the citation that i mentioned earlier about how strongly you felt on the solomon case, you wrote a memo for justice marshall which involved the

adolescent family life act which authorized federal funds for religious organizations designed to discourage teen pregnancy and provide care to pregnant teenagers. the supreme court upheld the statute. your memo said, "it would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching ." i asked you about the solomon military issue where you had very strong moral objections, but you assert that you can't function in an advocacy role notwithstanding your own personal views -- that you can function. how would you distinguish your confidence that you acn can do--

you can do that in light of what you say here? i understand what you say that religious organizations might be inclined to project some of their religious doctrine, but isn't that an inevitable consequence even for a skilled advocate who feels very strongly about the matter with respect to the capability to really do the right job in advocacy? >> senator, thank you for raising that memo. i first looked at that memo, thought about it for the first time in 20 years a couple days ago when it was quoted on a blog. i looked at it and thought, that is the dumbest thing i have ever heard. [laughter] >> you don't have to go any further. [laughter]

are you telling us you won't make that same mistake again? >> you should never make the same mistake twice. >> i wish i could follow that advice. [laughter] one final question, mr. chairman. in a whole series of memos which you sent to justice marshall and let me join you in extolling the virtues of justice marshall, there was a case in which you followed a pattern in which you had in five other memos where you expressed concern over what a majority of the court might do as a reason for denying serve. this involves an admission. your memo said, "i think the admission of this statement is outrageous."

then you expressed "worry that the court reached the opposite results of the ambiguous statements in the future will be construed in favor of the police." and you expressed similar sentiments in five cases, which has all the appearance of an overarching philosophy here in deciding which cases to decide. isn't it really the function to decide whether an injustice has been done when you say it's outrageous and not to look to a broader public policy concern as to what the courts might do as it affects other cases, would you have defended constitutional rights involved, isn't a defendant in title to have defense on the merits of his case without having a decision as to whether the court takes

jurisdiction decided on some broad philosophical grounds? >> that is a very interesting question, senator. the supreme court's jurisdiction is discretionary. if the supreme court does not take every case in which an injustice has been done even if an injustice had been done, in that case, which i am not sure of. i don't have a recollection of that case. for having thought about it 20 years as well. let me look at my role as a clerk in justice marshall's chambers. we produced an enormous amount of paper for justice marshall. he was not in the pool, so we wrote memos on literally every case where there was a petition. that is hundreds and probably thousands -- i am sure there were hundreds of criminal cases -- again, there was a blog post about five of them. i don't want to say there is nothing of me in these memos.

you first asked about the jendrick case. i think it's actually fairly new look at the memo to think that i was stating an opinion, no matter how wrong it may have been. but i think in large measure, these memos written in the context of you are an assistant for a justice, you are trying to facilitate his works and to enable him to an advance his goals and purposes as a justice. most of what we road was in that context. i was a 27-year-old pipsqueak. i was working for an 80-year old giant in the law and the person with strong jurisprudential and strong legal views. he knew what he thought about certain positions. for better or worse, he was not really interested in engaging with his clerks on principles. he was asking us in the context of those talks to channel him

and to think about what cases he would want the courts to decide. in that context i think all of us were right to say here are the cases which the court is likely to do good things with from your perspective and here are the ones where they are not. i think that is what those five that you mentioned were doing. >> thank you, mr. chairman. >> senator? >> dean kagan, congratulations on your nomination. i was personally delighted that you were appointed and i have followed your career and i've enjoyed working with you on a number of issues. although women have made great strides in the legal profession in recent decades, if the nomination of the first female solicitor general is a first for the profession. it is no small thing. president obama should be congratulated on making the nomination. you touched on an issue in your

opening statement. i think it answers whatever concerns some in the senate or on the outside might have on your personal views you've taken in your career. i asked the question of ted olson when he was nominated, the senator just passed the mccain feingold bill. mr. olson written the following about 20 years earlier at the harvard journal of public law and policy." -- "the law does not withstand are antipathy towards pilaus. to be a pulled the constitutionality of congressional enactments, whether we like them or not. if we are the government's lawyers even if we feel it is questionable constitutionality, we must enforce it and depenfend it." do you agree with what ted olson wrote? >> absolutely. one assumes a set of

responsibilities with which the defense of statute is one of the most critically important. you defend those statutes whether you would have voted for those statutes or not. i know that ted olson would not have voted for the mccain feingold bill, but he and paul clement did an extraordinary job of defending that piece of legislation, which i think you'll agree. that is what the solicitor general does. but i agree with that. he did a superb job. -- >> i agree with that. he did a superb job. i could've swornhat he was persuaded because of the job he did. >> for that day, he was peuaded. that is all you need. >> let me ask you about the conflict of interest restrictions. it is somewhat ironic. as i mentioned, i was pleased with how the justice department handled their responsibility to the king -- to defend that bill.

he is involved -his been involved in challenging the constitutionality of the statues. -- since he left office, he has been involved in challenging the constitutionality of those statutes. i'm somewhat concerned by that. his challenge in the statutes that he defended ably as solicitor general. president obama has been very tough ago restrictions -- ethical restrictions, going well beyond revolving-door limitations. can you review the ethical restrictions that exist for the solicitor general's office and determine whether more descriptive rules ought to be in place so that you did not end up on the other side issues that you directly for debate in while in government service? -- that you directly participate in while in government service? >> will be honest. i do not know much about this. -- i will be honest. i do not know much about this. i will be going back to

academia. i will not argue against anything i have defended. it is an interesting and important question and i will look into it. >> thank you very much. mr. perrelli, i am pleased to have decided to return to the department of justice. i want to follow up on the state secrets document issue. i didn't -- i have been concerned by the invocation of those. courts tend to be very deferential to these privilege claims. there is an opportunity for abuse. yesterday, there was a press report that the department of justice has told u.s. court of appeals for the ninthircuit that it will continue to assert its state secret privilege against five men who cling to be the victims of rendition -- to claimed to be the victims of rendition. -- who claimed to be the victims

of rendition. justice department to ensure the privilege is not invoked to hide from the american people information about the government's action that they have a right to know. this administration will be open and transparent with our national security obligations. i am glad to hear this review is underway. i will follow this issueery closely. i will not ask you about this case. but will you commit to me that if you are confirmed, you'll arrange for a classified briefing on this case, so that i understand the decision you have made? >> with respect to that case, i would need to consult with others at the department about what information is most appropriate to be shared. i will say that my background and experience in this area has let me see the issue from all sides. as a law clerk, and worked on iran-contra and the difficult issues and how you move forward in a crimina case where gossip -- were classified issue is part of the matter. -- where it classified issues

are part of the matter. -- were classified issues are part of the matter. -- whe classified issues are part of the smatter. i also have represented companies to more than -- whose more than billion dollars claims were held not to be liable because of state secrets privilege. i look forward to being part of that review. >> you give me an answer about whether i will get a classified briefing. >> i will. >> i believe that you indicated to senator specter that he would take a closer look at the legislation that he and senator kennedy introduced the last congress, which was approved by this committee, to give better guidance to the courts on how these clans a state secret privilege should be handled. -- h these claims of state secret privilege should be handled. >> i look forward to it.

>> there are claims that this important a decision -- it is very important that the department did behind ese claims. i understand your response 04 divisions of the justice department that deals with civil cases, antitrust, and oers. these divisions has a criminal enforcement section, which wld also supervise. what in your background gives you the experience needed to take on these criminal responsibilities? >> i appreciate the question. in my prayer service, i served as counsel to the attorney service, in my prior served as counsel to the attorney general. i had a supervisory role. it was over both the civil and criminal aspects, including a crime, environmental crimes. my experience dovetails well with those aspects of criminal jurisdiction that fall within the associates role. >> thank you.

>> senator coburn? >> welcome. dean kagan, you earlier explain ur role of all three branches of the federal government. what if we have a statutehat has been previously signed by the executive branch, passed by congress, and an executive order that undermines the statute? in that case, you would have to figure out whether you support the executive order or you support the statute. how would you determine that? >> is a very interesting, hypothetical question. -- it is a very interesting hypothetical question. the firsthing i would do is really reached outo the people within the government. both within the administration and also to congress. i would try to direct what is

going on and to requires representation. there would be a lot of work to be done. i would talk to people both .hose responsible and t i will give you my gut instinct. in a case like that, the defense -- the obligation to defend the statute continues. the same exceptions are the only reasons in which you would not defend the statute, either if there is no reasonable basis in law, and it would not appear to me that in that -- that an e.o. would call into question this. it would also depend on a core element of executive power. there were deep those two exceptions, both extremely narrow. -- there would be only those two

exceptions, both extremely narrow. my guess is your hypothetical question would not fall into either. >> the only real critici you have is that y have not been a litigant in the past. sendposition -- i do not patients to the professors university unless their experts in the field to a practice, rather than just thought -- who have practiced, rather than just taught. have never been a justice or a litigant. i have no doubt -- you have never been a justice or a litigant. i have no doubt that you're up to the task. how will you prepare yourself? >> it is a very important question. i am very confident that i am up to this part of the job, as i am to the many other parts of the job. >> i have no doubt. >> i will tell you why did you get up to that podium, -- i will

tell you why. when you get to the point of the question is less how many times have you been there than -- when you t up to that podium, the question is less how many times have you been there, then what you bring with you. i have studied the particulars of the constitution over administrative law issues. i bring up some of the communications skills that have made me a famously, excellent teacher. [laughter] i hope i bring up strong, legal analytic skills. this is for you to determine at the end. i will bring up those kinds of skills and excellent judgment. i hope what is most important is a kind of candid and direct way of speaking -- i think i also bring that. i should also say that i will,

by no means, be the first solicitor general who has not had extensive or any supreme court argument experience. i will give you a few names. ken starr. several people have not appeared before the court prior to becoming solicitor general. >> some of thehad some difficulties in their presentations before the court. i'm not accusing you of that. [laughter] >> now i want to know who you mean. [laughter] >> come and visit with me and we will have great conversation about that. . perrelli, i have a few questions for you thank you -- for you. thank you. >> you are the most important member of the committee to me, at least today. the department of justice -- >> the department of justice is

implemented a lot of our nation's top exploitation laws. the one thing that i think the attorney general and dulles got right was establishing -- attorney general gonzales got right w establishing these. we enforce these -- will you enforce these or seek to make changes? >> with respect, it is likely that the responsibility of that rule does not fall in my purview. in terms of enforcement of the act as well as defense of the act, in the event that is challenge, which may well come under this, i would seek to enforce the law. i would defend a lot of any reasonable argument could be made. i've done that in the past.

i have depended most of these statutes. we defended the child online protection act, for example. >> the same would apply to that act and the act from 1988. >> to the best of my knowledge, we would be most likely -- those would be most likely to fall under criminal jurisdiction. >> does any of your past experience in terms of tho that you are defended or advocated for will affect your ability to enforce, in the right manner, those appropriate laws? >> no, i do not. >> thank you. i participated in the legislation, adding child exploitation and enhancing the enforcement of law. it enhances criminal penalties for using the internet to violate those laws and expands the reporting require